In the case between Mr Tsietsi Philemon Mashola and Mrs Makwena Delina Mashola, the Supreme Court of Appeal ("SCA") was tasked with determining whether, following their divorce, Mr Mashola should be subjected to a partial forfeiture order in respect of Mrs Mashola's pension interest/benefit held by the Government Employee Pension Fund ("GEPF").
During the trial it emerged that Mr Mashola had engaged in a long-standing extramarital affair, which had significant impacts on their marital estate, including minimal financial contributions from Mr Mashola and asset transfers to his mistress, Ms Mapula Eva Leshiba.
Evidence presented before the trial
At trial, it was established that Mr Mashola's prolonged extramarital affair with Ms Leshiba lead to the breakdown of the marriage. During this time, Mr Mashola made very minimal contributions to the joint estate and used assets from the joint estate for Ms Leshiba's businesses where he also had shares. Mrs Mashola had to approach the maintenance court to compel Mr Mashola to contribute to the maintenance of their children.
It was further alleged that Ms Leshiba and Mr Mashola had a child together which was 5 years old when the divorce was instituted. Furthermore, it was alleged that the affair was conducted in the public domain. When Mrs Mashola became aware of the existence affair, she sought professional counselling with her husband. However, because Mr Mashola insisted on continuing with the affair, Mrs Mashola asserted that they can continue with the marriage, but she will deprive him of conjugal rights because she feared contracting illnesses.
Legal principle applicable
There are three key applicable provisions in the Divorce Act, 1979
The first two are sections 7(7) and 7(8) which relate to the spouse's entitlement to a half share in the pension interest of the other spouse:
"7(a) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled; the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets"
The third one is section 9(1), which deals with the forfeiture of the spouse's benefit:
"When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefitted".
In the Wijker v Wijker case, the then Appellate Division clarified the legal principles in relation to the application of section 9(1). The following principles were laid down:
- "The party seeking an order for forfeiture of benefits does not have to prove the existence of all three factors in section 9(1) cumulatively. The court needs to ask itself whether one party will be unduly benefitted if an order of forfeiture was not made, and in order to answer that question, regard should be had to the factors mentioned in section 9(1)
- In dealing with section 9(1), [the first step is to determine whether or not the party against whom the order is sought will in fact be benefited. That will be purely a factual issue.]. Once that has been established the trial court must determine, having regard to the factors mentioned in the section, whether or not that party will in relation to the other be unduly benefited if a forfeiture order is not made. Although the second determination is a value judgment, it is made by the trial court after having considered the facts falling within the compass of the three factors mentioned in the section."
Analysis
The full court dismissed Mrs Mashola's appeal and reasoned that she condoned the extramarital affair for nine years and this did not support her claim for an order for forfeiture of the benefit.
The SCA found that it was common cause that condonation of the extramarital affair was not raised in the pleadings or during the trial before the High Court. The full court thus raised this of their own accord. The SCA argued:
"The full court impermissibly canvassed a different case than that which was before the High Court. It acted outside the context of the appeal. It was impermissible as it had an adverse effect on the rights of Mrs Mashola and the case made out before the High Court
[33] It is trite that a court should not pronounce upon a claim or defence not raised in the pleadings. In Member of the Executive Council, Department of Education, Eastern Cape v Komani School and Office Suppliers CC t/a Komani Stationers, the court emphasised, with reference to Fischer, that:' One of the enduring tenets of judicial adjudication is that courts are enjoined to decide only the issues placed before them by the litigants. And that it is not open to court to change the factual issues presented by the parties or introduce new issues.''
The SCA argued that this was a misdirection on the part of the full court. Furthermore, the full court failed to appreciate the principles laid down in the Wijker case since it failed to apply the two-pronged approach that was contemplated in the judgment.
The SCA held that on every possible interpretation of the facts, one cannot conclude that Mrs Mashola had condoned the extramarital relationship with Ms Leshiba.
On the question of whether the Mr Mashola will be unduly benefitted, the court considered the following facts:
Mr Mashola had an extramarital affair for nine years which was humiliating to Mrs Mashola as it was done in a public domain;
there was nothing left in the joint estate when Mr Mashola filed for divorce save for Mrs Mashola's pension interest and a few assets;
- Mr Mashola bankrolled Ms Leshiba at the expense of his family in that he set up various business interests with her;
- Mr Mashola channelled assets of the joint estate to set up business enterprises for Ms Leshiba;
- Mrs Mashola had to approach the maintenance court for the education of her children, where she also learned for the first time about the existence of other children of Mr Mashola born out of wedlock;
- Mr Mashola made very minimal contributions for the benefit of the joint estate, though he had established several businesses with Ms Leshiba;
- Mrs Mashola solely depended on her salary as an educator; and
- there is no evidence of Mr Mashola making contributions towards Mrs Mashola's pension.
Therefore, the evidence illustrates that Mrs Mashola made direct financial contributions to the joint estate, as opposed to Mr Mashola who used almost all his financial resources for the benefit of Ms Leshiba. Mr Mashola's outside interests far more exceeded what he contributed to the joint estate.
The SCA concluded that the above facts show a substantial misconduct on the part of Mr Mashola and Mrs Mashola satisfied the requirements of section 9(1), particularly that Mr Mashola would be unduly benefited if the order for partial forfeiture is not granted. Therefore, the appeal against the full court was upheld with costs and Mrs Mashola's counterclaim succeeded.
Conclusion
This judgment emphasised the trite principle that the court should not pronounce upon a claim that has not been raised in pleadings or during trial. The law requires courts to only adjudicate upon issues that are placed before them by the litigants. A failure to follow this principle constitutes a misdirection on the part of the court and is not permissible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
