Khosana v Khosana
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mthimunye AJ |
| Judgment Date | 07 September 2023 |
| Citation | 2023 JDR 3323 (FB) |
| Docket Number | 4324/2021 |
| Court | Free State Division, Bloemfontein |
Mthimunye AJ:
In this divorce action, the Plaintiff prays for an order in the following terms:
A decree of divorce;
Division of the joint estate;
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An order that the Defendant shall pay the Plaintiff an amount of R14 000.00 (Fourteen Thousand Rand) per month as spousal maintenance commencing on the first day of the month following the month in which a decree of divorce is granted and thereafter on or before the 1st day of each and every succeeding month; which maintenance to escalate annually by the headline inflation rate.
An order directing the Defendant to retain the Plaintiff as a beneficiary on his medical aid plan post retirement and pay for all ancillary medical costs not covered by the medical aid.
An order that the Plaintiff is entitled in terms of section 7(8)(a) of the Divorce Act 70 of 1979 as amended, to payment of 50% of the Defendant’s pension interest in the Provident Fund of the University of the Free State with member number 97915 as calculated from the date of divorce.
An order that the Provident Fund of the University of the Free State must endorse its records to the effect that the Plaintiff is entitled to 50% of the Defendant’s pension interest as at the date of divorce, and pay to the Plaintiff her share of the Defendant’s pension interest as referred to herein within 120 days after having been informed of how the amount must be dealt with in accordance with the Plaintiff’s election.
Costs of suit.
The Defendant in his plea raised a counterclaim in terms of which he prays for forfeiture in terms of Section 9 of the Divorce Act 70 of 1979 (“the Divorce Act”). Further the Defendant pleaded that he will keep the Plaintiff on his medical aid until date of retirement which is 31 December 2023, however, post retirement he will no longer be fully subsidised and as such will not be able to keep the Plaintiff on the medical aid. The Defendant further pleaded that he cannot afford the R14 000.00 per month spousal maintenance claimed by the Plaintiff.
The parties were married to each other in community of property on 05 February 2000. Marriage in community of property entitles the parties to 50% of the joint estate on the dissolution of marriage. The only exception to this principle is section 9 of the Divorce Act and which enables the court to grant
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forfeiture when the court is satisfied that the party against whom it is sought, will be unduly benefitted if it is granted.
At the commencement of the trial, both parties recorded that they are in agreement that the marriage has irretrievably broken and therefore both seek a decree of divorce and the division of the joint estate, but for the Defendant’s pension fund.
In dispute, and what this court is called upon to determine are the following issues: The forfeiture of the Defendant’s pension funds by the Plaintiff, the retention of the Plaintiff as a beneficiary on the Defendant’s medical aid post the Defendant’s retirement, and payment of spousal maintenance of R14 000 per month by the Defendant.
Forfeiture of the Defendant’s Pension Interest
The Plaintiff seeks an order entitling her to 50% of the Defendants’ pension whilst the Defendant has prayed for forfeiture in terms of section 9 of the Divorce Act as stated above.
Section 9(1) of the Divorce Act provides:
When a decree of divorce is granted on the ground of the irretrievable break-down of a 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 of forfeiture is not made, the one party will relation to the other be unduly benefited.”
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The onus to prove that the party against whom forfeiture is sought will be unduly benefited rests on the party who seeks it. The Defendant basis his prayer for forfeiture on the following reasons: that when the Plaintiff received her pensions in January 2014, she told him that the money was for her and her children and refused to contribute meaningfully to the joint estate, instead she gave R20 000.00 to her son without discussing same with him. According the Defendant, the Plaintiff never discussed with or informed him what she has done with the rest of her money.
The Defendant further testified that despite the parties having had an agreement that she would pay off the loan they had taken to extend the house when she retires, on retirement, the Plaintiff refused to settle the loan and argued that the money was hers and her children’s. Although she later on paid R30 000.00 towards the loan, this was only in 2020. At some point the son of the Plaintiff confronted the Defendant about wanting his ‘mother’s money’ and threatened him that if that is the case, the marriage might as well end. Afterwards he apologised but the Defendant never asked about this money until the Plaintiff left the marital home in 2021.
Consequently, the Defendant argues that the Plaintiff will be unduly benefited were she to benefit from the Defendant’s pension benefit whereas he did not benefit from hers. For purposes of clarity, the Plaintiff received an amount of R273 986.20 as her pension pay out on 28 January 2014. During her evidence in chief the Plaintiff counted a number of items (including paving the yard, sofas, built-in cupboards, buying a shack, paying for the daughter’s wedding) she claims she paid for with her pension money and thus contributed to the joint estate. When confronted with the Defendant’s version during cross-examination, she conceded that most of these were paid for by...
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