Case No. : 3981/2010 L J L HEARD ON

1 FREE STATE HIGH COURT, BLOEMFONTEIN REPUBLIC OF SOUTH AFRICA case No. : 3981/ 2010 In the matter between:- D M L Plaintiff and L J L Defendant _____ HEARD ON: 19 MARCH 2013 _____ JUDGMENT BY: RAMPAI, J _____ DELIVERED ON: 25 APRIL 2013 _____ [1] These are divorce proceedings. The parties have lived together as husband and wife. They are now on the verge of parting ways. Both of them agreed, albeit on different grounds, that their marriage relationship has irretrievably broken down. The core of their disagreement concerns the defendant s claim to the plaintiff s pension interest. [2] The parties were married to each other in community of property and without an ante-nuptial contract in Bloemfontein on 19 August 2005.

2 The marriage still subsists. There are no minor children born of the marriage. There is no written agreement devolving the patrimonial benefits. 2[3] Before the marriage the defendant was a radio announcer in the employ of the South African Broadcasting Corporation. He was seemingly also a member of a pension fund then. He resigned from the SABC. Upon his resignation he claimed his pension benefits. The pension fund seemingly paid out to him approximately R350 000,00 when the pension benefits of his pension interest accrued. [4] At the time of the hearing, the defendant belonged to no pension or provident fund.

3 However, he is still gainfully occupied. Currently he earns his livelihood as a businessman. He runs a pub, in other words a tavern. On average his weekly profit fluctuates between R3 000,00 and R5 000,00. [5] The defendant sought, apart from the final decree of divorce , and the forfeiture of patrimonial benefits arising from the marriage in community of property, a special order declaring him to be entitled to 50% share of what was referred to as the plaintiff s pension proceeds . [6] The defendant s counterclaim was founded upon the allegations: that the plaintiff habitually burdened the joint estate, without consulting the defendant, with financial obligations which she cannot afford to settle; that she contributed virtually nothing towards the upkeep and material growth of the joint estate; that undue pressure was often exerted upon the defendant to settle such debts alone and 3 that the plaintiff took most of the joint assets away from the communal home when she deserted the defendant cum animo non revertendi during September 2009.

4 [7] The plaintiff denied the defendant s allegations. The foundation of her replication, in other words, the plaintiff s plea, was based on the allegations: that the defendant was also a member of a pension fund; that when he left the employment of the SABC he, through resignation, became entitled to payment of his pension benefit; that he subsequently used such money exclusively for his personal benefit and that he would, therefore, unduly benefit if he were to receive a share in the plaintiff s pension benefit. [8] Perhaps I have to add that in her declaration attached to her summons the plaintiff had prayed for the general division of the joint estate.

5 [9] Those then were the rules of engagement. The defendant s grounds of the claim have to be considered against the backdrop of the plaintiff s grounds of resistance. [10] The crisp issue in these action proceedings was whether or not, on the peculiar factual circumstances of this particular action, the defendant was entitled to an order whereby he was declared to be entitled to a 50% share of the plaintiff s pension interest, calculated as at the date of the divorce , when it 4eventually ripens into pension benefits on some date in the future. [11] The phrase pension interest is defined in section 1 divorce Act 70 of 1979 as amended: 'pension interest', in relation to a party to a divorce action who- (a) is a member of a pension fund (excluding a retirement annuity fund), means the benefits to which that party as such a member would have been entitled in terms of the rules of that fund if his membership of the fund would have been terminated on the date of the divorce on account of his resignation from his office; (b) The subsection is not relevant.

6 [12] In the case of Elesang v PPC Lime Ltd and Others 2007 (6) SA 328 (NC) Olivier J observed that when regard was had to the definition of the phrase pension interest it appeared that it applied only in the case where one of the spouses was still a member of a pension fund at the time of the divorce . [13] Section 7(7)(a) divorce Act 70 of 1979 as amended provides: (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 paragraphs (b) and (c), be deemed to be part of his assets. 5[14] In the case of Sempapalele v Sempapalele and Another 2001 (2) SA 306 (O) Musi J, as he then was, commented as follows about subsection 7(a): Now s 7 of the divorce Act was introduced precisely to improve on the existing law.

7 The section does not, however, abolish the existing law but rather opens a window and provides a mechanism, for parties engaged in divorce proceedings, to have access to the pension interest of either of them for purpose of achieving an equitable distribution of their assets. It provides that the pension interest of a party shall be deemed to be an asset in his estate for that purpose. This means that the interest is not ordinarily part of the joint estate but shall be such for purpose of division upon divorce . [15] In pretty much the same vein in Maharaj v Maharaj and Others 2002 (2) SA 648 (D) at 651B Magid J approvingly stated that it was quite clear, as held by Musi J, that prior to the introduction of section 7 into the divorce statute, one s pensions interest did not form part of the joint estate of spouses married in community of property.

8 [16] In the case of Kotze v Kotze and Another 2013 JOL 30037 (WCC) at [19] Saldanha J, writing for the full bench, held: It appeared that prior to the introduction of section 7 of the divorce Act, the party whose spouse was a member of a pension fund did not have a recognised interest in the pension of such other spouse. Where such benefit had not yet accrued it was not generally regarded as an asset in such pension holder s estate where the marriage was in community of property and moreover 6neither wat it regarded as an asset of the joint estate. In determining the patrimonial benefits in the joint estate the pension expectation was not taken into account.

9 With the introduction of section 7(7)(a) in the Act the situation changed substantially. [17] An individual s pension interest was never an asset in the joint estate of spouses married in community of property prior to the enactment of the aforesaid section 7. Notwithstanding comments or views to the contrary, even after the enactment of section 7, an individual s pension interest is still not an asset in a joint estate of spouses married in community of property. It is only an expectation of pension benefit yielded by a ripe pension interest which becomes an asset with real economic value KOTZE s case , supra.

10 But even then it becomes an asset in the separate estate, post decree of divorce , of a spouse who was a member of a pension fund. The section deems it to be so. [18] When a pension interest ripens, the administrator of the pension fund concerned determines the actual monetary value of a pension interest. Such value constitutes a pension benefit, which accrues from a ripe pension interest in favour or a member spouse. [19] A pension benefit is accrually derivative from a pension interest. The defendant s entitlement, if any there is, to the plaintiff s future pension benefit has to stem from the provisions of subsection (7)(a) read together with those of subsection (8)(a).