Wijker v Wijker (325/92) [1993] ZASCA 101; [1993] 4 All SA 857 (AD) (26 August 1993)

Wijker v Wijker (325/92) [1993] ZASCA 101; [1993] 4 All SA 857 (AD) (26 August 1993)

The Supreme Court of Appeal held that the trial court misdirected itself by unfairly attributing blame for the breakdown of the marriage solely to the appellant and by applying an incorrect principle of fairness regarding the division of assets in a marriage in community of property. The court clarified that substantial misconduct is not a prerequisite for a forfeiture order under section 9(1) of the Divorce Act, and that the factors listed are not cumulative. The appellant's entitlement to share in the joint estate arises from the nature of community of property, and the respondent's refusal to return the shares was not justified. Both parties contributed to the breakdown of the...

Citation
[1993] ZASCA 101
Parties
Appellant: Jacob Harmen Wijker; Respondent: Josephine Elizabeth Wijker
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 August 1993
Case Number
325/92
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division; Appeal Against Forfeiture and Costs Orders
Outcome
Appeal allowed; forfeiture and costs orders set aside, main claim granted with costs, counterclaim dismissed with costs.
Judges
Joubert, Eksteen, Van Coller
Legal Topics
Divorce Act Section 9, Forfeiture of Patrimonial Benefits, Community of Property, Judicial Discretion, Contribution to Joint Estate
Family and Children Divorce Act Section 9 Forfeiture of Patrimonial Benefits Community of Property Judicial Discretion Contribution to Joint Estate

Case Brief

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Parties

Jacob Harmen Wijker

Appellant

Josephine Elizabeth Wijker

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division; Appeal Against Forfeiture and Costs Orders

Legal Issues

  1. 1 Whether a forfeiture order in terms of section 9(1) of the Divorce Act 70 of 1979 should be granted against the appellant.
  2. 2 Whether substantial misconduct is a prerequisite for a forfeiture order under section 9(1).
  3. 3 Whether the appellant would be unduly benefited if a forfeiture order is not made.

Ratio Decidendi

The Supreme Court of Appeal held that the trial court misdirected itself by unfairly attributing blame for the breakdown of the marriage solely to the appellant and by applying an incorrect principle of fairness regarding the division of assets in a marriage in community of property. The court clarified that substantial misconduct is not a prerequisite for a forfeiture order under section 9(1) of the Divorce Act, and that the factors listed are not cumulative. The appellant's entitlement to share in the joint estate arises from the nature of community of property, and the respondent's refusal to return the shares was not justified. Both parties contributed to the breakdown of the...

Court Disposition

Appeal allowed; forfeiture and costs orders set aside, main claim granted with costs, counterclaim dismissed with costs.

Orders

  • The appeal is allowed with costs, including costs consequent on the employment of two counsel.
  • The order of the court a quo, save for the order of divorce, is set aside.