B.N.D v K.C.D (84950/2019) [2026] ZAGPPHC 917 (20 August 2026)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 84950/2019








In the matter between:


B[...] N[...] D[...] Plaintiff


and


K[...] C[...] D[...] (BORN M[...]) Defendant



DATE OF JUDGMENT : This judgment is issued by the Judge whose name is reflected
herein and is submitted electronically to the parties/their legal representatives by email. The
judgment is further uploaded to the electronic file of this matter on CaseLines by the Judge’s
secretary. The date of the judgment is deemed to be 20 August 2026.




(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.

20 August 2026 _____________________
Date K. La M Manamela

JUDGMENT


Khashane Manamela, J
Introduction
[1] The plaintiff, Mr B[...] N[...] D[...], is married to the defendant, Ms K[...] C[...] D[...]
(born M[...]) in community of property since 1998. Their marriage has reached a stage where
they both agree that it has irretrievably broken down and disintegrated with no reasonable
prospect of restoration of a normal marriage relationship between them. They both appreciate
that divorce is inevitable , but they disagree on the patrimonial consequences of their
marriage. The plaintiff s eeks an equal division of the joint estate he shares with the
defendant. This is a natural consequence of a marriage in community of property . The
defendant, on the other hand, seeks that the plaintiff be ordered to forfeit the patrimonial
benefits of marriage in community of property , as envisaged in section 9(1)1 of the Divorce
Act 70 of 1979 . The main reason s cited to support the forfeiture claim are the plaintiff’s
extramarital relationships over the years and his dissipation of assets. The plaintiff denies th e
allegations, but they will form a significant part of the determination of forfeiture, below. The
parties also agree that the defendant will be the primary caregiver of their minor child, with
the plaintiff allowed reasonable rights as to contact . But, there is no unanimity on
maintenance of the minor child.
[2] The parties, married initially by way of customary law during 1998, concluded a civil
marriage in community of property on 24 February 1999. Evidently, t he marriage had
endured for more than twenty -seven years. But, the parties have lived separately since May

1 Par [24] below on the reading of s 9(1) of the Divorce Act.

2019. The plaintiff says that the defendant chased him out of the ir marital home , but
according to the defendant the plaintiff left of his own accord.
[3] The plaintiff caused summons to be issued against the defendant in November 2019 in
terms of which he, primarily, seeks divorce and division of the joint estate. He also sought
that the primary care of the minor child be awarded to him and and payment of maintenance
towards the minor child by the defendant . The parties a dopted a minor child (confidentially
referred to as TND, the minor child or the child) , born during 2009 . The minor child is
currently under the primary care of the defendant. The plaintiff alleged that the defendant has
denied him any contact with the minor child. This was d enied by the defendant . But at the
commencement of the trial the plaintiff conceded that the defendant should be the minor
child’s primary caregiver and with him granted reasonable contact rights in respect of the
child. The only unresolved issue concerning the child is maintenance.
[4] The matter was enrolled for trial and came before me on 26 November 2025, when
Mr DJ Sibuyi appeared for the plaintiff and Ms KJ Matabane appeared for the defendant. The
trial continued on 27 and 28 November 2025. On the latter date, the part-heard matter was
postponed sine die (without (fixing) a day (for a further meeting or hearing) )2 for closing
argument. Closing argument by counsel was by way of written submissions. The last of the
submissions was filed on 14 February 2026, when this judgment is d eemed to have b een
reserved.
[5] Although, I am grateful to counsel for the detailed material filed by way of closing
argument or heads of argument , I think in some respects the material furnished was
unnecessarily duplicated and stretched. Hundreds of pages were filed in this regard. Counsel
for the plaintiff filed what he tagged heads of argument , supplementary heads of argument

for the plaintiff filed what he tagged heads of argument , supplementary heads of argument

2 VG Hiemstra and HL Gonin, Trilingual Legal Dictionary (3rd edn, Juta 1992).

and even replying heads of argument often repeating and remodelling the same facts . Most
part of the material filed is argumentative and even represents a contest of virtue between
counsel, perhaps less real than imaginary. Counsel strongly criticised each other on the
material filed . For example, counsel for the defendant submits that the h eads of argument
filed by her counterpart for the plaintiff contain several material inconsistencies, inaccuracies,
and misrepresentations. She felt strongly that same ought to be brought to the attention of th e
Court. This is categorically denied by counsel for the plaintiff. I take the accusations and
counter-accusations exchanged by counsel very seriously. For the Court should confidently
rely on the material filed by counsel – as its officers – especially by way of written
submissions. Amongst the tangible benefits that could be yielded by reliable submissions by
counsel is expediency. The Court would ordinarily utilise the submissions as reliable pointers
and compass to navigate the evidentiary material in the matter and the authorities cited . The
by-product of all these is an efficient and speedy outcome. But I will let nothing turn on all
these, save to state that I had to tread with extra care when considering the submissions by
counsel under the circumstances. These contributed to the regrettable delay in the delivery of
this judgment.
Some aspects in the background of this matter
[6] The parties, as stated above, were married in 1998. At that time they resided together
in the Mbombela (Nelspruit) area of Mpumalanga. But, when the summons was issued they
lived separately in the environ of Pretoria.
[7] In the early to mid-years of the marriage between the parties, the plaintiff worked as a
teacher in s chools around Mpumalanga. He quit teaching to work for the Mpumalanga
provincial government and, thereafter, for a district municipality. The plaintiff says that he is

currently unemployed, without a stable source of income and struggles to defray his living

costs. He, further, says that he is dependent on loans and assistance from friends including for
the rental of a flat he occupies, situated in Gezina, Pretoria. The flat costs him around R7 500
in monthly rental. He also complained that he is without access to bank accounts or assets
capable of generating an income in the joint estate. In fact, th e defendant has since around
2017 excluded him or shut him out from the financial affairs of the estate, he adds, despite
the divorce proceedings still on -going. On the other hand, the defendant blames the plaintiff
for the deterioration of her financial position. She has been materially prejudiced by the
plaintiff’s continuous and vexatious litigation . This culminated in the freezing of her bank
accounts. She has been left without access to income and unable to maintain herself, the
minor child, and the plaintiff’s other children. This is denied by the plaintiff. He points out to
his success or favourable court outcomes in the material litigation to dismiss the defendant’s
accusation that he has pursued vexatious litigation.
[8] The dispute in this matter being heavily patrimonial in nature, it is vital to state that
during the course of the parties’ marriage immovable properties were acquired, including the
following:
[8.1] A building situated in Granite Street, Nelspruit called Sikhulile Guesthouse .
This structure was converted into student accommodation of 22 rooms yielding a
monthly rental income of R4 000 per student.
[8.2] A building situated at 1[...] A[...] V[...] B[...] Street, referred to as the White
River office park. The plaintiff says that the property was leased between 2017 and
2025 to the provincial government with initial monthly rental of around R75 000. This
was disputed by the defendant when she testified. She told the Court that the property
was not leased directly to the government but to a third party, named Mr Ronnie. The
latter person, in turn, leased the property to the government and received the rental.

[8.3] Tekwane North farm. This is an agricultural property which is said to be
generating rental income or to have that capability. The plaintiff accuses the
defendant of failing to disclose this property in her financial disclosure documents and
discovery affidavit.
[8.4] Erf 6[…] Drum Rock vacant stand. This piece of property is said to have been
sold by the plaintiff for around R550 000 in June 2006 . The defendant says that the
proceeds of sale for the property vanished without the plaintiff accounting to her
thereon. In other words, the plaintiff did not consult or inform her, she states.
[8.5] A two-bedroom apartment situated at Eugene Marais Street in Mbombela. The
flat is utilised as student accommodation deriving monthly rental. The plaintiff says
this money is used towards the minor child’s boarding school expenses. Evidently,
there is a dispute as to the quantum of the rental amount received on a monthly basis
for the property . The defendant also pays monthly levies due to the body corporate;
rates and taxes to the local authority, and a mortgage bond.
[9] Other assets of the joint estate include several motor vehicles. The defendant alleges
that some of the vehicles were either sold or disposed of in other manners by the plaintiff , or
they disappeared at his instance. This is disputed by the plaintiff. But, he admitted having
temporarily lent some of the vehicles to third parties , such as a BMW X6 used to secure a
loan to pay for basic living expenses. This was around 2017 when he had been excluded from
accessing income of the joint estate. He also utilised part of the loan towards mortgage bond
repayments for properties in the joint estate . According to the plaintiff it was the d efendant
who disposed of some of the vehicles.
[10] The defendant was a deputy minister in the national government. She appears to have
occupied other positions in government before. She, therefore, held interests in the Public

Office Bearers Pension Fund ( ‘POBPF’). The POBPF is administered by Alexander Forbes.
According to the defendant upon retirement by operation of age and not through personal
election, Alexandra Forbes transferred or converted her pension benefits into a life annuity.
She says that this process is mandatory and does not afford the retiring member a discretion
to elect a cash withdrawal or alternative transfer of the pension benefits . She rejects the
plaintiff’s criticism that she unilaterally withdrew or transferred her pension benefits after the
launch of this divorce action to place same out of his reach . The divorce was launched in
2019 and she only reached compulsory retirement age in early 2025 , she points out . The
plaintiff also complained about the non -disclosure of the amount or quantum for the pension
benefits. According to the defendant only 33% of her pension benefits of around R36 million
was cashed from the POBBF. She used the funds towards the mortgage bonds over the
immovable properties in the joint estate. The transfer or encashment of he r pension benefits
led the plaintiff to approach the urgent court in November 2025 to compel Alexander Forbes
to disclose the amount of the pension benefits. This was literally a few days before the trial.
Be that as it may it is the plaintiff’s case that the automatic transfer or conversion of the
pension interests into life annuity does not remove same from the parties’ community of
property.3 And that the 33% withdrawal and the timing thereof render the withdrawal a
dissipation of an asset of the joint estate by the defendant.
[11] Another aspect which gained prominence in the trial and closing argument is the
commission of adultery. In the pleadings, b oth parties accuse d each other of extramarital
affairs. But in the advancement of her case, particularly her forfeiture claim, the defendant
says that the plaintiff dissipated monies and other resources of the joint estate by financially

supporting his multitude of concubines during the course of the marriage. The plaintiff denies
the allegations and counters that it was the defendant who was involved in an extra -marital

3 Section 7(7) of the Divorce Act 70 of 1979. See M v M (022/2022) [2023] ZASCA 75 (26 May 2023)
[5], [26].

affair with some young man who was employed at their matrimonial home . More on this
below.
[12] As stated above, the plaintiff sought in the summons that the defendant be ordered to
pay maintenance for the minor child in addition to seeking the primary care and residence of
the child. He had since abandoned the latter part of the relief in favour of the defendant. The
defendant did include in her amended counterclaim an order for the plaintiff to contri bute
towards the maintenance of the minor children according to his means and the children’s
needs. But no evidence was led at the trial on this aspect. Counsel for the plaintiff submitted
that the issue of maintenance of the minor child be referred to the maintenance court for
adjudication. And, that such an order may only be crafted upon proper financial disclosure by
both parties and a layout of the child’s proven needs. I agree. I will deal with this further
towards the end.
Plaintiff’s case (summarised)
[13] The plaintiff caused summons to be issued against the defendant in November 2019.
From the relief originally sought in the particulars of claim the plaintiff now only seeks : (a)
decree of divorce; (b) division of the joint estate; (c) reasonable contact with the minor child,
and ( d) costs of suit . Regarding the division of the joint estate , t he plaintiff sought that a
liquidator or receiver be appointed - with specified powers and duties - for purposes of the
division.
[14] It is common cause between the parties that a decree of divorce should be granted by
the Court. The parties agree that the marriage between them has irretrievably broken down ,
but they differ considerably as to the reasons for the breakdown. According to the plaintiff:
(a) the parties have drifted apart ; (b) the y both had extramarital relationships during the
marriage, and (c) he was subjected to emotional, physical and financial abuse.

[15] The plaintiff , also, sought the equal division of the joint estate between the parties
pursuant to their marriage in community of property. I dealt with the major assets in the joint
estate above, including the plaintiff’s pension interests. The plaintiff seeks that the pension
funds holding the defendant’s interests endorse their records to reflect that he is entitled to
50% thereof. This, as stated above, was met with a forfeiture claim by the defendant, which is
vigourously disputed by the plaintiff.
Defendant’s case (summarised)
[16] The main feature of the defendant’s case is her forfeiture counterclaim. She admits
that her marriage to the plaintiff has irretrievably broken down. But, sh e denied the
allegations cited by the plaintiff as the cause of the breakdown, particularly that she had an
extramarital relationship during the marriage. It is the greater part of her case that the plaintiff
is the one who had numerous extramarital relationships and even cohabited with one of these
concubines for a lengthy period. In fact, he left the matrimonial home to go cohabit with the
latter concubine.
[17] Advancing her case against the equal division of the joint estate, the defendant denied
that the plaintiff is entitled to 50% of her pension interest s. This, she pleaded, would render
the plaintiff unjustly enriched . An order for his forfeiture of the patrimonial benefits of the
marriage should be made for the following reasons: (a) the defendant made a sizable
contribution towards the acquisition of most of the assets; (b) the plaintiff made a minimal
contribution towards the acquisition of the assets; (c) the breakdown of the marriage was due
to the plaintiff's substantial misconduct, particularly in the form of adultery ; (d) the plaintiff
committed an act amounting to financial misconduct in that, he: (i) took money from the joint
estate and used it in purchasing assets for the benefit of his concubines; (ii) took financial

loans which were utilised for the benefit of his concubines; (iii) alienated or pledged -

without the defendant's consent - motor vehicles and other assets of the joint estate , as
collateral security for fi nancial loans, for his own benefit; (iv) sold cows and motor vehicles
of the joint estate for own benefit; (v) used proceeds from the disposal of his interests in two
companies for his exclusive benefit; (vi) used exclusively for his own benefit pension money
from his resignation from government; (vii) used funds from the joint estate for a traditional
wedding of a woman in Pongola, notwithstanding that his marriage to the defendant still
subsists; (v iii) bought a BMW motor vehicle for a third party using funds from the joint
estate; (ix) cashed up an investment policy and used the proceeds for his own benefit, despite
the defendant being the one paying monthly premiums, and (x) left the responsibilities for the
maintenance, well-being and educational expenses of his own children and those of his elder
brothers to the defendant.
[18] The defendant’s case also includes that the plaintiff used the parties’ flat or apartment
in Nelspruit to provide accommodation for his girlfriend. This was done whilst the defendant
remained liable for payment of levies, and rates and taxes for the same property . His
extramarital relationships numbered at least 40 during the course of the marriage. He even
had a cellphone which he concealed from the defendant, which he used to communicate with
his girlfriends. The defendant, also, told the Court that the plaintiff confessed his infidelity to
her. In 2019, the plaintiff implored the defendant in terms of a letter he wrote to her that they
change their marriage to a polygamous one. He, also, concealed the number of children he
had fathered in other prior relationships or marriages. Overall, t he defendant says that
throughout their marriage the plaintiff abused her emotionally, psychologically and
financially.
[19] As already stated, the plaintiff conceded to the defendant regarding the minor child’s

[19] As already stated, the plaintiff conceded to the defendant regarding the minor child’s
primary caregiving with him to be allowed rights as to reasonable contact with the child.
And I have also stated that I share the plaintiff’s view that the issue of maintenance be

referred to the maintenance court for a proper financial enquiry as to the child’s proven needs
and the parties’ respective means to meet those needs.
Issues requiring determination
[20] From what appears above, it is clear that what essentially requires determination in
this matter is the following: (a) decree of divorce; (b) division of the joint estate; (c) forfeiture
of patrimonial benefits, and (d) cost of the action.
[21] Ancillary to the issue of forfeiture is the following: (i) duration of the marriage, (ii)
circumstances which gave rise to the break-down of the marriage; (iii) substantial misconduct
by either of the parties; (iv) whether the plaintiff in relation to the defendant would be unduly
benefited without an order for forfeiture, and (v) whether, if forfeiture is ordered, it should be
wholly or partially. These ancillary issues, actually, are the statutory prescripts arising from
the provisions of section 9(1) of the Divorce Act.
[22] And during the discussion of these identified issues, further issues may arise. Some of
the issues will be discussed together due to being interlinked. But, I first turn my attention to
the applicable legal principles.
Applicable legal principles
[23] The primary legal principles in this matter relate to the concept of forfeiture. It is trite
that in a marriage in community of property the assets and liabilities in the joint estate ought
to be divided equally between the spouses, unless an order in terms of section 9 of the
Divorce Act is granted by the court for forfeiture of the patrimonial benefits of such marriage.
[24] Section 9(1) of the Divorce Act, in terms of which the defendant in this matter claims
forfeiture, provides as follows:
When a d ecree of divorce is granted on the ground of the irretrievable break -down
of a marriage, including a Muslim marriage, the court may make an order that the

patrimonial benefits of the marriage be forfeited by one party in favour of the other,
either wholly or in part, if the court, having regard to the duration of the marriage,
the circumstances which gave rise to the break -down thereof and any substantial
misconduct on the part of either of the parties, is satisfied that, if the order for
forfeiture is not made, the one party will in relation to the other be unduly benefited.


[25] A court - seized with the determination of a forfeiture claim - ought to probe whether
absent a forfeiture order the one party would be unduly benefitted when consideration is
given to the factors mentioned in section 9(1). The material factors are: (a) duration of the
marriage; (b) any substantial misconduct on the part of any of the parties, and (c)
circumstances which caused the break-up of the marriage.4 It ought to be borne in mind that
this list is exhaustive.5 There is no other factor to be considered by the Court beyond those in
this provision.6
[26] The word ‘undue’ (in the phrase ‘unduly benefited’ in section 9(1)) was defined in KT
v MR 7 by Kollapen J ( before his elevation from this Division ) using a dictionary to mean
‘unwarranted or inappropriate because excessive or disproportionate’.8
[27] In Moodley v Moodley 9 the court relied on the durable explanation of the concept of
‘benefits’ given almost a century ago b y Schreiner J (as he then was) in Smith v Smith 10 as
follows:
It is of course clear that what the defendant forfeits is not his share of the common
property, but only the pecuniary benefit that he would otherwise have derived from
the marriage . . . [An] order for forfeiture … is really an order for division plus an
order that the defendant is not to share in any excess that the plaintiff may have
contributed over the contributions of the defendant.


4 Klerk v Klerk 1991 (1) SA 265 (W); Botha v Botha 2006 (4) SA 144 (SCA); [2006] 2 All SA 221 (SCA)
(9 March 2006) (‘Botha v Botha’)[8].

(9 March 2006) (‘Botha v Botha’)[8].
5 Botha v Botha [8], [17]; Moodley v Moodley [9]; M v M [27]-[28].
6 Jacqueline Heaton ‘Chapter 4 The Proprietary Consequences of Divorce’ in Jacqueline Heaton (ed) The
Law of Divorce and Dissolution of Life Partnerships in South Africa (Juta Cape Town 2014) at 92. See
also Botha v Botha [8], [17]; Moodley v Moodley [9].
7 KT v MR 2017 (1) SA 97 (GP).
8 KT v MR 2017 (1) SA 97 (GP) [20.17], utilising the South African Concise Oxford Dictionary (2005 ed).
9 Moodley v Moodley (7241/2002) [2008] ZAKZHC 48 (14 July 2008) [10].
10 Smith v Smith 1937 WLD 126 at 127-128.

[28] The court in Moodley went further to hold that:
A “benefit” as envisaged in section 9 of the Divorce Act can take various
forms, inter alia “contributions” made by one party towards the joint estate
during the existence of the marriage. The court considers the salaries earned
by the spouses, what they owned at the time of the marriage, what they
received as inheritances, legacies and donations, and so on.11

[29] It was also held in Moodley that it was of the utmost importance that the claimant, in
respect of a claim for forfeiture, establish some kind of contribution that exceeds the
contribution of the other party towards the joint estate.12
[30] The Appellate Division (the predecessor to the Supreme Court of Appeal) in Wijker v
Wijker13 has provided an aidful approach to the issue of forfeiture premised on section 9 as
follows:
It is obvious from the wording of the section that the first step is to determine
whether or not the party against whom the order is sought will in fact be benefited.
That will be purely a factual issue. Once that has been established the trial Court
must determine, having regard to the factors mentioned in the section, whether or
not that party will in relation to the other be unduly benefited if a forfeiture order is
not made. Although the second determination is a value judgment, it is made by the
trial Court after having considered the facts falling within the compass of the three
factors mentioned in the section.14


[31] Further in Wijker v Wijker the Appellate Division held:
The only remaining factor which persuaded the Court a quo to grant the forfeiture
order is that it was considered unfair that the appellant should share in the company
and its assets while he had made hardly any contribution towards its management,
administration and profit -making. The finding that the appellant would be unduly
benefited if a forfeiture order was not made, was therefore based on a principle of

benefited if a forfeiture order was not made, was therefore based on a principle of
fairness. It seems to me that the learned trial Judge, in adopting this approach, lost
sight of what a marriage in community of property really entails…
The fact that the appellant is entitled to share in the successful business established
by the respondent is a consequence of their marriage in community of property. In
making a value judgment this equitable principle applied by the Court a quo is not
justified. Not only is it contrary to the basic concept of community of property, but
there is no provision in the section for the application of such a principle.15


11 Moodley v Moodley [10].
12 Moodley v Moodley [11].
13 Wijker v Wijker 1993 (4) SA 720 (A).
14 Wijker v Wijker at 727D-F; M v M [28], [33]-[34].
15 Wijker v Wijker at 731C-G; Botha v Botha [7]-[8]; M v M [28].

[32] In Botha v Botha the Supreme Court of Appeal (‘the SCA’) dealt with appeal
concerning whether the trial court correct ly ordered partial forfeiture order against the
appellant who had been married to the respondent for ten years. The partial forfeiture was
ordered in respect of the proceeds of insurance policies. The SCA found that the trial judge
did not correctly apply the approach laid down in Wijker case and had misdirected himself by
exercising his value judgment beyond the confines of the triad of factors set out in section
9(1).16
[33] In another decision of the SCA in M v M 17 the court dealt with an appeal against the
dismissal of one party’s counterclaim for a partial forfeiture relating to the other party’s
pension benefits and ordered equal division of the joint estate. The appellant had failed before
the trial court and full court of the Limpopo Division, Polokwane. The SCA reversed the
outcome and ordered partial forfeiture as it found that the app ellant had satisfied the
requirements of section 9(1) in respect of the applicant’s pension interests. It also found that
whilst the appellant made a direct financial contribut ion to the joint estate the respondent
deployed almost all of his financial resources towards benefitting his concubine with whom
he was in long-existing relationship conducted in ‘a brazen and humiliating fashion ’ to the
appellant.18
[34] The above are the applicable legal principles and authorities highlighted for purposes
of the discussion of the issues requiring determination by the Court . I turn to the latter issues
in a moment . But the se principles are definitely not the only principles and authorities as
would become clear in the discussion below.
Decree of divorce and division of the joint estate

16 Botha v Botha [17].
17 M v M (022/2022) [2023] ZASCA 75 (26 May 2023).
18 M v M [40].

[35] It is common cause, as already stated, that a decree of divorce should be granted as
the marriage relationship between the parties has disintegrated with no reasonable prospect of
restoration of a normal marriage relationship. I am satisfied that the evidence before the
Court confirms this common understanding of the parties. Consequently, I will grant a decree
of divorce to dissolve the marriage between the parties.
[36] The central point of contention between the parties is the division of the joint estate.
The plaintiff seeks equal division whilst the defendant seeks forfeiture of patrimonial benefits
by the plaintiff . I commence the discussion with the latter issue , as its disposal may be
dispositive of the former.
Forfeiture of the benefits and division of the joint estate
General
[37] The defendant’s counterclaim is that the plaintiff wholly forfeits the patrimonial
benefits of a marriage in community of property, as envisaged by section 9 (1).19 The
forfeiture claim is disputed by the plaintiff.
[38] To order forfeiture of patrimonial benefits by a party, the Court ought to be satisfied
that the absence of such an order would render the plaintiff to be unduly benefitted in relation
to the defendant. 20 The determination is guided by three factors set out under section 9 as
follows: (a) the duration of the marriage; (b) the circumstances which gave rise to its
breakdown, and (c) substantial misconduct on the part of either of the parties , if any.21 It is
common cause that the defendant bears the onus of establishing these factors or the forfeiture
claim, itself, as part of her counterclaim.
The plaintiff being unduly benefited in relation to the defendant: a prologue

19 Par [24] above, for a reading of s 9(1) of the Divorce Act.
20 Wijker v Wijker at 727D-F; M v M [28], [33]-[34].
21 Ibid.

[39] The determination in this regard is binary or two-legged. In the first part, it involves
whether a party against whom a forfeiture order is sought will indeed be benefited. This part
of the determination is purely factual .22 Once it is established that the one party would be
benefitted, the Court ought to determine whether such party w ould be unduly benefited in
relation to the other party without the granting of a forfeiture order. 23 This is the second part
of the determination. It takes the form of a value judgment by the Court.
[40] Both the factual enquiry and value judgment are pegged upon the three statutory
factors mentioned above (i.e. duration of the marriage; circumstances which led to the
breakdown of the marriage, and substantial misconduct by either of the parties ). I deem it
necessary to discuss the evidence in this matter constituting the aforesaid triad of factors,
before answering the question whether or not the plaintiff would be unduly benefitted without
an order of forfeiture.
Duration of the marriage
[41] The first factor to consid er is the duration of the marriag e. As with the other factors,
there is no statutory guidance as to the relevant considerations for this factor. This means that
there is no statutory prescription of what constitutes a short or a long marriage when
considering whether to grant or refuse a forfeiture claim.
[42] But the d uration of a marriage remains a factor that ought to be evaluated - on the
facts of a matter - in the determination of whether a forfeiture claim or order would be just. It
is common cause that the parties in this matter have been married for over twenty-seven years
since 1998. The parties have lived apart since May 2019, when the plaintiff left the marital
home.

22 Wijker v Wijker at 727D-F. Moodley v Moodley [8].
23 Ibid.

[43] It is also common cause that the marriage between the parties was of a long duration.
The parties, though, differ on the significance of this factor for purposes of forfeiture.
[44] According to the defendant the duration factor should not be mechanically construed.
For, whilst the marriage between the parties may have spanned more than twenty-seven years
this was not accompanied by intertwined financial partnership, as borne by the evidence, but
by the defendant being overwhelmingly the sole contributor to the accumulation,
maintenance and preservation of the joint estate between the parties. On the other hand, the
plaintiff, according to the defendant, conducted himself in ways severely diminish ing of the
value of the joint estate. Therefore, in the defendant’s view, the long duration of the marriage
strongly supports the defendant’s claim for forfeiture by the plaintiff on the basis of his
prolonged misconduct and the defendant’s sustained contribution. And the long duration in
this matter does not serve to dilute forfeiture or immunise sustained miscondu ct, but
magnifies the inequity of equal division favourable to the plaintiff as th e offending dissipator
of estate assets and a disproportionate contributor over an extended period of time . The
prominent issue cited by the defendant is the plaintiff’s extramarital relationships including a
long-term one which commenced as far back as 2010.
[45] According to the plaintiff, the long duration of the marriage is a material and weighty
consideration against the defendant’s forfeiture claim. For, over the course of th eir long
marriage, the parties have acquired and developed several immovable properties and other
form of income-generating assets. The assets, even on the defendant’s version , were
accumulated progressively over the years. Therefore, the duration of the marriage constitutes
confirmation that the joint estate came about from shared domestic and economic life on the

confirmation that the joint estate came about from shared domestic and economic life on the
part of both parties, it is argued for the plaintiff. Also, that although the parties have separated

since 2019 , this is irrelevant for purposes of forfeiture as the marriage between them still
subsists.
[46] But whether considered from 1998 to date or from 1998 to 2019 (being the year of
separation, which consideration would not comport with prevailing authorities), the marriage
between the parties is of a long duration. I agree, though, with the view that duration of a
marriage should not be construed on the basis of a mechanical or quantitative consideration
alone, but also from a qualitative point of view . For, the parties may have been married for
what - in calendar years - may be a long duration , but a consideration of the experiences of
the parties, the strength of their relationship and the love and affection (or absence thereof)
towards each other over the duration of the marriage may point to a marriage whose
durability is hollowed by misconduct or circumstances inimical to the institution of marriage .
In other words, it is not the years in marriage that count, but the quality of the marriage in the
years.24
[47] What is stated in th e preceding paragraph clearly confirms that the duration of the
marriage cannot be considered alone and separately from the other two factors in the triad
(i.e. circumstances which led to the breakdown of the marriage and any substantial
misconduct by a party). It is not dispositive of the forfeiture issue or determination.25 I turn,
next, to the second factor in the triad.
Circumstances which led to the break-down of the marriage
[48] The second (of the three) factor (after the duration of the marriage) stipulated in
section 9(1) in the determination of forfeiture is the consideration of the circumstances which
led to the breakdown of the marriage between the parties . As stated above, the parties agree

24 An adaptation of the saying ‘it's not the years in your life that count [but] the life in your years’,
attributed to Abraham Lincoln the 16th president of the United States of America.

attributed to Abraham Lincoln the 16th president of the United States of America.
25 B.R.B.M v R.K.B.M [2023] ZAGPPHC 1491; 19279/2019 (5 June 2023) [97].

that their marriage has crumbled and that divorce is inevitable, but disagree on the cause(s) of
or circumstances which led to the breakdown.
[49] It is submitted o n behalf of the defendant (as part of her counterclaim for forfeiture)
that the evidence overwhelmingly establishes that the plaintiff is responsible for the collapse
of the marriage . Amongst the reasons given for the contention are the following: (a)
plaintiff’s numerous extramarital affairs ; (b) his emotional and psychological abuse of the
defendant; (c) his concealment of the children he fathered and his financial obligations
related thereto , and (d) his abandonment of the marital home . Other reasons given by the
defendant appear above. It is the defendant’s case that each of these reasons or circumstances
contributed materially to the erosion of trust, companionship, and emotional stability within
the marriage relationship with the plaintiff. The circumstances did not only arise towards the
end of the marriage , but spanned more than a decade, it is further submitted , plaguing the
relationship with emotional harm and deception. The plaintiff’s long-term extra -marital
relationship commenced years before the plaintiff disclosed his polygamous ambitions in his
2019 letter to the defendant . The defendant even had to secure protection orders and lodge
criminal complaints against the plaintiff to ensure her personal safety. Her attempts to salvage
the marriage included securing guidance from pastor(s); seeking intervention by family
members; and marital counselling. Evidently, they were all to no avail. She even tolerated the
repeated misconduct of the p laintiff’s multitude of extramarital relationships hoping for the
preservation of a stable marriage relationship for the sake of the children. Save for the minor
child, TND, all these children are the plaintiff’s. She considers the plaintiff to have
reciprocated by way of hostility, betrayal and deceit towards her . But, the 2019 letter

reciprocated by way of hostility, betrayal and deceit towards her . But, the 2019 letter
signalled the proverbial final straw that broke the camel’s back , it is submitted . This,
according to the defendant, made her realise that the plaintiff had already exited the ir
marriage from a physical and psychological points of view . He left the matrimonial home

shortly after the 2019 letter. All these, it is submitted on behalf of the defendant, confirm that
the breakdown was precipitated by sustained infidelity on the part of the plaintiff which
culminated in the abandonment of the parties’ common household.
[50] It is material to point out that the evidence establishes that the plaintiff’s long-term
extra-marital relationship began in 2010 . The plaintiff tried during his testimony to put the
commencement date of the relationship to be in 2019, but conceded under cross-examination
that the date was much earlier in 2014. Documentary evidence confirms that it commenced in
2010.
[51] The plaintiff, on the other hand, cite the circumstances that gave rise to the breakdown
of his marriage to the defendant as follows. F rom around 2017, the defendant progressively
excluded him from the financial affairs of the joint estate . The exclusion extended to rental
income from their multiple properties. He considers this part of his evidence not to have been
meaningfully refuted by t he defendant. In fact, according to him, the defendant ’s own
testimony confirms that she exercised control over the administration of the joint estate
properties during this period , including over rental income. Regarding the protection orders
and criminal complaints against the plaintiff, it is submitted that the evidence do not establish
that the processes resulted in the plaintiff being found guilty of any crime. Also, that such
complaints or events did not have any patrimonial bearing on the joint estate. They also do
not - without more - establish financial misconduct or undue benefit as required by section
9(1). I discuss the factor of serious misconduct under the next rubric.
[52] Further, on the issue of adultery or extramarital relationship, counsel for the plaintiff
submits that whether the extramarital relationship started in 2010 and overlapped with many
years of the marriage , is of no consequence as the parties nevertheless continued their

years of the marriage , is of no consequence as the parties nevertheless continued their
marriage relationship to date . This constitutes a historical misconduct which the defendant

may have tolerated and cannot now be invoked to support her claim for forfeiture without
proof of financial prejudice caused by same. It is also the plaintiff’s case that the alleged
relationships did not deplete the assets of the joint estate , through for example , funds of the
joint estate being deployed towards the maintenance of a parallel household or an extreme
systematic diversion of assets . The same applies to the 2019 letter proposing a polygamous
marriage authored by the d efendant. The 2019 letter only serve s to demonstrate that the
plaintiff was not secret ive, but frank about his marriage intentions. Also, the p laintiff’s
departure from the matrimonial home, did not lead to financial dissipation or undue benefit.
Overall, it is the p laintiff’s case that no facts or evidence have/has been placed before the
Court by the defendant to demonstrate that the circumstances of the breakdown of the
marriage with the plaintiff render equal division repugnant to justice.
[53] It ought to be mentioned that the defendant considers these contentions by the
plaintiff and submissions on his behalf to be an attempt at retrospective minimisation of the
effect of the duration of the extramarital relationship.
[54] Bearing in mind what is stated above and the evidence in this matter , I consider the
following to be the circumstances which led to the breakdown of the marriage between the
parties: (a) the plaintiff’s numerous extramarital affairs , which included a long-term
relationship which commenced in the early years of the marriage, and (b) the plaintiff’s
concealment of the total number of children he fathered. These are not the only circumstances
or material events towards the breakdown of the marriage between the parties, but I consider
them to have been the direct causes of the breakdown. The defendant says these conditions
eroded her trust and caused her emotional harm, especially given the fact that the events or

eroded her trust and caused her emotional harm, especially given the fact that the events or
conditions were not one-off event but endured for a substantial part of the marriage. I agree. I
reject any connotation that there is anything commendable with the plaintiff’s ill -fated

attempt to formalise his infidelity into polygamous marriage in terms of the 2019 letter. I,
also, do not accept that these relationships had no financial bearing on the joint estate.
Available evidence does not support the plaintiff’s claim that he was perhaps frugal in
maintaining these relationships. The defendant testified that he allowed a girlfriend to occupy
a flat or apartment in Nelspruit whilst the defendant remained liable for payment of levies,
and rates and taxes for the same property. The property was meant to generate rental income.
Besides, these relationships were covert and in a multitude. I t would be unreasonable to
expect that the defendant would have kept a logbook (of sorts) to record the costs of the
plaintiff’s extramarital relationships to the joint estate. It is for substantially similar reasons
that I do not accept that the defendant’s control over the administration of joint estate , its
properties and other financial aspects of the joint estate, led to the breakdown. The defendant
appears to have been motivated by a quest to preserve the assets than their dissipation. And,
she may have been more allowing in the past or gave the plaintiff the benefit of doubt prior to
2019 regarding his management of (or lack thereof) or unrestrained access to the resources of
the estate, especially those he had exclusive control of or unrestrained access to, but this does
not mean that he was excluded the moment the defendant regained control of management
thereof. The latter may have led the plaintiff to realise that things have changed and that the
good old days were a thing of the past. The launch of th is divorce action may have been part
of this realisation.
Substantial misconduct by either of the parties
[55] The third and last factor in the determination of forfeiture involves the consideration
of any substantial misconduct on the part of either of the parties.
[56] The phrase ‘ substantial misconduct ’ in s ection 9(1) suggests that not every

[56] The phrase ‘ substantial misconduct ’ in s ection 9(1) suggests that not every
misconduct would constitute a relevant factor for the determination. Only misconduct of a

‘substantial’ nature would suffice. The dictionary synonyms of the word ‘substantial’ include
‘considerable’, ‘enormous’ and ‘extensive’. 26 The antonyms of the word are ‘small’, ‘tiny’
and ‘little’.27 In my view, misconduct of a non -substantial nature may still be relevant to the
determination of a forfeiture claim as a circumstance which may have caused the breakdown
of the marriage. Of course a serious misconduct is, naturally, such a circumstance . These
confirm the three factors in section 9(1) are interlinked.
[57] It is part of the defendant’s case that the plaintiff committed misconduct at the
substantial threshold. Prominent, amongst the misconduct the defendant accuses the plaintiff
of having committed, is that of adultery. This has also featured prominently in the discussion
of the circumstances which led to the marriage breakdown, discussed in the preceding
subheading. The evidence establishes that the plaintiff has sustained extramarital affairs at
least since 2010. The defendant testified that the plaintiff started cheating on her even earlier,
in 2007. The affairs continued uninterruptedly throughout the marriage until the separation of
the parties in 2019. But even then they did not stop. It is submitted on behalf of the defendant
that the affairs were in complete disregard for the dignity, emotional wellbeing and marital
rights of the defendant.
[58] The defendant’s testimony involved other extramarital affairs which counsel for the
defendant tabulated as the first to fourth affairs as follows . The first affair came to light in
2007. It involved a married woman also known to the defendant. It was so serious that the
woman’s husband formal ly complained to the plaintiff in writing and demanded
compensation from the plaintiff for the humiliation to his family. The second affair also
involved a married woman from the defendant’s political and professional circle. The woman
was a colleague or associate known to the defendant and formed part of the defendant’s

was a colleague or associate known to the defendant and formed part of the defendant’s

26 Cambridge Dictionary <https://dictionary.cambridge.org/thesaurus/substantial>, accessed 14 August
2026.
27 Ibid.

political organisation. Th is affair and location of its pursuit (i.e. within the defendant’s
workspace) made it an egregious form of humiliation . The embarrassment, being of public
and professional form, was continuous as the defendant had to continue working in the same
environment or organisation. This affair went beyond infidelity and tarnished the defendant’s
dignity and public standing. The third affair is considered by the defendant to, perhaps, be the
most devastating of the plaintiff’s marital affairs. The plaintiff pursued a sexual relationship
with the aunt of one of his children. A child was born from this relationship, although this
was concealed from the defendant for some time . The defendant came to know of the
existence of th e child when the mother contacted the defendant’s stepdaughter (i.e. the
plaintiff’s own daughter) seeking money after the plaintiff had abandoned her . This affair
confirms the plaintiff’s complete disregard for both women and children , it is also argued .
For the defendant it constitutes both emotional betrayal and financial misrepresentation
perpetrated within the marriage. The fourth affair or extra-marital relationship cited by the
defendant is of very long duration. It began in 2010 and endured for more than a decade. The
plaintiff used assets belonging to the joint estate, including money, to support the lifestyle of
the woman in this long-term relationship. The plaintiff accommodated the woman in
apartment belonging to the joint estate which was supposed to be rented out. This robbed the
estate of rent al income from paying tenants for several years. The defendant made the
discovery of all these after the plaintiff left the matrimonial home to co-habit with the
woman.
[59] The plaintiff is also accused of concealing the number of children he had fathered.
This appears to be a reference to the children from other relationships or marriages prior to

This appears to be a reference to the children from other relationships or marriages prior to
the marriage to the defendant. According to the defendant the plaintiff has concealed or failed
to disclose seven or eight children in addition to those already disclosed. It was only later
during the marriage that the p laintiff disclosed that he is a father of eleven children and not

just three children. The initial non-disclosure is baffling since the majority of these children
were born prior to the conclusion of the marriage with the defendant . The defendant
considers the concealment to be a material misrepresentation with financial consequences. It
led to a reduction of available resources of the joint estate. Also, the defendant couldn’t plan
the financial future of the household, as there was always going to be unexpected and
unexplained financial shortfalls emanating from the defendant’s obligations towards the
additional children. She was forced to bear the financial burden of raising several of the
plaintiff’s children without knowing the full nature and extent of the material obligations. The
non-disclosure had remained intact, despite the defendant resid ing with some of the
plaintiff’s children and continu ously supporting and caring for them over the years , single-
handedly. All these have a bearing on the value judgment of whether the plaintiff would be
unduly benefited, it is submitted.
[60] The plaintiff dismisses the d efendant’s laments regarding the undisclosed additional
children. It is submitted on his behalf that her testimony confirms that she knew of the
alleged extramarital children and accepted them. She testified that she maintained a fruitful
relationship with these children and even financially supported them for their needs over a
prolonged period. I think there may be a confusion in this regard between the children which
the plaintiff disclosed to the de fendant and the undisclosed ones. The defendant complains
about concealment of the latter from h er. Overall, it is submitted on behalf of the plaintiff ,
that the non -disclosure of the children should not be characterised as substantial misconduct
for purposes of forfeiture. The defendant does not say that all these led to the dissipation of
assets of the joint estate or financial prejudice to her. After all, the defendant voluntarily

assumed financial responsibility towards these children. Therefore, the issue is a serious
matter only at the personal level devoid of any impact on the forfeiture of benefits.

[61] Another aspect c ited by the defendant is the disparity of the plaintiff’s c ontribution
towards accumulation of the assets in the joint estate when compared to hers. She mentioned
that the plaintiff has made no meaningful contribution toward the maintenance and upkeep of
the joint estate since he departed from the matrimonial home in 2019. She, further, states that
the White River property , valued at around R2 , 99 million, was financed exclusively by her.
The p laintiff, i n turn, asserts that h is contribution to the joint estate was substantial. The
contribution did not reduce since he departed from the matrimonial home in 2019, as he had
remained economically active. I hasten to point out that this is contradictory to the plaintiff’s
case of financial exclusion, which brought him financial misery, and of lately being a pauper,
surviving on handouts. But the defendant considers the issue an irrelevant consideration for a
marriage in community of property. Community of property represents a universal economic
partnership of the spouses of which they are equal shareholders, regardless of their individual
contribution. For, contribution disparity does not transform equal division into undue benefit.
Regarding the alleged use of an apartment to house his concubine, he argues that there is no
proof of lost rental income solely attributable to him. Besides, the immovable properties,
business interests and other assets accumulated over decades still form part of the joint estate.
There is n o proven systematic stripping of estate assets similar to that in M v M , referred to
above.
[62] The defendant also cites an incident which occurred during the parties’ attempt to
narrow issues in the divorce dispute through mediation. This was directed by the Court.
During a sitting of the mediation, attended by the parties and their legal teams, the plaintiff is
said to have been aggressive and even threatened the defendant with a chair he attempted to

said to have been aggressive and even threatened the defendant with a chair he attempted to
throw at her or to intimidate her thereby. This aggressive or violent conduct by the plaintiff
endured despite intervention by his legal team. The ‘chair incident’, it is submitted, was not
just an isolated behavioural anomaly on the part of the plaintiff, but a feature of his consistent

long-term psychological aggression. But the plaintiff is dismissive of the ‘chair incident’. It is
submitted on his behalf that the determination of existence of substantial misconduct on the
part of a party in a marriage for purposes of statutory forfeiture envisaged in s ection 9(1),
does not incorporate courtroom behaviour or mediation breakdown. The plaintiff accuses the
defendant of conflating moral wrongdoing and substantial misconduct.
[63] Another misconduct cited by the plaintiff involves the N[...] D[...] Family Trust (‘the
Trust’). The plaintiff testified that he was the sole trustee of the Trust and, thus, controlled the
Trust. At some stage the Trust had around R6 million in its bank account. The plaintiff says
the money was proceeds of disposal of his investment in a mining and other forms of
companies. He admitted using part of the Trust funds (transferred in tranches of around R1
million and R3 million from the bank account) to purchase immovable property known as
Stone Age Guesthouse and the house next to it . But the defendant disputes this on the basis
that there is no documentary proof . According to her i t is apparent that the funds were
deployed towards the plaintiff’s personal indulgences and to sustain his extramarital affairs.
Even the immovable property acquired was meant to create the plaintiff’s exclusive
patrimonial control , it is submitted for the defendant . Th erefore, this constitutes reckless
dissipation and a substantial misconduct for purposes of section 9(1) of the Divorce Act. This
is denied by the plaintiff, particularly on the basis that the defendant failed to place before the
Court the Trust constitutive documents and proof that the withdrawals by the plaintiff were
unauthorised. Besides, the impugned funds constituted trust property not forming part of the
joint estate of the parties. And, there is no proof the funds were misappropriated by the
plaintiff to qualify as a substantial misconduct which arises only if there is erosion of the

plaintiff to qualify as a substantial misconduct which arises only if there is erosion of the
patrimony in the joint estate, the argument concludes.

[64] Other issues raised by the defendant to support her case that the plaintiff committed
substantial misconduct include what appears next. The plaintiff secretly took out in 2000 a
policy with Sanlam. He maintained it for nearly two decades and even increased the monthly
premium from R250 to R6 000 over the years , but did so covertly. He managed to do all
these, despite the d efendant unwittingly paying the premiums until she became aware of the
debit order going off her personal bank account. Sanlam confirmed that the policy was taken
out and maintained without her consent. The plaintiff, ultimately, cashed out the policy and
used the proceeds for his personal ends. The def endant says she still has no idea of the value
of the policy, as the plaintiff has kept this a secret . According to the defendant the policy
itself signifies financial manipulation for personal enrichment by the plaintiff. The
deployment of the money received from cashing -up the policy for personal objectives
constitutes dissipation of a joint asset and, thus, misconduct disqualifying the plaintiff from
an equal share of the assets accumulated by the defendant. The defendant, further, states that
the plaintiff is guilty of misconduct in respect of the following: (a) proceeds of R500 000
from a business transaction and property sale; (b) dissipation of around 22 motor vehicles; (c)
disposal of 120 head of cattle (of which the plaintiff only admitted eight); (d) removal of the
defendant as a signatory or access -holder on the ABSA account , which the plaintiff claims
was a personal account and not a joint one, and with the misused by the plaintiff . The
plaintiff denies the veracity of these issues and argue that there is no proof by way of
accounting or documentary records.
[65] It is my view that, the plaintiff committed the following substantial misconduct: (a) by
being a perpetrator of a series of extramarital affairs, and (b) concealment of some of his

being a perpetrator of a series of extramarital affairs, and (b) concealment of some of his
children with financial implications for the joint estate.

[66] Adultery or an extramarital affair by its very nature is a substantial misconduct,
especially one committed over a protracted period of time .28 From a view internal to the
marriage it seriously hurts and betrays the victim -spouse. It, also, weakens the bonds of
marriage and the relationship between the spouses. F rom the outside , it cheapens the
marriage and attracts disrespect for the spouses. In this matter, the plaintiff appears to have
been very committed and loyal to his adulterous life. More so than in 2019, being around 21
years of marriage to the defendant, he still couldn’t let go of his hurtful ways . He,
unsuccessfully, tried to recruit the defendant to join him as a willing participant in his multi-
partner life through his 2019 letter, suggesting they adopt a polygamous marriage. This was
not in any way meant to serve the interests of the defendant , but his selfish interests. From
one or more of his extramarital relationships he even fathered a child with a relative. There
was no place out of bounds for him. He pursued sexual relationships with a married woman
in 2007 whose husband even demanded compensation for the humiliation to his family. He
also egregiously humiliated the defendant through the extension of his extramarital conquests
to another married woman closely connected to the defendant’s political organisation and
professional circle. I accept the defendant’s argument that these relationships, particularly the
long term one, were maintained with the resources from the joint estate . The defendant
remains the steadfast contributor of these. All these show that the plaintiff was never really
committed to the defendant. In my view, these constitute ‘substantial misconduct’, envisaged
in section 9(1).
[67] Equally, I find the fact that the plaintiff concealed some of the children he had
fathered to constitute a substantial misconduct. The defendant testified that she has no

fathered to constitute a substantial misconduct. The defendant testified that she has no
biological children of her own. She, jointly , with the plaintiff adopted the minor child, TND.
But she had already accepted as her own the plaintiff’s children, at least those revealed to her.

28 M.J.L v L.O.L (22341/19; A288/2023) [2025] ZAGPPHC 331 (27 March 2025) per Kooverjie J at [41].

The acceptance wasn’t just an informal declaration but she embraced the children as hers and
contributed resources, including financial ones, towards their upbringing. This, she did even
as the tally of the children increased and even when she was separated from their father: the
plaintiff. Therefore, the fact that the plaintiff kept secret from the defendant other children, is
not only seriously hurtful, but constitutes betrayal and a material misrepresentation with
financial consequences. The cost of bringing up these other children is a liability borne by the
joint estate. It served as a reduction of available resources of the joint estate. I do not accept
the plaintiff’s testimony that the non-disclosure of the children should not be characterised as
substantial misconduct for purposes of forfeiture. It is. The defendant may have not been able
to quantify the amount of financial harm all these caused or how assets of the joint estate may
have been dissipated, but there is clearly financial prejudice to her. I did not understand the
case of the plaintiff to be that he did not maintain his children or that he did so from some
funds he had access to which were ring-fenced from the joint estate.
[68] The issue of the disparity of the plaintiff’s and defendant’s contributions forms part of
the value judgment under section 9(1) whether the defendant will or will not be unduly
benefitted by the absence of a forfeiture order. I do not agree with the plaintiff’s view or
submission o n his behalf that disparity of c ontributions is an irrelevant consideration in a
marriage in community of property.29 The disparity may be the result of other issues such as a
party’s secret life which brings about secret obligations with financial consequences. But for
the purposes of this matter, I do not consider it to constitute a substantial misconduct.
Perhaps, something or circumstance which may have consciously or unconsciously led to the

Perhaps, something or circumstance which may have consciously or unconsciously led to the
breakdown of the marriage between the parties. But it remains relevant to the ultimate
determination: forfeiture.

29 Wijker v Wijker at 731C-G; Botha v Botha 2006 (4) SA 144 (SCA) [7].

[69] The evidence before me is unclear as to the affairs of the Trust. It appears both parties
were trustees, although the plaintiff testified that he was the sole trustee. Nothing turns on
this. Available evidence confirms that the plaintiff controlled the Trust to the exclusion of the
defendant. He had access to the R6 million in the Trust’s bank account. He says he used part
of it to acquire immovable propert ies, although this is disputed by t he defendant. I do not
have enough to consider this a substantial misconduct. It may well be misconduct which
contributed to the breakdown of the marriage between the parties, but it is not necessary to
rule on this. The same applies to other forms of misconduct the plaintiff may have
committed, such as the maintenance and encashment of the Sanlam policy; dissipation of
motor vehicles; disposal of cattle and the termination of the defendant’s access to the ABSA
account and subsequent misuse of the funds therein.
[70] This concludes the individual discussion of the triad of factors set out in section 9(1).
I will summarise the conclusions reached on each of them as part of the conclusion, which is
the next subheading for the discussion.
Conclusion (on whether the plaintiff would be unduly benefited without forfeiture)
General
[71] Considering what appears under the trip le factors appearing above, the question to be
answered is whether the plaintiff will be unduly benefited in relation to the defendant if the
order for forfeiture is not made against him.
[72] To recap, my conclusions on the triad of factors are substantially as follows: (a) the
marriage between the parties, subject to what is stated next in (b), is of a long duration; (b)
the marriage between the parties broke down after being - for the most part - plagued by
conduct and circumstances inimical to the institution of marriage, attributable to the plaintiff
(including his numerous extramarital affairs ), and (c) substantial misconduct committed by

the plaintiff by way of his perpetration of a series of extramarital affairs and concealment of
some of his children from the plaintiff.
[73] These conclusions will – no doubt – aid the purely factual determination of whether
the plaintiff will be benefitted if forfeiture is not ordered, and, if so , the value judgment
whether the plaintiff would be unduly benefited in relation to the defendant without an order
for forfeiture. The approach by the Court under section 9(1) ought to be holistic and th e
enquiry is not mechanical, but structured and confined.30 And, at the outset, it is important to
bear in mind that the word ‘undue’ in the phrase ‘ unduly benefited’ is explained in the
dictionary as meaning ‘unwarranted’ or ‘inappropriate’ due to being excessive
or disproportionate.31
Will the plaintiff be benefited?
[74] The first step, in terms of the durable approach to the issue of forfeiture premised on
section 9 in Wijker, is in the form of pure factual enquiry whether or not the p laintiff will in
fact be benefited. It ought to be borne in mind that the plaintiff before the forfeiture claim is
determined entitled to half (or 50%) share of the joint estate by virtue of the law governing
his marriage to the defendant in community of property. Therefore, f orfeiture represent s a
statutorily derived exception to the aforesaid legal dispensation.
[75] From the facts or evidence before the Court in this matter, there is no doubt that the
plaintiff will be benefited. The assets in the joint estate comprising the immovable properties
and the defendant’s pension interests a ppear to be of considerably high value. There is a
number of immovable properties which appear to be worth millions, referred to above. Some
of them, such as the one in which the plaintiff housed his concubine, appear to have been
paid off. The defendant only mentioned paying rates and taxes for the latter property.

30 B.R.B.M v R.K.B.M [97].

30 B.R.B.M v R.K.B.M [97].
31 KT v MR 2017 (1) SA 97 (GP) [20.17], utilising the South African Concise Oxford Dictionary (2005 ed).

Although, the liabilities (whose quantum is unknown) in the joint estate are to be first met
before the proceeds could be divided between the parties, the financial position or net value
of the estate appears positive. For illustrative purposes , it is also material to point out that a
substantial portion of the assets in the estate were yielded by the efforts of and contribution
by the defendant. Therefore, there is no doubt that equal division of the value or proceeds of
the assets of the joint estate would benefit the plaintiff. To complete the determination, I turn
next to the value judgment part thereof: whether the plaintiff would be unduly benefited by
equal division of the joint estate in the absence of a forfeiture order.
Will the plaintiff be unduly benefited?
[76] I have found above that the plaintiff will indeed be benefitted by the equal division of
the joint estate. This , I emphasise, is a natural consequence of the law governing a marriage
in community of property.32
[77] The determination then proceeds to the value judgment of whether the plaintiff will be
unduly benefitted in relation to the defendant should forfeiture of patrimonial benefits not be
ordered.
[78] It is submitted on behalf of the defendant that the plaintiff will be highly undu ly
benefited by sharing equally in the joint estate considering, among others, that: (a) he made
no meaningful contribution to the estate from a financial or non -financial point of view ; (b)
he financially drained the estate through his reckless dissipation; (c) he destroyed the marital
relationship through repeated adultery, deceit, and emotional abuse of the defendant ; (d) he
purposely concealed some of his external children and the expenditure related thereto, and (e)
he obstructed mediation, frustrated the processes of the Court, and resolution of the marital
dispute. It is further submitted that e ach of these factors is independently serious and that

32 Wijker v Wijker at 731C-G.

collectively they rule out the plaintiff’s equitable participation in the benefits of a marriage in
community of property, lest his enrichment is judicially sanctioned. The cumulative effect of
the plaintiff’s conduct should be considered in this regard . For, a spouse who actively
removes or diminishes the assts of the estate should be visited upon with forfeiture in order to
prevent unjust enrichment.
[79] The plaintiff seeks an order dismissing the defendant’s claim for forfeiture, whether
partial or total. It is submitted , among others, that any benefit to the plaintiff will not be
undue, given the circumstances of this matter. And partial forfeiture should feature only in
the event that th e Court finds forfeiture competent. An order made in the latter respect, it is
submitted, should be strictly limited, proportionate and confined to clearly proven
patrimonial benefit. It should not amount to a punitive redistribution of the joint estate , the
submission concludes.
[80] Considering what is stated above, I am convinced that to a greater extent the benefit to
be derived by the plaintiff can be described as ‘unwarranted or inappropriate ’ and, thus,
undue. The plaintiff’s conduct, including the substantial misconduct, described above ,
renders him a spouse not worthy of the full patrimonial benefits of the marriage between the
parties. But there is a challenge in this regard from a quantification point of view. It is true
that when dealing with issues relating to assets or patrimony the financial values thereof are
immensely useful. But , the absence of such values shouldn’t serve as an impediment for the
determination. In some instances the values may not just be absent, but impossible to
determine or capable of determination only through a resource -intensive exercise, such as
forensic accounting or investigation. F or example , substantial misconduct such as adultery
similar to that perpetrated by the plaintiff, does not suggest the absence of a negative impact

on patrimony, but proving such impact may be unreasonably intensive . And may require co-

operation between the spouses and full disclosure of their past activities . Th is, no doubt,
would be impossible and may require intervention by the Court. But, co-operation that is
continuously enforced or ‘policed’ by the Court - through orders - may deplete the very same
resources to be divided. This may also emotionally drain the parties the longer it persists ,
especially the victim of the misconduct perpetrated , such as the defendant in this matter .
However, neither does the absence of the values call for the victim of the misconduct to be
unsuited or to suggest the lack of merit in her forfeiture claim . Section 9(1) of the Divorce
Act does not impose such constraint on the words ‘substantial misconduct’ and neither should
an interpretation thereof have the same effect. Such interpretation would not comport with the
modern tenets of statutory interpretation urged upon by the S CA in Natal Joint Municipal
Pension Fund v Endumeni Municipality.33
[81] Bearing in mind what I have just stated above, I am of the view that the plaintiff
should only be entitled to a twenty five percent (25%) share of the total divisible value of the
joint estate he shares with the defendant , including the defendant’s pension interests. From a
rudimentary angle this means that he forfeits half or 50% of his normal share (which is 50%
of the entire joint estate). I arrived at this outcome, generally, as follows. I explained above
that although the marriage between the parties is of a long duration it lacked the qualitative
traits of a normal and affectionate marital relationship due to the plaintiff’s philandering for
over 15 years since 2010. It could be more if reckoned from 2007 in terms of the defendant’s
account. He then left the defendant to live with a concubine since 2019. Th is means that the
qualitative years of the parties’ marriage was only 12 years. This represents less than half of
the duration of the marriage, reckoned from 1998. Considered together with the other

the duration of the marriage, reckoned from 1998. Considered together with the other
identified misconduct and the plaintiff’s stated contribution to the causes of the breakdown of
the marriage, I find that his benefit should be limited to half of what it should normally be.

33 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (16 March 2012)
[18].

This, to me, represents an appropriate figure or share given under the circumstances. The
plaintiff’s patrimonial benefits, no doubt, will still be substantial given the size of the
defendant’s pension interests and the other assets in the joint estate , but the partial forfeiture
will rid them of their undue traits.
[82] Therefore, I find that t he plaintiff would be unduly benefitted when compared to the
defendant if the Court does not grant a partial forfeiture of half his patrimonial benefits of
marriage in community of property . The defendant’s counterclaim for a forfeiture order
sought against the plaintiff is partially successful and forfeiture will be partially ordered, as
already stated.
Primary care, residence and maintenance of the minor child
[83] As stated above, the primary care and residence are not in dispute. The plaintiff
accepts that primary residence of the minor child should be with the defendant, subject to him
being afforded reasonable contact with the child . The child is currently under the primary
care of the defendant and it appears that this has been the case since 2019. It appears that this
has offered the child a supportive and stable environment. I do not have anything before me
to suggest that the best interests of the child would not be served by maintaining the status
quo.
[84] Although the parties agree that the plaintiff should be afforded reasonable contact
with the minor child, they have not provided the details of how this is to be exercised. I have
considered what was contended for by the defendant in her counterclaim before the plaintiff
conceded this part of the counterclaim. I find what was pleaded there appropriate and in the
interests of the minor child. I will substantially incorporate the pleaded regime in the order.
[85] Regarding maintenance for the minor child , the Court is merely requested to direct
that the plaintiff pay an amount considered appropriate by this Court . No further details are

provided regarding the child’s needs and the plaintiff’s means , especially given the fact that
he says that he is currently unemployed and indigent. Unless, I am to rely on the benefit the
plaintiff is to receive from the division of the joint estate. But such division may take years
before it yield cash which is the conventional commodity for satisfaction of maintenance
needs. Therefore, I agree with the plaintiff, albeit based on different considerations, that the
issue of maintenance of the minor child should be referred to the maintenance court for
proper adjudication. I will include this direction in the order to be made.

Conclusion and costs
[86] The plaintiff is un successful in his claim in convention, save that the parties have
agreed that a decree of divorce should be granted. The plaintiff is partially successful in
fending off the defendant’s counterclaim. This renders the defendant also partially successful.
The lack of substantial success on both ends renders the convention to award the costs of suit
to the successful party inapplicable or difficult to apply.
[87] The defendant, though, contends that the plaintiff should be held liable for costs of
suit, even on an attorney-and-client scale, based on other considerations. These are to do with
the plaintiff’s conduct in this litigation. It is submitted on behalf of the d efendant that the
plaintiff conducted the litigation in these proceedings in a dishonest manner and even abusing
the process of the Court by creating unnecessary disputes, which conduct is both financially
and emotionally prejudicial to the defendant. The plaintiff is said to have launched multiple
overlapping court applications without substantial merit and, thus forcing the defendant to
incur unnecessary legal costs . The Court should mark its disapproval of the p laintiff’s
conduct of weaponising litigation in this manner by granting a punitive costs order against

conduct of weaponising litigation in this manner by granting a punitive costs order against
him. The plaintiff is also said to be the reason the Court-directed mediation did not yield the
desired outcomes. The ‘chair incident’ referred to above is cited in this regard. All these are

denied by the plaintiff. But I find it opportune to add that even during his testimony the
plaintiff has to be cautioned on his mannerism, his words and the tone of voice towards the
defendant’s counsel.
[88] Although, I have lamented the nature and extent of the written closing argument or
heads of argument at the beginning of this judgment, which lamentation is shared by the
defendant, I do not view this and the defendant’s complaints as warranting a punitive costs
order. This is not to say that I see nothing wrong with the plaintiff’s conduct, including the
‘chair incident’ and its undertones of gender -based violence. As for the plaintiff’s conduct in
interlocutory or related proceedings before the Court, I consider the presiding judges in those
proceedings to have been the best placed to direct where the liability for costs should land or
to impose other forms of censure. Considering all these, I will order that each party be liable
for his/her own costs. I find this appropriate and befitting the outcome of this matter
appearing in the order, below.
Order
[89] In the premises, I make the order, that:

1. a decree of divorce is granted dissolving the marriage between the parties;
2. the plaintiff partially forfeits the patrimonial benefits of the marriage and is to
receive only 25% of the total value (after all liabilities are settled) of the joint
estate, inclusive of the defendant’s pension interests in any pension fund, upon
division of the joint estate;
3. subject to 4 and 5 hereof, both parties retain full parental rights and
responsibilities and guardianship in terms of section 18 of the Children's Act
38 of 2005 in respect of the minor child TND (hereafter the minor child’);
4. the primary residence of the minor child shall vest with the defendant;

5. the specific parental responsibilities and rights with regard to contact with the
minor child, as contemplated in section 18 of the Children's Act 38 of 2005 , is
awarded to the plaintiff, in the following manner:
5.1 every alternate weekend from Friday at 17h00 to Sunday at 16h00;
5.2 every alternate school holidays, subject to the following:
5.2.1 short holidays are to be alternated between the parties;
5.2.2 long holidays are to be alternated between the parties; and
5.2.3 Christmas and New Year to be shared and minor child is to
rotate between the parties.
5.3 reasonable telephonic contact.
6. either of the parties may approach a maintenance court with jurisdiction for an
order regarding maintenance of the minor child; and
7. each party shall be responsible of his or her own costs of suit.

___________________________
Khashane La M. Manamela
Judge of the High Court




Dates of Hearing : 26, 27 and 28 November 2025
Date of Final Closing Argument : 14 February 2026
Date of Judgment : 20 August 2026





Appearances :
For the Plaintiff : Ms DJ Sibuyi (Trust account advocate)
Mthunzi Chambers, Arcadia, Pretoria

For the Defendant : Ms KJ Matabane
Instructed by : Makoma Selane Attorneys, Pretoria