Oosthuizen N.O v D.J.P.B and Others (20665/2021) [2023] ZAGPPHC 30 (24 January 2023)

Oosthuizen N.O v D.J.P.B and Others (20665/2021) [2023] ZAGPPHC 30 (24 January 2023)

The court found that clause 3.4 of the settlement agreement, which purported to assign the deceased's pension to his children upon his death, amounted to an invalid pactum successorium. The right to the pension interest vested only upon the deceased's death, making it conditional upon survivorship and thus mortis causa. The clause did not comply with the requirements of section 7(8) of the Divorce Act or section 37D of the Pension Funds Act, and the pension fund was not bound to pay the benefit to the children. The agreement could not be enforced against the estate, and the claim by the children for the pension interest was dismissed. The court emphasized the importance of properly...

Citation
[2023] ZAGPPHC 30
Parties
Applicant: Elizabeth Oosthuizen N.O.; Respondent: DJP B[....]1; Respondent: L Goosen; Respondent: Emmerentia Heineman; Respondent: The Master of the High Court, Pretoria; Respondent: Glacier Financial Solutions
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 January 2023
Case Number
20665/2021
Procedural Posture
Declaratory Application / Opposed Motion Before the High Court
Outcome
Application dismissed; costs to be paid by the deceased estate.
Judges
L. Coetzee
Legal Topics
Pactum Successorium, Stipulatio Alteri, Divorce Settlement, Pension Interest, Estate Claims
Family and Children Civil Procedure Pactum Successorium Stipulatio Alteri Divorce Settlement Pension Interest Estate Claims

Case Brief

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Parties

Elizabeth Oosthuizen N.O.

Applicant

DJP B[....]1

Respondent

L Goosen

Respondent

Emmerentia Heineman

Respondent

The Master of the High Court, Pretoria

Respondent

Glacier Financial Solutions

Respondent

Procedural Posture

Declaratory Application / Opposed Motion Before the High Court

Legal Issues

  1. 1 Whether clause 3.4 of the divorce settlement agreement is enforceable against the deceased estate.
  2. 2 Whether the clause constitutes a stipulatio alteri in favour of the children.
  3. 3 Whether the clause amounts to a pactum successorium and is thus invalid.

Ratio Decidendi

The court found that clause 3.4 of the settlement agreement, which purported to assign the deceased's pension to his children upon his death, amounted to an invalid pactum successorium. The right to the pension interest vested only upon the deceased's death, making it conditional upon survivorship and thus mortis causa. The clause did not comply with the requirements of section 7(8) of the Divorce Act or section 37D of the Pension Funds Act, and the pension fund was not bound to pay the benefit to the children. The agreement could not be enforced against the estate, and the claim by the children for the pension interest was dismissed. The court emphasized the importance of properly...

Court Disposition

Application dismissed; costs to be paid by the deceased estate.

Orders

  • The application is dismissed.
  • The cost of the application is to be paid by the deceased estate.