Government Employees Pension Fund v Naidoo and Another (32/2005) [2005] ZASCA 112; [2006] 3 All SA 332 (SCA); 2006 (6) SA 304 (SCA) (28 November 2005)

Government Employees Pension Fund v Naidoo and Another (32/2005) [2005] ZASCA 112; [2006] 3 All SA 332 (SCA); 2006 (6) SA 304 (SCA) (28 November 2005)

The Supreme Court of Appeal held that section 21(1) of the Government Employees Pension Law 1996 does not preclude payment of a half share of an accrued pension benefit to a spouse who was married in community of property and is entitled to such share upon divorce. Mrs Naidoo’s claim was not as a creditor seeking to attach or execute against the benefit, but as a co-owner of the joint estate. The pension benefit had accrued prior to the divorce and formed part of the joint estate, making her entitled to half. The court found that the divorce order, although granted per incuriam in terms of sections 7(7) and 7(8) of the Divorce Act, did not affect her substantive entitlement under the law...

Citation
[2005] ZASCA 112
Parties
Appellant: Government Employees Pension Fund; Respondent: Jane Naidoo; Respondent: Sivanaundan Naidoo
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 2005
Case Number
32/2005
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal dismissed.
Judges
Scott, Navsa, Mthiyane, Lewis, Maya
Legal Topics
Divorce Act Section 7, Pension Interest on Divorce, Community of Property, Enforcement of Divorce Orders
Family and Children Civil Procedure Divorce Act Section 7 Pension Interest on Divorce Community of Property Enforcement of Divorce Orders

Case Brief

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Parties

Government Employees Pension Fund

Appellant

Jane Naidoo

Respondent

Sivanaundan Naidoo

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the wife married in community of property is entitled on divorce to recover from the pension fund her share of the husband’s pension benefit.
  2. 2 Whether section 21(1) of the Government Employees Pension Law 1996 precludes payment of the pension benefit to the non-member spouse after accrual.
  3. 3 Whether the divorce order granted in terms of sections 7(7) and 7(8) of the Divorce Act was enforceable after the pension benefit accrued.

Ratio Decidendi

The Supreme Court of Appeal held that section 21(1) of the Government Employees Pension Law 1996 does not preclude payment of a half share of an accrued pension benefit to a spouse who was married in community of property and is entitled to such share upon divorce. Mrs Naidoo’s claim was not as a creditor seeking to attach or execute against the benefit, but as a co-owner of the joint estate. The pension benefit had accrued prior to the divorce and formed part of the joint estate, making her entitled to half. The court found that the divorce order, although granted per incuriam in terms of sections 7(7) and 7(8) of the Divorce Act, did not affect her substantive entitlement under the law...

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • The Government Employees Pension Fund is to pay Mrs Naidoo her half share of the accrued pension benefit.