In the Mashola case (22/2022), the Supreme Court of Appeal (SCA) had to determine whether a partial forfeiture order should be imposed on the husband’s pension interest/benefit held by the Government Employee Pension Fund (GEPF) following their divorce. This article discusses the legal principles involved in the case and analyses the court’s decision.

Background and Evidence Presented:

During the trial, it was revealed that the husband had engaged in a long-standing extramarital affair, which had significant impacts on their marital estate. He made minimal financial contributions to the joint estate and transferred assets to his mistress. The wife had to resort to the maintenance court to compel her husband to contribute to the maintenance of their children.

Legal Principles Applicable:

The Divorce Act contains three key provisions relevant to this case. Sections 7(7) and 7(8) address the entitlement of spouses to a half share in each other’s pension interests, while section 9(1) deals with the forfeiture of benefits. In the Wijker v Wijker case, the Appellate Division clarified the legal principles relating to section 9(1), establishing two key steps for the court to consider.

Analysis of the Decision:

The full court dismissed Mrs Mashola’s appeal, arguing that she had condoned her husband’s extramarital affair for nine years, which undermined her claim for a forfeiture order. However, the SCA found that condonation was not raised in the pleadings or during the trial before the High Court. The SCA emphasized that courts should not pronounce on claims or defences not presented in the pleadings, highlighting the misdirection of the full court in this case.

Furthermore, the full court failed to apply the two-pronged approach outlined in the Wijker case. The SCA held that the wife did not condone the extramarital relationship on every interpretation of the facts. The court considered various factors, including the humiliation caused by the affair being conducted publicly, the depletion of the joint estate, the husband’s financial support of his mistress at the expense of his family, and Mrs Mashola’s sole dependence on her salary.

This judgment underscores the importance of courts adhering to the principle of adjudicating only on issues raised in the pleadings or during the trial. Pronouncing on claims not presented by the litigants constitutes an impermissible misdirection. In this case, the SCA upheld the appeal, finding that Mr. Mashola’s substantial misconduct and Mrs. Mashola’s direct financial contributions to the joint estate satisfied the requirements for a partial forfeiture order under section 9(1) of the Divorce Act.