Government Employees Pension Fund v Naidoo and Another

• Jurisdiction: South Africa
• Judge: Scott JA, Navsa JA, Mthiyane JA, Lewis JA and Maya AJA
• Judgment Date: 28 November 2005
• Citation: 2006 (6) SA 304 (SCA)
• Docket Number: 32/2005
• Hearing Date: 17 November 2005
• Counsel: C van Jaarsveld for the appellant. No appearance for the respondents.
• Court: Supreme Court of Appeal

Scott JA:

[1] The respondents in this appeal were formerly married. I Their marriage, which was in community of property, was dissolved in the Durban High Court on 7 May 2004. The first respondent (Mrs Naidoo) was the plaintiff in the divorce proceedings. The second respondent (Mr Naidoo) did not oppose them. The order granted in Mrs Naidoo's favour included the following: J

Scott JA

'(d)

That the plaintiff is entitled, in terms of ss 7(7)(a) and 7(8)(a)(i) of the Divorce Act 70 A of 1979 (hereinafter referred to as the said Act), to a one half share of the defendant's interest in and to the defendant's Pension Fund by virtue of his employment with the KwaZulu-Natal Provincial Administration (hereinafter referred to as the said Fund), calculated at the date of divorce between the parties but payable when the benefits of the said Fund accrue to the defendant. B

(e)

That the Manager of the said Fund is directed to endorse its records, in terms of s 7(8)(a)(ii) of the said Act, to reflect the plaintiff's right as aforesaid in and to the defendant's interest in the said Fund.

(f)

That, in terms of s 7(8)(a)(i) of the said Act, the said Fund and/or the defendant shall pay to the plaintiff one half of the value of the defendant's interest in and C to the said Fund calculated at the date of divorce but payable when the benefits thereof accrue to the defendant.'

The orders in terms of these paragraphs were granted per incuriam. Subsections 7(7) and 7(8) of the Divorce Act 70 of 1979 are concerned with pension benefits which have not yet accrued to the member spouse. Insofar as is relevant, the subsections read: D

'(7)(a) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paras (b) and (c), be deemed to be part of his assets.

(b) The amount so deemed to be part of a party's assets, shall be reduced by any amount of his pension interest which, by virtue of para (a), in a previous divorce - E

(i)

was paid over or awarded to another party; or

(ii)

for the purposes of an agreement contemplated in ss (1), was accounted in favour of another party.

(c) . . . .

(8) Notwithstanding the provisions of any other law or of the rules of any pension fund - F

(a)

the court granting a decree of divorce in respect of a member of such a fund, may make an order that -

(i)

any part of the pension interest of that member which, by virtue of ss (7), is due or assigned to the other party to the divorce action concerned, shall be paid by that fund to that other party when any pension benefits accrue in respect of that member; G

(ii)

an endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that other party;

(b)

...