MASHOLA V MASHOLA: WHEN CAN A COURT MAKE AN ORDER THAT A SPOUSE FORFEITS THEIR HALF-SHARE IN THE OTHER SPOUSE’S PENSION?

Case Name: Mashola v Mashola

Citation: (022/2022) [2023] ZASCA 75

Court: Supreme Court of Appeal

Date of Judgment: 26 May 2023

Introduction to the Matter

This case confirms the legal principles that apply to partial forfeiture orders in divorce matters under section 9(1) of the Divorce Act.

A partial forfeiture order is where a court orders one party to partially or completely forfeit a benefit that is due to them following a divorce.

Overview of The Matter at Hand

Mr and Mrs Mashola were married in community of property. Therefore, Mr Mashola was entitled to half of Mrs Mashola’s pension when they divorced.

Mrs Mashola sought a court order to cause her ex-husband to forfeit his half-share of her pension because he robbed their Joint Estate during their marriage.

Mrs Mashola contended that her ex-husband would be unduly benefitted if he received half of her pension.

Legal Issues Raised in The Case

The legal issue in this case related to the requirements that must be met for the court to grant a forfeiture order in a divorce matter.

Relevance to Divorce and Family Law

This case is important to divorce and family law because it relates to the division of a joint estate.

It reiterated the established legal principle that even if you are entitled to a specific benefit after you divorce, a court can order you to forfeit that benefit in certain circumstances.

Applicable Legislation

The Divorce Act, which governs divorce in South Africa.

 Summary of The Relevant Legislation

According to section 9(1), when a couple divorces on the grounds of the irretrievable breakdown of the marriage, the court can order that one of the parties partially or completely forfeits whatever benefit is due to them. The court must be satisfied that one party will be unduly benefitted if the order is not made.

In making the order, the court must consider the following two factors:

1.    The duration of the marriage.

2.    The circumstances that led to the breakdown of the marriage and any substantial misconduct on the part of either party.

 According to sections 7(7) and 7(8), a spouse’s pension forms part of the joint estate.

Explanation of How the Legislation Applies to The Case

According to section 7(7) and 7(8), Mrs Mashola’s pension formed part of the joint estate.

In line with section 9(1) of the Divorce Act, the court had to satisfy itself that Mr Mashola would be unduly benefitted if the forfeiture order was not made.

The court did this by considering the circumstances that led to the breakdown of the Masholas’ marriage. The court found that the way that Mr Mashola treated the joint estate amounted to misconduct.

Detailed Description of The Facts Leading Up to The Case

Mr and Mrs Mashola were married in community of property and ran a family business. Mr Mashola started having an affair with one of their employees, Eva. Because of her unhappiness, Mrs Mashola dismissed Eva from the family business.

Mr Mashola then established various businesses with Eva which competed with the family business.

The family business eventually died. Mr Mashola also built a house for Eva, from the withheld proceeds from the sale of cattle, and did not contribute proportionately towards the maintenance of his children or household expenses.

He also filed for divorce from Mrs Mashola on the grounds of the irretrievable breakdown of the marriage. By the time he filed for divorce there was nothing in the joint estate except a few assets and Mrs Mashola’s pension.

Mrs Mashola did not want Mr Mashola to get half of her pension because of how he depleted their joint estate through his dealings with Eva during their marriage.

Chronological Order of Events

1985 – The couple married in community of property.

2007 – Mrs Mashola became aware of her husband’s affair with Eva.

2016 – Mr Mashola filed for divorce and Mrs Mashola filed a counterclaim for a forfeiture order.

2020 – The court dismissed Mrs Mashola’s counterclaim and ordered that the joint estate be

           divided equally.

2021 – Mrs Mashola launched her first appeal with the High Court but lost.

2022 – Mrs Mashola appealed to the Supreme Court of Appeal and won.

Relationship Between the Parties Involved

Mr and Mrs Mashola were husband and wife.

Issues to be Determined

The court had to determine if Mr Mashola should get his half-share of Mrs Mashola’s pension.

Primary Legal Questions Raised in The Case

There were three main legal questions put before the court:

1.     Is Mrs Mashola entitled to a forfeiture order against Mr Mashola in respect of her pension?

2.     Did Mr Mashola’s behaviour during the marriage constitute substantial misconduct?

3.     Would Mr Mashola be unduly benefitted if he received his half-share of Mrs Mashola’s pension.

How the Issues Relate to Divorce and Family Law in South Africa

The issues raised in this case are important because they affect the division of a joint estate.

This case particularly has consequences for spouses who abuse and control the joint estate during the marriage, but still want their equal share when they divorce.

Legal Arguments Presented

Mr Mashola claimed half of Mrs Mashola’s pension based on section 7(7) of the Divorce Act, which deems a spouse’s pension to form part of the joint estate.

Summary of The Arguments Made by Both Parties

Mrs Mashola argued that Mr Mashola will be unduly benefitted if he receives half of her pension because he did not contribute proportionately to the joint estate.

Instead, he channelled money from the joint estate to his business enterprises with Eva.

Mr Mashola said that he did not use proceeds of the joint estate on Eva. He further denied having any business interests with Eva.

Evaluation of The Strengths and Weaknesses of Each Argument

Mrs Mashola’s arguments were supported by evidence which the court relied on in reaching its decision.

The court found Mr Mashola’s evidence to be contradictory and inconsistent.

Discussion of Precedents and Other Relevant Case Law

The court referred to several judgments that clarified the legal principles under section 9(1).

The following principles are especially important:

To be granted a divorce in South Africa, you do not need to prove that one party is at fault. However, the court can consider misconduct by one party in granting a forfeiture order.

The fact that there was misconduct by one party does not on its own justify a forfeiture order. There needs to be an undue benefit if the order is not granted.

Section 9(1) requires the court to determine if one party will be unduly benefitted if the forfeiture order is not made. The court must make this determination based only on the factors listed in the section.

One party of the marriage cannot control and abuse the joint estate as if they have sole power over it.
 

Court’s Decision and Order

The court decided that Mr Mashola would be unduly benefitted if he receives his half-share of Mrs Mashola’s pension. The court ordered that Mr Mashola forfeits his share of Mrs Mashola’s pension.

Explanation of The Reasoning Behind the Decision

The court said that Mrs Mashola made direct financial contributions to the joint estate whereas Mr Mashola used all his money for the benefit of Eva.

He contributed very little to the joint estate, but instead depleted it. The law does not allow one party to use the assets of the joint estate as if he/she has sole power to do so.

Implications for Divorce and Family Law

• This case restated the requirement for a court to grant a forfeiture order – one party must stand to benefit unduly if the order is not made.
• This case also confirmed that even if the law is not concerned with who is at fault in a divorce, misconduct by one party is still relevant because it will be one of the factors that the court considers in determining undue benefit.

Lessons to Be Learned from The Case for Potential Clients

Potential clients should be advised that spouses are not necessarily always entitled to their share of benefits when they divorce.

In certain circumstances, the court can order that one party forfeits an entitlement if that party will be unduly benefitted. This applies to spouses who divorce on the grounds of the irretrievable breakdown of the marriage.

Recommendations for Individuals Facing Similar Situations 

Individuals facing similar situations are advised to speak to divorce and family law specialists about the possibility of asking the court for a forfeiture order against their spouse.

Judges and Legal Teams

For First to Fifth Appellant: M G Haskins (with him I Ossin)

Instructed by DDKK Attorneys Inc., Polokwane; Phatshoane Henney Attorneys, Bloemfontein

For Respondents: No Appearance

Instructed by Mulisa Mahafha Attorneys, Polokwane

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