Kgopane v Kgopane and Another (1819/2011) [2012] ZANWHC 58 (16 August 2012)

Kgopane v Kgopane and Another (1819/2011) [2012] ZANWHC 58 (16 August 2012)

The court held that only a court order made at the time of divorce can direct a pension fund to pay a portion of a member's pension interest to a non-member spouse. The applicant did not claim payment of the first respondent's pension interest in the divorce summons, and the liquidator appointed post-divorce had no powers regarding the pension interest. Any agreement or appointment of a liquidator after the divorce concerning pension interest is unenforceable against the pension fund and is in conflict with section 37A of the Pension Fund Act. The applicant is therefore not entitled to an order directing the Government Employees Pension Fund to pay 50% of the first respondent's pension...

Citation
[2012] ZANWHC 58
Parties
Applicant: Mokgara Phillip Kgopane; Respondent: Grace Windy Kgopane; Respondent: Mr Starbuck
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
16 August 2012
Case Number
1819/2011
Procedural Posture
Civil Application / Final Judgment
Outcome
Application to direct the pension fund to pay 50% of the first respondent's pension interest to the applicant is refused. Substitution of the liquidator is granted.
Judges
N Gutta
Legal Topics
Division of Joint Estate, Pension Interest, Liquidator Substitution, Divorce Act Section 7, Pension Fund Act Section 37a
Family and Children Civil Procedure Division of Joint Estate Pension Interest Liquidator Substitution Divorce Act Section 7 Pension Fund Act Section 37a

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Parties

Mokgara Phillip Kgopane

Applicant

Grace Windy Kgopane

Respondent

Mr Starbuck

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to claim 50% of the first respondent's pension interest after the divorce order was granted.
  2. 2 Whether a liquidator appointed after divorce can enforce division of pension interest against the pension fund.
  3. 3 Whether the court can order the pension fund to pay a share of pension interest to the applicant post-divorce.

Ratio Decidendi

The court held that only a court order made at the time of divorce can direct a pension fund to pay a portion of a member's pension interest to a non-member spouse. The applicant did not claim payment of the first respondent's pension interest in the divorce summons, and the liquidator appointed post-divorce had no powers regarding the pension interest. Any agreement or appointment of a liquidator after the divorce concerning pension interest is unenforceable against the pension fund and is in conflict with section 37A of the Pension Fund Act. The applicant is therefore not entitled to an order directing the Government Employees Pension Fund to pay 50% of the first respondent's pension...

Court Disposition

Application to direct the pension fund to pay 50% of the first respondent's pension interest to the applicant is refused. Substitution of the liquidator is granted.

Orders

  • Mr Starbuck is removed as Receiver and Liquidator and substituted with Mr Cornelius Mosito as Receiver and Liquidator in the joint estate between the applicant and first respondent, with full powers as set out in Annexure 'X'.
  • Mr Mosito is exempted from furnishing security for the proper performance of his duties as Liquidator.