Case note: Circumventing Section 7(8)(a)(I) of the Divorce Act 70 of 1979 and Section 37D of the Pension Funds Act 24 of 1956 Through Strategic Resignation: CNN V NN 2023 (5) SA 199 (GJ)

• Citation: (2024) 36 SA Merc LJ 112
• DOI: https://doi.org/10.47348/SAMLJ/v35/i2a5
• Published date: 14 January 2025
• Pages: 112-124
• Author: Maloka, T.
• Date: 14 January 2025

JOBNAME: SAMLJ Vol 31 Part 1 PAGE: 1 SESS: 43 OUTPUT: Sat Nov 23 10:07:40 2024 SUM: 2FD7EBA3

/first/Juta−JM/SA−Merc−2024/SAMLJ−2024−V36−pt1/05Maloka

Case notes

CIRCUMVENTING SECTION 7(8)(a)(I) OF

THE DIVORCE ACT 70 OF 1979 AND

SECTION 37D OF THE PENSION FUNDS ACT

24 OF 1956 THROUGH STRATEGIC

RESIGNATION: CNNvNN

2023 (5) SA 199 (GJ)

TUMO MALOKA

Professor at University of Pretoria

KOMA RAMONTJA

PhD Candidate — National University of Lesotho

I INTRODUCTION

Suppose that the High Court dissolved a couples’ marriage on

14 October 2022 and incorporated the parties’ signed settlement

agreement in its order. Unbeknown to the divorce court and the wife,

the husband had resigned from his employment and exited his

retirement fund on 7 May 2021. This was roughly two months after

being served with the divorce summons. For all practical purposes, when

the court granted the divorce order, the husband was not a member of a

retirement fund. Consequently, he did not have a pension interest from

which the ex-wife could be allocated a portion (CNNvNN2023 (5) SA

199 (GJ) para 4 (‘CNN’)). It transpired that at the time the divorce order

was granted, the husband’s pension benefits were still held by the fund.

Following the divorce order that assigned her 50 per cent of the

husband’s pension interest, the ex-wife approached the fund with the

aim of requesting payment of what she believed was due to her

(CNN para 5). The fund advised her that the ex-husband’s pension

benefit had accrued to him and that he was no longer a member of the

fund. Furthermore, the fund informed her that the divorce order did not

comply with the legislative prescripts and could not be enforced. In turn,

the fund’s Divorce and Maintenance officer advised that for her to be

002 - SA Mercantile Law - November 21, 2024

112

https://doi.org/10.47348/SAMLJ/v35/i2a5

(2024) 36 SA Merc LJ 112

© Juta and Company (Pty) Ltd