TINA HOKWANA | Husband forfeits wife’s pension share after affair with employee

Mr and Mrs M were married  on  October 1 1985 in community of property and 31 years later, the husband sought a divorce at the Limpopo high court.

On November 19 2020, the court dismissed Mrs M’s counterclaim for a partial forfeiture order in respect of her pension benefits. Instead, it ruled Mr M was entitled to 50% of her pension fund and ordered the Government Employees Pension Fund (GEPF) to pay Mr M 50% of his ex-wife’s pension.

Aggrieved by this order, Mrs M sought leave to appeal from the Limpopo high court the judgment (except for the one dissolving the marriage) on January 27 2021 and two months later the court granted her leave to appeal. Mrs M then petitioned the Supreme Court of Appeal (SCA) for an appeal.

The SCA had to determine whether Mr M would unduly benefit if the order for partial forfeiture of benefits was not granted in terms of section 9(1) of the Divorce Act 70 of 1979. Mrs M testified that the reason for the marital breakdown was the prolonged extramarital affair by Mr M with one Eva, who was an employee in their business.

She became aware of the extramarital affair through an anonymous call in July 2007. She confronted Eva, who admitted in a derogatory manner that she was indeed in a relationship with her husband. Mr M, however, denied the affair.

Mrs M described that incident as a turning point in her life as the affair was conducted in the public domain. She further found out during maintenance proceedings that Mr M had six other children outside the marriage, Eva’s child being one of them.

She testified that she tried marriage counselling with Mr M immediately after learning about the affair, however, it bore no fruit. During the second session of counselling, Mr M informed the counsellor that ‘this thing of marital affair, [was] something that [was] in him and that a man who did not have an extramarital affair was a fool’. He said nothing would stop him from having mistresses.

She testified that on March 25 2008, she dismissed Eva, which did not go down well with Mr M. In retaliation, he informed her that he was in love with Eva and will marry her, build her a house and start a business with her.

This was the beginning of her financial woes as he stopped depositing money into her account as he had previously done. She also testified that she suffered financial difficulty since he had abandoned his financial obligations towards her and their children, leaving her to shoulder the responsibility .

She said that he instead directed his attention to building an empire with his mistress by establishing numerous businesses to the financial detriment of their joint estate. In support of her claim for a partial forfeiture of benefits, she testified that her ex-husband gave money to Eva to start a cash loan business – in direct competition with the family business.

The former husband’s business with his mistress were followed by others.

Mrs M further testified that Eva, while in their employment, bought a stand close to their matrimonial home and Mr M built her a double-storey house on it , partially completed around November 2012. During this period, Mr M sold nine head of cattle out of their 73 in Dendron to a local chief. The proceeds of the sale of cattle totalling R34,000 were deposited into the Eva’s bank account.

Eva was also given access to the family’s motor vehicles without Mrs M’s consent.

In court, Mr M denied having an extramarital affair with Eva and testified that they were only friends. He visited her, assisted her in collecting money from clients and supported her in her other business interests. He denied having business interests with Eva and alluded only to her being involved in the family business.

It was under cross-examination when he was confronted with evidence that he conceded to have established businesses with Eva. The SCA found that the fact that Mr M channelled assets of the joint estate to set up business enterprises with Eva constituted misconduct.

Further, there was no evidence of him having made any contribution towards Mrs M’s pension. The SCA was satisfied that the evidence presented showed substantial misconduct on the part of Mr M and also took into consideration that he abused the joint estate resources for years for the benefit of Eva. He also failed to adequately provide for the joint estate during their marriage.

Mrs M’s appeal was upheld with costs and the SCA ruled that Mr M forfeit his 50% share of ex-wife’s pension benefits.

Judgment: http://www.saflii.org/za/cases/ZASCA/2023/75.html