M v M (022/2022) [2023] ZASCA 75 (26 May 2023)

M v M (022/2022) [2023] ZASCA 75 (26 May 2023)

The Supreme Court of Appeal found that the full court misdirected itself by raising condonation and waiver issues mero motu, which were neither pleaded nor ventilated at trial. The evidence established that the respondent engaged in a prolonged extramarital affair, misappropriated joint estate assets for the benefit of Eva, and failed to contribute meaningfully to the joint estate. The applicant did not condone the respondent's misconduct, and her refusal of conjugal rights was justified by health concerns. The respondent's conduct constituted substantial misconduct, and the applicant made significant financial contributions to the joint estate. The respondent would be unduly benefitted...

Citation
[2023] ZASCA 75
Parties
Applicant: M[...] D[...] M[...]; Respondent: T[...] P[...] M[...]
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 May 2023
Case Number
022/2022
Procedural Posture
Civil Appeal / Appeal From the Limpopo Division of the High Court, Polokwane, Following Special Leave to Appeal
Outcome
Appeal upheld with costs; High Court order set aside and substituted to grant the defendant's counterclaim and order forfeiture of patrimonial benefits by the plaintiff in favour of the defendant.
Judges
Molemela JA, Mbatha JA, Meyer JA, Matojane JA, Siwendu AJA
Legal Topics
Divorce Act Section 9, Partial Forfeiture of Benefits, Substantial Misconduct, Division of Joint Estate, Pension Interest, Condonation and Waiver
Family and Children Divorce Act Section 9 Partial Forfeiture of Benefits Substantial Misconduct Division of Joint Estate Pension Interest Condonation and Waiver

Case Brief

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Parties

M[...] D[...] M[...]

Applicant

T[...] P[...] M[...]

Respondent

Procedural Posture

Civil Appeal / Appeal From the Limpopo Division of the High Court, Polokwane, Following Special Leave to Appeal

Legal Issues

  1. 1 Whether the applicant was entitled to a partial forfeiture order in respect of her pension interest held in GEPF.
  2. 2 Whether the respondent's prolonged extramarital affair and misappropriation of joint estate assets constituted substantial misconduct.
  3. 3 Whether the respondent would be unduly benefitted if the order for partial forfeiture was not granted.

Ratio Decidendi

The Supreme Court of Appeal found that the full court misdirected itself by raising condonation and waiver issues mero motu, which were neither pleaded nor ventilated at trial. The evidence established that the respondent engaged in a prolonged extramarital affair, misappropriated joint estate assets for the benefit of Eva, and failed to contribute meaningfully to the joint estate. The applicant did not condone the respondent's misconduct, and her refusal of conjugal rights was justified by health concerns. The respondent's conduct constituted substantial misconduct, and the applicant made significant financial contributions to the joint estate. The respondent would be unduly benefitted...

Court Disposition

Appeal upheld with costs; High Court order set aside and substituted to grant the defendant's counterclaim and order forfeiture of patrimonial benefits by the plaintiff in favour of the defendant.

Orders

  • Condonation for the late filing of the application for special leave to appeal is granted.
  • Special leave to appeal the judgment and order of the full court is granted.