S M v B M (29933/2017) [2020] ZAGPJHC 328 (28 August 2020)

S M v B M (29933/2017) [2020] ZAGPJHC 328 (28 August 2020)

The court found that the applicant failed to lead evidence at trial demonstrating the nature and extent of the undue benefit the respondent would receive if forfeiture of the applicant's pension interest was not ordered. The pleadings alone were insufficient, and the applicant's counsel could not point to any trial evidence supporting the claim. The court was not persuaded that another court would reach a different conclusion or order forfeiture. Accordingly, the application for leave to appeal did not meet the raised threshold under section 17(1) of the Superior Courts Act and was refused.

Citation
[2020] ZAGPJHC 328
Parties
Applicant: S M; Respondent: B M
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 August 2020
Case Number
29933/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 26 March 2020
Outcome
Application for leave to appeal refused with costs.
Judges
Senyatsi ML
Legal Topics
Forfeiture of Pension Interest, Leave to Appeal Standard, Marriage in Community of Property
Family and Children Civil Procedure Forfeiture of Pension Interest Leave to Appeal Standard Marriage in Community of Property

Case Brief

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Parties

S M

Applicant

B M

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 26 March 2020

Legal Issues

  1. 1 Whether the court misdirected itself by not ordering forfeiture of the respondent's share in the applicant's pension fund.
  2. 2 Whether evidence was led at trial showing the nature and extent of undue benefit to the respondent if forfeiture was not ordered.
  3. 3 Whether leave to appeal should be granted in terms of section 17(1) of the Superior Courts Act.

Ratio Decidendi

The court found that the applicant failed to lead evidence at trial demonstrating the nature and extent of the undue benefit the respondent would receive if forfeiture of the applicant's pension interest was not ordered. The pleadings alone were insufficient, and the applicant's counsel could not point to any trial evidence supporting the claim. The court was not persuaded that another court would reach a different conclusion or order forfeiture. Accordingly, the application for leave to appeal did not meet the raised threshold under section 17(1) of the Superior Courts Act and was refused.

Court Disposition

Application for leave to appeal refused with costs.

Orders

  • The application for leave to appeal is refused with costs.