GN v JN

• Jurisdiction: South Africa
• Judgment Date: 04 November 2016
• Citation: 2017 (1) SA 342 (SCA)

GN v JN
2017 (1) SA 342 (SCA)

2017 (1) SA p342

Citation	2017 (1) SA 342 (SCA)
Case No	600/2015; [2016] ZASCA 162
Court	Supreme Court of Appeal
Judge	Mpati AP, Seriti JA, Petse JA, Swain JA and Makgoka AJA
Heard	August 23, 2016
Judgment	November 4, 2016
Counsel	M Haskins SC (with RM Molea) for the appellant.; JL Basson for the respondent.

Flynote: Sleutelwoorde

B Marriage — Divorce — Proprietary rights — Pension benefits — Non-member spouse's share — Parties married in community of property — Court decreeing divorce not making order declaring pension interest of member spouse to form part of joint estate — Whether in circumstances non-member spouse entitled to pension interest of member spouse — Pension interest C of member by operation of law vesting in joint estate, to which parties entitled as at date of divorce — Divorce Act 70 of 1979, ss 7(7)(a) and (8).

Headnote: Kopnota

The appellant had previously obtained a divorce order in the regional court D against her husband, the respondent, to whom she had been married in community of property. The deed of settlement which was incorporated included a term, headed 'Immovables and movables', providing that 'the joint estate shall equally be divided between the parties'. The appellant some time later, and arising out of a dispute as to the method of the division of the joint estate, approached the High Court on notice of motion, seeking E an order inter alia for the appointment of a liquidator and a declarator that she and the respondent were entitled to an amount equal to 50% of each other's pension interest. The High Court refused the application. This is an appeal against that decision.

The principal argument raised by the respondent in opposing the relief sought was that s 7(7)(a) of the Divorce Act 70 of 1979, entitling a spouse to a F share of her spouse's pension interest, had to be read with s 7(8). The effect was that a spouse in a marriage in community of property would only be entitled to the pension interest of the other spouse in circumstances where the court granting the decree of divorce had made an order, in terms of s 7(8), declaring such pension interest to be part of the joint estate. No such order had been made here. This issue formed the focus of the appeal. G The respondent further relied on the failure of the appellant to mention the pension interest in her divorce action or anywhere in the settlement agreement.

Held, that s 7(7)(a) was self-contained and not made subject to s 7(8). As per its clear and unequivocal language, s 7(7)(a) vested in the joint estate the pension interest of the member spouse for the purposes of determining H the patrimonial benefits, to which the parties were entitled as at the date of their divorce. Further, the legislature's choice of the word 'shall' coupled with the word 'deemed' in s 7(7)(a) was indicative of the peremptory nature of this provision. (Paragraphs [25] – [26] at 352A – G.)

Held, accordingly, that the entitlement of a non-member spouse to a share of the members' spouse was not dependent on a declaration in terms of s 7(8) to I such effect by the court decreeing divorce. Neither was it necessary for the non-member spouse to make such a claim for the pension interest in the divorce summons, or for mention to be made of it in the settlement agreement. (Paragraphs [25] and [28] at 352A – D and 353C – D.)

(The other issue arising concerned the correct interpretation of the settlement agreement itself, and in particular whether the 'joint estate' which was to be J 'equally divided between the parties' included the pension interest of a

2017 (1) SA p343

member spouse, in the light of the heading referring only to 'Immovables A and movables'. The majority held that it did. This conclusion was based on: what it considered to be the clear language of the clause under consideration; the accepted definition of a 'pension interest' as qualifying as a notional asset; given that, the marriage being one in community of property, the joint estate necessarily included the pension interest of either party as contemplated in s 7(7)(a) of the Act; and the fact that a party's entitlement B to a pension interest fell within the rubric of movables. (See [32] – [35].) The minority reached the opposite conclusion, based on what it viewed as the clear language of the settlement agreement and the circumstances in which it came into being. (See dissenting judgment at [38] – [72].))

Cases cited C

Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) ((1991) 12 ILJ 259; [1990] ZASCA 108): referred to

African Products (Pty) Ltd v AIG South Africa Ltd 2009 (3) SA 473 (SCA): dictum in para [13] applied

Cloete Murray and Another NNO v FirstRand Bank Ltd t/a Wesbank 2015 (3) SA 438 (SCA) ([2015] ZASCA 39): referred to D

Elesang v PPC Lime Ltd and Others 2007 (6) SA 328 (NC): referred to

Eskom Pension and Provident Fund v Krugel and Another 2012 (6) SA 143 (SCA) ([2011] 4 All SA 1; [2011] ZASCA 96): referred to

Fritz v Fundsatwork Umbrella Pension Fund and Others 2013 (4) SA 492 (ECP): considered

Kauesa v Minister of Home Affairs 1996 (4) SA 965 (NmS) (1995 (11) BCLR 1540): E dictum at 973J – 974A applied

Kilburn v Tuning Fork (Pty) Ltd 2015 (6) SA 244 (SCA) ([2015] ZASCA 53): dictum in para [15] applied.

Kotze v Kotze and Another [2013] JOL 30037 (WCC): dictum in para [32] approved

M v M LPD 18/15: referred to F

Macallister v Macallister [2013] JOL 30404 (KZD): referred to

Maharaj v Maharaj and Others 2002 (2) SA 648 (D) ([2002] 2 All SA 34): approved

Motsetse v Motsetse [2015] 2 All SA 495 (FB): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in G para [18] applied

National Credit Regulator v Opperman and Others 2013 (2) SA 1 (CC) (2013 (2) BCLR 170; [2012] ZACC 29): dictum in para [99] applied

Old Mutual Life Assurance Co (SA) Ltd and Another v Swemmer 2004 (5) SA 373 (SCA): dicta in paras [18], [20] and ]26] applied H

Schutte v Schutte 1986 (1) SA 872 (A): distinguished

Sempapalele v Sempapalele and Another 2001 (2) SA 306 (O): overruled

Sentinel Mining Industry Retirement Fund and Another v Waz Props (Pty) Ltd and Another 2013 (3) SA 132 (SCA) ([2012] ZASCA 124): dictum in para [10] applied

Snow Delta, MV: Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA): referred to I

Tödt v Ipser 1993 (3) SA 577 (A) ([1993] 2 All SA 303): dictum at 589B – C applied

Welkom Municipality v Masureik and Herman t/a Lotus Corporation and Another 1997 (3) SA 363 (SCA): dictum at 371G – H applied

YG v Executor, Estate Late CGM 2013 (4) SA 387 (WCC): overruled. J

2017 (1) SA p344

A Legislation cited

The Divorce Act 70 of 1979, s 7(7)(a) and s 7(8): see Juta's Statutes of South Africa 2015/16 vol 7 at 4-191.

Case Information

M Haskins SC (with RM Molea) for the appellant.

JL Basson for the respondent. B

An appeal from the Gauteng Division of the High Court, Pretoria (Kgomo J sitting as court of first instance).

Order

1.

C The appeal is upheld with costs.

2.

The order of the court below is set aside and in its place the following order is substituted:

'1.

Mr Phillip Jordaan of Divorce Settlement Services, Pretoria, is appointed as liquidator of the joint estate of the applicant and the respondent with the powers and obligations set out in D annexure A to this judgment.

2.

It is declared that the applicant is entitled to an amount equal to 50% of the respondent's net pension interest in the Government Employees Pension Fund Scheme calculated as at 25 May 2012.

3.

E It is declared that the respondent is entitled to an amount equal to 50% of the applicant's net pension interest in the Government Employees Pension Fund Scheme calculated as at 25 May 2012.

4.

The respondent shall pay the costs of the application.'

Judgment

Petse JA (Mpati AP and Swain JA concurring):

[1] The primary issue in this appeal concerns the proper interpretation of ss 7(7) and (8) of the Divorce Act 70 of 1979 (the Act). The subsidiary issue concerns the legal effect of the terms of a clause relating to the division of the joint estate contained in the settlement agreement G concluded by the parties and incorporated in the divorce order granted in the Regional Court for the North West Regional Division, Temba (the trial court), on 25 May 2012. These issues arise against the following backdrop.

H [2] The appellant, Ms GN, and the respondent, Mr JN, were formerly married in community of property. On 25 May 2012 their marriage was dissolved by the trial court at the suit of the appellant. The divorce order granted by the trial court incorporated a provision that 'the deed of the settlement between the parties . . . [annexed thereto] is made an order of the court'. The parties' deed of settlement in turn provided inter alia that I their joint estate would be divided equally between them. The appellant asserted that they incorporated this clause into their settlement agreement because at that stage they could not agree on the method of the division of the joint estate.

[3] On 15 April 2013 the appellant's attorneys wrote a letter to the J respondent inviting him to make proposals in relation to the division of

2017 (1) SA p345

Petse JA

the joint estate. They indicated that if no proposals were forthcoming, A the appellant would institute legal proceedings in which a determination of that dispute would be sought. In the event, no response was received from the respondent. Consequently, on 26 June 2013 the appellant, as applicant, instituted legal proceedings on notice of motion against the respondent in the Gauteng Division of the High Court, Pretoria, in which, in essence, she sought an order for...