THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 291/2017

In the matter between:

BS

APPELLANT

and

PS

RESPONDENT

Neutral citation:       BS v PS (291/2017) [2018] ZASCA 37 (28 March 2018)

Coram:
Lewis, Willis, Swain, Mathopo and Mocumie JJA

Heard:
9 March 2018

Delivered:
28 March 2018

Summary:  Divorce Act 70 of 1979 – s 7(8)(a)(i) – 50 per cent of respondent’s
pension interest in Government Employees Pension Fund assigned to appellant –
Matrimonial Property Act 88 of 1984 – s 10 – deferral of payment of pension interest
– precluded in terms of s 24A of Government Employees Pension Law, 1966.

ORDER

On appeal from: Eastern Cape Division of the High Court, Grahamstown (Bloem J
sitting as court of first instance):

The appeal succeeds with costs.
Paragraphs 28.3 to 28.7 inclusive of the order of the court a quo are set aside
and replaced with the following order:
‘(a)   The defendant is ordered to make payment of the amount of R433 000 to the
plaintiff in satisfaction of the plaintiff's accrual claim in respect of the matrimonial
home.
(b)    The Government Employees Pension Fund (the Fund) is ordered in terms of
s 7(8)(a)(i) of the Divorce Act 70 of 1979, read together with s 24A of the
Government Employees Pension Law, 1966 (the GEPL) to make payment to the
plaintiff in accordance with the provisions of the GEPL, of 50 per cent of the
defendant’s pension interest calculated in accordance with the rules of the Fund, as
at the date of the decree of divorce, being 1 November 2016, which is assigned to
the plaintiff.
(c)   The registrar of the court a quo is directed in terms of s 7(8)(a)(ii) of the Divorce
Act 70 of 1979, to forthwith notify the Fund that pending compliance by the Fund with
the provisions of paragraph (ii) above, an endorsement be made in the records of the
Fund that 50 per cent of the pension interest of the respondent is payable to the
appellant, and that the administrator of the Fund furnish proof of such endorsement
to the registrar, in writing, within one month of receipt of such notification.
(d)   The defendant is ordered to pay the plaintiff's costs.’

JUDGMENT

Swain JA (Lewis, Willis, Mathopo and Mocumie JJA concurring):
[1] The issues for determination in this appeal are first whether the Eastern
Cape Division of the High Court (Bloem J), correctly granted an order for the partial
forfeiture of the benefits of a marriage out of community of property but subject to the
accrual system, against the appellant, Ms BS, in an action instituted by her against
the respondent, Mr PS, for a decree of divorce and ancillary relief. Secondly,
whether Bloem J correctly ordered that payment of the pension benefit to the
appellant be deferred.
[2] It was common cause before the court a quo that:
(a)
The marriage had irretrievably broken down and a decree of divorce should
be granted.
(b)
The parties had declared in their antenuptial contract that the net values of
their respective estates at the commencement of their marriage were ‘nil’.
(c)
The estate of the appellant had not shown any accrual during the marriage.
(d)
The estate of the respondent had shown an accrual in respect of two assets.
First, the matrimonial property valued at R1 450 000 with a bond over the property in
an amount of R584 000, produced a net accrual of R866 000. Second, the pension
interest of the respondent in the Government Employees Pension Fund (the Fund),
was valued at R4 537 231.
[3] The portions of the order granted by the court a quo, which are relevant to
the appeal, were as follows:
(a)
In terms of s 9 of the Matrimonial Property Act 88 of 1984 (the Act), that the
appellant forfeit 80 per cent of her right to share in the accrual of the estate of the
respondent, in respect of these two assets.

(b)
That the respondent pay the amount of R173 200 to the appellant within two
months from the date of the order in satisfaction of the appellant's 20 per cent
interest in the matrimonial property.
(c)
That in respect of the appellant's 20 per cent pension interest in the
respondent’s pension benefits in the Fund, (calculated as at the date of the decree of
divorce), payment to the appellant by the Fund was deferred in terms of s 10 of the
Act, to the date when the pension benefits of the respondent in the Fund accrued to
the respondent. The respondent was ordered to pay interest to the appellant, at the
legal rate on the amount payable to the appellant by the Fund, from the date of the
divorce to the date of payment.
(d)
That the parties pay their own legal costs.
[4]      The main reasons advanced by the court a quo for the order of partial
forfeiture of the right of the appellant to share in the accrual of the estate of the
respondent, were as follows:
(a)
The turning point in the breakdown of the parties’ marriage was when the
appellant informed the respondent of her relationship with a certain Mr W. The court
a quo concluded that the appellant had breached her moral obligation to the
respondent and had thereby caused the breakdown in the marriage.
(b)
The respondent had proved that the appellant would be unduly benefited if a
partial forfeiture order was not granted. The court a quo reasoned that because the
appellant contributed to a lesser degree in the accrual of the respondent's estate
during the marriage, and because her conduct led to the breakdown in the marriage,
she should be ordered to forfeit 80 per cent of her right to share in the accrual of the
estate of the respondent. The appellant was therefore entitled to payment of the sum
of R173 200 in respect of the matrimonial property, being 20 per cent of R866 000
and 20 per cent of the respondent’s pension benefit in the Fund, calculated as at the
date of divorce.
(c)
Regard being had to the evidence that the monthly net income of the
appellant and the respondent was respectively R59 000 and R20 000, and that the

appellant owned a motor vehicle but did not own a house, whereas the respondent
owned a house but did not own a motor vehicle, deferral of the appellant's claim to
share in the accrual of the pension benefit should be granted.
Reasons for the breakdown in the marriage
[5] On a conspectus of the evidence this was not a marriage made in heaven.
Within two years of the parties’ marriage on 1 July 1988 and again during 1996, the
appellant was unfaithful to the respondent and left the marital home, but
subsequently returned. The respondent for his part admitted that he was also
unfaithful to the appellant at this time. The respondent admitted that they had argued
a lot, that he was jealous of her, had accused her of having affairs with other men
and that they swore and shouted at each other. He agreed there was no longer any
love or affection between them and admitted that the appellant had obtained a
protection order restraining him from verbally abusing her.
[6]      The marriage was placed under considerable stress during 2014 when the
respondent who is a Lieutenant Colonel and head of financial services in the South
African Police Service, stationed at Aliwal North at the time, was advised that he was
transferred to Port Alfred in the Eastern Cape. The respondent was excited by this
as he wanted to retire to the coast. A move was however problematic for the
appellant as she was employed on a yearly contract by First National Bank (FNB),
and would have been obliged to repay R150 000, if she moved. She was the main
breadwinner with a child (whom she supported) at university and would have had to
start from scratch in Port Alfred.
[7] The respondent attempted to prevent his transfer, but was advised in
December 2015 that his salary would be stopped if he did not accept the transfer. On
19 January 2016, after making further representations, he was ordered to give effect
to his transfer within seven days.
[8]     The respondent advised the appellant of this turn of events and on the
following morning the appellant handed to him a letter. The contents of the letter are
hotly disputed by the parties and neither the original nor a copy could be produced in
court. The respondent maintains the appellant said she had met her soulmate three

days earlier, who it subsequently transpired was Mr W. The conclusion he drew from
the letter was that the appellant refused to continue with the marriage. In his view,
the appellant's affair with Mr W ended the marriage.
[9] The appellant denied she said this in the letter. She maintained she had said
she wanted her freedom and could not continue with the marriage, because he was
a tyrant who swore and shouted at her. She highlighted the problems in their
marriage which had become so serious it could not be saved. The appellant asked
the respondent to let her start a new life. According to the appellant, her affair with
Mr W only started on 24 February 2015 and she later left the marital home at the
beginning of April 2015. She denied this caused the breakdown of the marriage,
maintaining that it was impossible to live with the respondent.
[10]    The court a quo erred in concluding that the appellant caused the breakdown
of the marriage. To place all the blame on the appellant was not justified by the
evidence. The marriage was unhappy from an early stage, with both parties being
guilty of infidelity. Insufficient weight was accorded to the marriage being placed
under considerable strain by the respondent’s impending transfer and the justifiable
inability of the appellant to accompany him. There was no evidence that the
appellant had commenced an affair with Mr W when she handed the letter to the
respondent, which was not produced in court. That the appellant wished to terminate
an obviously unhappy marriage is not surprising.
The proprietary consequences of the marriage
[11]     The respondent acknowledged that the appellant was very successful in her
employment. They never spoke of ‘her money’ or ‘my money’ as they shared
expenses. They originally had a joint account at Absa bank into which their income
was deposited.  According to the appellant they thereafter opened separate accounts
at FNB, with each of them having access to both accounts. The respondent
acknowledged that the appellant made a large contribution to the joint expenses of
the household and that shortly before she left, was paying 80 per cent of their
expenses.

[12] The respondent became a member of the Fund on 28 December 1982,
when he joined the South African Police Service. The respondent's employer
deducted his pension contributions and the balance of his salary was used for
household expenses. He maintained that the appellant never contributed directly to
his pension fund.
[13]    As regards the matrimonial home, the bond repayments were deducted from
the respondent’s salary. Although conceding they could be viewed as a joint
expense, he again maintained that the appellant had not contributed directly to the
bond repayment. The appellant, however, pointed out that the income she generated
enabled the respondent to pay an increased bond instalment, and that they had
agreed the respondent would pay for the medical aid and the house, and she would
pay for the rest of their expenditure.
[14]    The evidence again establishes that the court a quo erred in concluding that
the appellant contributed to a lesser degree in the accrual of the respondent's estate.
Counsel for the respondent was constrained to concede that the evidence did not
support this finding by the court a quo. The respondent was only able to afford the
deductions made from his salary in respect of the bond repayments on the
matrimonial home, as well as his pension contributions to the Fund, because the
appellant made a far greater contribution to their joint expenses.
[15]     When due regard is had to the fact that the court a quo erred in concluding
that the appellant caused the breakdown in the marriage and also erred in
concluding that the appellant contributed to a lesser degree in the accrual of the
respondent's estate, it should not have ordered the appellant to forfeit 80 per cent of
her interest in the accrual of the respondent's estate. No forfeiture order should have
been granted when sufficient weight is also accorded to the duration of the marriage
of approximately 28 years and the evidence that the appellant does not own a home.
In addition, no evidence was led on whether the appellant possesses a pension for
her old age.
Deferral of the payment to the appellant in terms of s 10 of the Matrimonial
Property Act 88 of 1984, of the portion of the respondent's pension interest

assigned to the appellant, in accordance with s 24A of the Government
Employees Pension Law 1996 (GEPL)
[16]     I turn to consider the order granted by the court a quo that payment to the
appellant by the Fund, of the appellant's 20 per cent pension interest in the
respondent’s pension benefits in the Fund, (calculated as at the date of the decree of
divorce), was deferred in terms of s 10 of the Act to the date when the pension
benefits of the respondent in the Fund, accrued to the respondent. It is necessary to
do so as the respondent supported the order of deferral granted by the court a quo.
[17]     Whether the court a quo was entitled to grant an order of deferral requires an
interpretation of the provisions of s 24A of the GEPL, read together with s 10 of the
Act. The relevant portions of s 24A of the GEPL provide as follows:
‘24A
Payment of pension interest upon divorce or dissolution of customary
marriage.
(1) The Board shall direct the Fund to reduce a member's pension interest by any amount
assigned from the member’s pension interest to the member's former spouse in terms of a
decree of divorce granted under section 7(8)(a) of the Divorce Act, 1979 (Act 70 of 1979), or
a decree for the dissolution of a customary marriage.
(2) (a) Subject to paragraph (j), for purposes of section 7(8)(a) of the Divorce Act, 1979 …,
the portion of a member's pension interest assigned to the member's former spouse in terms
of a decree of divorce or a decree for the dissolution of a customary marriage is deemed to
accrue to the member on the date on which the decree of divorce or the decree for the
dissolution of a customary marriage is granted.
(b) The amount of the member's pension interest in the Fund shall be determined and the
amount of the member’s pension interest that is assigned to the former spouse shall be
calculated by the Fund in accordance with the rules as at the date of the decree of divorce or
the decree for the dissolution of a customary marriage.
. . .
. . .

(e) The Fund shall, within 45 days of the submission of the court order by the former spouse
of a member, request the former spouse to elect whether the amount to be deducted must
be –
(i) paid directly to the former spouse; or
(ii) transferred to an approved retirement fund on behalf of the former spouse.
(f) The former spouse shall, within 120 days of being requested to make a choice-
(i) inform the Fund of the manner in which the amount referred to in paragraph (e) must be
dealt with; and
(ii) if the former spouse chooses that the amount must be paid to the former spouse directly,
provide the Fund with the details that are necessary to effect the payment; or
(iii) if the former spouse chooses that the amount must be transferred to an approved
pension fund on his or her behalf, provide the Fund with the details of that approved
retirement fund.
(g) The Fund shall pay or transfer the amount within 60 days of being informed of the
manner in which the amount shall be dealt with in accordance with the former spouse's
choice.
(h) In the event that the former spouse fails to make a choice or identify the approved
retirement fund to which the amount should be transferred within the period referred to in
paragraph (f), the Fund shall pay the amount directly to the former spouse within 30 days of
the expiry of that period.’
[18]      In Wiese v Government Employees Pension Fund & others [2012] ZACC 5;
2012 (6) BCLR 599 (CC) paras 5-9, the Constitutional Court in dealing with the
history and object of the amendment, analysed the legislative enactments that had
preceded it and pointed out that:
‘During 1989, section 7(7)(a) was added by the Divorce Amendment Act to deal with certain
problems. Under the Divorce Act non-member spouses were, in certain circumstances,
entitled to payment of part of the pension interest due, or assigned to, the member of the
Government Pension Fund when any pension benefit accrued to that member. A pension
interest which had not yet accrued was not considered an asset in the spouse's estate. To

cure this defect, the amendment, provided that a pension interest is deemed to be an asset
in the estate for the purpose of determining patrimonial benefits.’ (Footnotes omitted.)
[19]    The problem, however, that still remained was:
‘. . . the question of when payment of a pension interest should occur. Generally, this
depended on the rules of a specific fund but usually took place on retirement, dismissal or
some other defined “exit event”. The problem was that a non-member spouse would be
severely prejudiced if the value of his or her benefit was frozen at the date of divorce and the
beneficiary would have had to wait for a later exit event.’
[20]    The Constitutional Court noted that in order to cure this defect, various
amendments were made to the Pension Funds Act 24 of 1956 (PFA) which
introduced the ‘clean-break’ principle. The result was that:
‘. . . the non-member spouse no longer has to wait for an exit event to occur. This means
that a pension benefit awarded to a non-member spouse in terms of the Divorce Act is
deemed to have accrued on the date of the divorce. This demonstrates the interplay
between the Divorce Act and the PFA.’
[21]    The Constitutional Court noted that there was an oversight in that these
amendments only applied to the PFA and the Government Pension Fund could not
benefit from the ‘clean-break’ principle as it was governed by its own statute. The
introduction of s 24A of the GEPL, by way of s 3 of the GEPL Amendment Act 19 of
2011, cured this oversight and introduced the ‘clean-break’ principle which:
‘. . . authorises the Government Pension Fund to make payment of a pension interest upon
divorce or dissolution of a customary marriage.’
[22]     The clear object of the amendment is to ensure that the non-member spouse
receives payment of the amount assigned from the member’s pension interest in
terms of a decree of divorce, without delay and within the statutorily defined periods,
after the grant of the order. The peremptory provisions of s 24A(2)(e), (f), (g) and (h)
of the GEPL ensure attainment of this objective in that:
(a)      The Fund is obliged within 45 days of the submission of the court order by
the former spouse of a member, to request the former spouse to elect whether
payment is to be made directly to the former spouse, or to an approved retirement
fund on behalf of the former spouse.

(b)
The former spouse is obliged, within 120 days of being requested to make
this choice, to inform the Fund of the manner in which payment must be made.
(c)
The Fund is obliged within 60 days to make payment in accordance with this
choice. In the event that the former spouse fails to make a choice within 120 days,
the Fund is obliged to make payment directly to the former spouse within 30 days of
the expiry of that period.
[23]      Accordingly, the issue for determination is whether the provisions of s 24A of
the GEPL oust the jurisdiction of a court to grant deferment of satisfaction of an
accrual claim (in the form of payment of the amount assigned from the member’s
pension interest in terms of a decree of divorce) in terms of s 10 of the Act. The
section provides as follows:
‘10 Deferment of satisfaction of accrual claim
A court may on the application of a person against whom an accrual claim lies, order that
satisfaction of the claim be deferred on such conditions, including conditions relating to the
furnishing of security, the payment of interest, the payment of instalments, and the delivery
or transfer of specified assets, as the court may deem just.’
[24]     As stated in De Wet v Deetlefs 1928 AD 286 at 290:
‘It is a well recognised rule in the interpretation of statutes that, in order to oust the
jurisdiction of a court of law, it must be clear that such was the intention of the Legislature.’
In my view, the clear intention of the legislature in enacting s 24A of the GEPL was
to oust the jurisdiction of a court to grant deferment of satisfaction of an accrual
claim, in the form of payment of the amount assigned from the member’s pension
interest in terms of a decree of divorce, for the reasons that follow.
[25]     The deeming provision contained in s 24A(2)(a) of the GEPL, that the portion
of a member's pension interest assigned to the member's former spouse in terms of
a decree of divorce, is deemed to accrue to the member on the date of the grant of
the order, may be described as ‘conclusive or irrebuttable’ rather than ‘merely prima
facie or rebuttable’ (S v Rosenthal 1980 (1) SA 65 (A) at 75-76). This is because it
serves as the basis for a determination by the Fund in terms of s 24A(2)(b), of the
amount of the member’s pension interest in the Fund, as well as the amount of the

member’s pension interest that is assigned to the former spouse, as at the date of
the decree of divorce.
[26]    The provision of peremptory defined periods, commencing on the
presentation of the order to the Fund by the non-member spouse, to ensure payment
without delay of the amount so determined by the Fund, which has to be assigned
from the member’s pension interest in terms of the order, is irreconcilable with the
power to defer payment. Deferral of payment would defeat the object of the section.
[27]     As pointed out by the Constitutional Court in Wiese, the object of s 24A of
the GEPL was to introduce the ‘clean-break’ principle with regard to the payment of
the amount assigned from the member’s pension interest to the non-member
spouse, in a decree of divorce. A deferral of payment would also defeat this
objective.
[28]    Accordingly, the court a quo erred in ordering that payment to the appellant
by the Fund of the appellant's 20 per cent pension interest in the respondent’s
pension benefits in the Fund (calculated as at the date of the decree of divorce), be
deferred in terms of s 10 of the Act to the date when the pension benefits of the
respondent in the Fund, will accrue to the respondent.
[29]     As the only issue before the court a quo was whether the appellant should
forfeit the patrimonial benefits of the marriage and the appellant has been successful
on this issue, there can be no reason why the respondent should not be ordered to
pay the costs of the appellant incurred in the court a quo and on appeal.
[30]     The following order is granted:
The appeal succeeds with costs.
Paragraphs 28.3 to 28.7 inclusive of the order of the court a quo are set aside
and replaced with the following order:
‘(a)   The defendant is ordered to make payment of the amount of R 433 000 to the
plaintiff in satisfaction of the plaintiff's accrual claim in respect of the matrimonial
home.

(b)    The Government Employees Pension Fund (the Fund) is ordered in terms of
s 7(8)(a)(i) of the Divorce Act 70 of 1979, read together with s 24A of the
Government Employees Pension Law, 1966 (the GEPL) to make payment to the
plaintiff in accordance with the provisions of the GEPL, of 50 per cent of the
defendant’s pension interest calculated in accordance with the rules of the Fund, as
at the date of the decree of divorce, being 1 November 2016, which is assigned to
the plaintiff.
(c)   The registrar of the court a quo is directed in terms of s 7(8)(a)(ii) of the Divorce
Act 70 of 1979, to forthwith notify the Fund that pending compliance by the Fund with
the provisions of paragraph (ii) above, an endorsement be made in the records of the
Fund that 50 per cent of the pension interest of the respondent is payable to the
appellant, and that the administrator of the Fund furnish proof of such endorsement
to the registrar, in writing, within one month of receipt of such notification.
(d)   The defendant is ordered to pay the plaintiff's costs.’

K G B Swain

Judge of Appeal

Appearances:
For the Appellant:

J L Olivier

Instructed by:

McIntyre Van Der Post, Bloemfontein

For the Respondent:

P Jooste (with T Rossi)

Instructed by:

Honey Attorneys Inc, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 March 2018

STATUS

Immediate

BS v PS (291/17) [2018] ZASCA 37 (28 March 2018)

Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

The SCA today upheld an appeal from the Eastern Cape Division of the High Court,
Grahamstown, in which an order had been granted in a divorce action, in terms of s 9 of the
Matrimonial Property Act 88 of 1984 (the Act), that the appellant forfeit 80 per cent of her
right to share in the accrual of the estate of the respondent, her husband, in respect of two
assets. These were the matrimonial home and the respondent’s pension interest in the
Government Employees Pension Fund (the Fund). It was also ordered that payment of the
appellant's 20 per cent pension interest in the respondent’s pension benefits in the Fund, be
deferred in terms of s 10 of the Act, to the date when the pension benefits of the respondent
in the Fund accrued to the respondent. The SCA held that the court a quo had erred in
granting a forfeiture order against the appellant, and in ordering a deferral of the appellant's
right to payment of her pension interest in the respondent’s pension benefits. A deferral of
payment was precluded in terms of the provisions of s 24A of the Government Employees
Pension Law 1996.