Supreme Court of Appeal of South Africa – M v M (022/2022) [2023] ZASCA 75 (26 May 2023).

This case pertained to a divorce proceeding and the subsequent appeal. The main issues in the case revolved around the division of assets, particularly the pension benefits of the parties, and the conduct of both parties leading to the breakdown of the marriage.

The full court, per Kganyago, Muller JJ and Naude AJ, dismissed the appeal by the applicant for an order for partial forfeiture of benefits. The court found that the applicant had given the respondent permission to continue having extramarital affairs until he got tired and condoned the alleged extramarital affair with Eva for the past nine years. As a result of such condonation, she waived her right to rely on the long enduring extramarital affair of the respondent with Eva as a ground for the irretrievable breakdown of the marriage since she was content with it. Therefore, her appeal was dismissed.

The applicant then sought special leave to appeal to the Supreme Court of Appeal. The main legal questions before the court were whether the applicant was entitled to a partial forfeiture order in respect of her pension interest/benefit, whether the respondent’s long enduring extramarital affair and financial misconduct constituted substantial misconduct, and whether the full court was correct in finding that the applicant condoned the respondent’s extramarital affair and waived her right to rely on that ground of misconduct.

The case involves a couple who were married in community of property and profit and loss. The husband (respondent) initiated the divorce proceedings, and the wife (applicant) counterclaimed for a partial forfeiture order in respect of her pension benefits. The High Court dismissed the applicant’s counterclaim and granted a decree of divorce, among other orders. The applicant appealed this decision to the full court, which upheld the High Court’s decision.

The case was complex and involved a detailed examination of the facts, the conduct of both parties, and the application of relevant legal principles, particularly those related to the division of assets in a divorce and the concept of substantial misconduct.

The Appellant’s Case

The appellant’s evidence presented during the trial was that the breakdown of the marriage relationship was due to the respondent’s prolonged extramarital affair with one Eva, an erstwhile employee of their Financial Services business. The appellant became aware of the respondent’s extramarital affair with Eva through an anonymous call in July 2007. She confronted Eva, who admitted in a derogatory manner that she was involved in a love relationship with the respondent. The respondent denied the existence of the affair. The appellant described this incident as a turning point in her life, as the affair was conducted in public.

Analysis of the Law

The court referred to the SCA case of Wijker v Wijker Wijker v Wijker 1993 (4) SA 720 (A) which empowers the appeal court to reconsider the facts where the trial court failed to do so. The court used this principle to consider the evidence presented before it in making a finding whether the respondent will be unduly benefitted as the applicant contends.

In Engelbrecht v Engelbrecht 1989 (1) SA 597 (C), the court held that it could never have been the intention of the legislature that a wife, who had for 20 years assisted her husband faithfully should, because of her adultery, forfeit the benefits of their marriage. This case was cited as an authority in support of the proposition that a spouse’s misconduct does not automatically lead to forfeiture of benefits.

In Badenhorst v Badenhorst [2005] ZASCA 116; 2006 (2) SA 255 (SCA), the court endorsed the principle that the factual consideration of issues raised in s 7(3) of the Divorce Act cannot be a matter of discretion. The court also restated the principle that one party to the marriage cannot control and abuse the assets of a joint estate as if they have marital power in cases where assets were beyond the reach of the other party. The court held that this principle should equally apply to the consideration of forfeiture orders sought by spouses married in community of property and profit and loss as they hold undivided shares in the joint estate.

In BS v PS [2018] ZASCA 37; 2018 (4) SA 400 (SCA) para 10-11 (BS v PS), the court found that the lower court should not have focused on an isolated incident of adultery by one of the spouses instead of considering the duration of the marriage and circumstances which gave rise to the breakdown of the marriage.

In Member of the Executive Council, Department of Education, Eastern Cape v Komani School and Office Suppliers CC t/a Komani Stationers [2022] ZASCA 13; 2022 (3) SA 361 (SCA) para 53, the court emphasised that one of the enduring tenets of judicial adjudication is that courts are enjoined to decide only the issues placed before them by the litigants. The court held that it is not open to a court to change the factual issues presented by the parties or introduce new issues.

How did the court consider the principles of partial forfeiture of benefits and misconduct in the divorce case?

The respondent’s prolonged extramarital affair with Eva was not an isolated incident, but a prolonged relationship which existed up to the time when the respondent filed for divorce. It was gross, repugnant and humiliating as it was unashamedly flaunted in the public domain to the prejudice of the applicant. At the time of the dissolution of the marriage it had run for over nine years. The respondent only filed for divorce once nothing was left in the joint estate, save for the applicant’s pension interest and a few assets. The respondent bankrolled Eva at the expense of his family, in that he set up various business interests with Eva. The applicant had to approach the maintenance court for the education of her children, where she also learned for the first time about the existence of other children of the respondent born out of wedlock. The respondent made very minimal contributions for the benefit of the joint estate, though he had established several businesses with Eva. The applicant was solely depended on her salary as an educator. The court considered the principles of partial forfeiture of benefits and misconduct in the divorce case by examining whether the respondent’s long-enduring extramarital affair with Eva, abuse and misappropriation of funds from various family business interests for the benefit of Eva, and failure to contribute meaningfully to the joint estate constituted substantial misconduct on his part. The court also considered whether an undue benefit would accrue to one party in relation to the other if an order for forfeiture was not granted. Ultimately, the court held that taking into consideration the duration of the marriage, circumstances that led to its breakdown, and both parties’ substantial misconduct, an undue benefit would not accrue to one party in relation to the other if an order for forfeiture was not granted.

What are the restated principles of section 9(1) of the Divorce Act?

The court restated the principles of section 9(1) of the Divorce Act, which provides that when a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage, the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favor of the other, either wholly or in part. The court may do so if it is satisfied that, having regard to the duration of the marriage, circumstances which gave rise to its breakdown, and any substantial misconduct on either party’s part, an undue benefit would accrue to one party in relation to the other if such an order were not made.

The issues before this Court?

The legal questions before the court were as follows:

(a) Whether the applicant was entitled to a partial forfeiture order in respect of her pension interest/benefit held in GEPF;

(b) Whether the respondent’s long-enduring extramarital affair with Eva, the abuse and misappropriation of funds from various family business interests for the benefit of Eva, and the failure to contribute meaningfully to the joint estate by the respondent translated into substantial misconduct on his part;

(c) Whether, in that regard, the respondent would be unduly benefitted if the order for partial forfeiture of benefits was not granted;

(d) Whether the full court had erred in its approach to determining whether an undue benefit would accrue to one party if an order for partial forfeiture was not made.

Order

1 Condonation for the late filing of the application for special leave to appeal the
order of the full court dated 23 March 2021 was granted.
2 Special leave to appeal the judgment and order of the full court, Limpopo
Division of the High Court, Polokwane, dated 23 March 2021 was granted.
3 The appeal was upheld with costs and the order of the abovementioned full
court was set aside and substituted as follows:
‘4.1 The appeal is upheld with costs.’
4.2 Paragraphs (c) and (d) of the order of the High Court (MG Phatudi J) are set
aside and substituted as follows:
‘(c) The defendant’s counterclaim succeeds.
(d) The patrimonial benefits of the parties’ marriage in community of property in
respect of the defendant’s pension benefits and interest held in the Government
Employee Pension Fund are forfeited by the plaintiff in favour of the defendant.’

Summarised by Authored by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.