NPM v MHM
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Bezuidenhout J |
| Judgment Date | 21 April 2023 |
| Citation | 2023 JDR 1721 (KZP) |
| Hearing Date | 22 March 2023 |
| Docket Number | 3204/2021P |
| Court | KwaZulu-Natal Division, Pietermaritzburg |
Bezuidenhout J:
The matter was set down on the trial roll on 22 March 2023. The parties had however prepared a stated case and also heads of argument. It was contended that the matter, as it was crowded out, could be dealt with on the papers with the heads of argument as there is a stated case and it is a point of law which needs to be decided. The matter is therefore dealt with accordingly.
2023 JDR 1721 p2
Bezuidenhout J
The stated case in terms of Rule 33 appears at page 35 to 41 of the indexed papers. It sets out there would be no oral evidence and that heads of argument would be filed.
The facts are that Plaintiff and Defendant were married to each other on 4 September 1993 in community of property. From the marriage certificate at page 27 of the index papers it appears that Defendant was born during 1966 and Plaintiff during 1969. The parties separated during December 2004 and seized living together as husband and wife from then. Thereafter Plaintiff had an extra marital child. Both parties agreed that the marriage has broken down.
There are two homes and Plaintiff and Defendant each reside in one of these homes. Plaintiff is a member of the Government Employee Pension Fund and Defendant was employed by NAMPAK but was retrenched on 31 January 2016 and then received an amount of R 609 455.14. In terms of the common cause facts the greater portion was used to build the house in which he is residing. The parties intend that each party will retain the home in which they are presently residing.
The question of law in dispute is in terms of what is set out in the summary of facts at page 38 of the indexed papers whether Plaintiff is entitled to 50 % of the pension benefit paid to Defendant upon his retrenchment and secondly whether Defendant is entitled to 50 % of Plaintiff's pension interest with the Government Employees Pension Fund up to date of divorce.
In the particulars of claim Plaintiff sought forfeiture of benefits and the heads of argument deal mainly with this issue. However in the summary of facts it is set out that Plaintiff no longer seeks forfeiture of the patrimonial benefits but contends that she is entitled to 50 % of the pension interest of Defendant and that he is entitled to 50 % of her pension interest but only up to the date on which they separated. Defendant contends that although they may have separated during December 2004 he is entitled to 50 % of Plaintiff's pension interest up to the date of the divorce. The amount that was
2023 JDR 1721 p3
Bezuidenhout J
received from NAMPAK accrued to the joint estate and was used for building the house in which he resides.
As the stated case sets out the issue which has to be decided in paragraphs 13 and 14 which I have referred to above it is no longer necessary to deal with the issue of forfeiture.
The first issue is whether Plaintiff is entitled to 50 % of the payment that Defendant received on retrenchment during 2016. It is common cause that at that stage they were still married and the marriage in actual fact still subsists up till today. Accordingly the amount that Defendant received on his retrenchment formed part of the joint estate of the parties.
In Ndaba v Ndaba 2017 (1) All SA 33 (SCA) it was held at paragraph 26:
"The language of section 7(7)(a) of (referring to the Pension Funds Act 24 of 1956) is clear and unequivocal. It vests in the joint estate...
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