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Peters v Peters (18272/2007) [2008] ZAWCHC 309 (2 December 2008)

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[1] The applicant was married in community of property to the respondent. On 15 May 1996 the parties were divorced. The court order specified that ^lthe joint estate is divided". Even if the order had not done so_r division of course would have been the consequence, simpJy by operation of law (Gates v Gates 1940 NPD 361-363; Keyser v Kevser 1979(4) SA12 (T) at 15F; Maharai v Maharai 2002(2) SA648 (D) at 649H-I).

[2] Nearly 12 years later, the applicant has applied for a declaratory order sought (in its latest form) in these terms

"1. The respondent's pension interest (under pension number 612057 in the Cape Town Municipal Pension Fund) as at 15 May 1996 formed part of the parties' joint estate.

2. Upon the parties' divorce, half of the pension interest vested in the applicant.

3. The applicant is entitled to payment of half of the pension fund [already paid out to the respondentjas at 15 May 1996.

4. The applicant is granted leave to apply on these papers, duly supplemented, for an order directing the respondent to pay to the applicant an amount equivalent to half of the pension benefit (once the applicant has ascertained the Rand value of the pension benefit).

5. The respondent to pay the costs of this application.ⁿ

(The phrase which I have inserted into paragraph 3 above is to clarify the fact that the claim is directed sofely against the respondent and not the pension fund itself, in view of the fact that a payout of the pension interest occurred a number of years ago to the respondent).

[3] In argument the relief sought was slightly adjusted, in terms of the formulation that I have just outfined, without objection.

[4] The pension benefit in question, it is common cause, has been paid to the respondent, and no portion has been received by the applicant. The applicant seeks no relief against the pension fund itself. As it happens, the applicant notified the pension fund soon after the divorce - attaching the decree of divorce and a notice of intention to amend which, as J indicate below, in the circumstances was not itself moved, clarifying the fact that the claim to half of the joint estate specifically included the pension interest - but nothing turns on that now.

[5] The first question which arises for determination is whether (as the respondent contends) the fact that the present relief was not sought at the time the decree of divorce was granted bars the application.

[6] Section 7(7)(a) of the Divorce Act, 70 of 1979 ("the Act") provides:

"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 provisions of sub-sections (b) and (c), counsel agree, have no application in this matter).

[7] Section 7(8) provides further:

"(8) Notwithstanding the provisions of any other law or of the rules of any pension fund -

(a) The court granting a decree of divorce in respect of a member of such a fund, may make an order that-

i) any part of the pension interest of that member which, by virtue of sub-section (7) is due or assigned to the other party to the divorce action concerned, shaif be paid by that fund to that other party when any pension benefits accrue in respect of that member;

ii) The registrar of the Court in question forthwith notify the fund concerned that an endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that other party and that the administrator of the pension fund furnish proof of such endorsement to the Registrar, in writing, within one month of receipt of such notification. (emphasis supplied).

[8] Counsel for the respondent conceded (correctly, in each instance) three matters in the course of oral argument. The first is that the division of the joint estate constituted a "determination of the patrimonial benefits to which the parties ..., may be entitled", as contemplated by the introductory phrasing of section 7{7)(a). As already noted that "determination" happens in the case of a marriage in community of property ex lege; in any event, in the present case the court itself expressty so ordered.

[9] Counsel also correctly accepted that the deemed inclusion of the pension interest of the respondent at the time of divorce in the joint estate also arises by operation of law. This is because, at the time of divorce, ^Khls assets" (the language of the provision) necessarily here means the assets of the joint estate: under a joint estate (certain exceptions aside, which do not pertain in the present case), a person has no persona) patrimony. ("Pension interest", it is to be noted, is defined under the Act as meaning;

"the benefits to which that party as such a member would have been entitled in terms of the rules of that fund, if his membership of the fund would have been terminated on the date of the divorce on account of his resignation from his office").

[10] In the third place, it was accepted that the effect of the statutory device of a deeming provision is to establish that consequence in law, whether or not it is naturally so. In the present context, the deeming provision thus legtsEates for the ex lege inclusion of the pension interest in the joint estate. In short, in law it is so.

[11] I accordingly hold that the applicant, as at the date of divorce, became entitled by operation of law to a half share in the pension interest vesting in the joint estate. This is pursuant to s.7(7)(a). S.7(8)(a) - contemplated an order at the time of divorce against a pension fund - does not arise in this case; the order is sought only against the other erstwhile spouse, to whom a payout has occurred, not against the fund concerned.

[12] Given this conclusion, it is unnecessary to consider the applicant's reliance in particular detail on a prior agreement between the parties that the pension interest would indeed be divided in this way. Leaving aside the rather equivocal facts in this regard, advanced moreover in motion proceedings, it seems to me that an agreement between the parties (other than of course one recorded in, and hence part of, the court order) would be legally ineffective as against the terms of the order itself. The order would only be assailable in substance on narrow and radical grounds (Union Government v Schierhout 1925 AO 323), or be open to correction in its formulation in very restricted circumstances (Mostert N.O. v Old Mutual Life Assurance Co Limited 2002(1) SA82 (SCA) at 96 D-E) none of which are advanced here.

[13] Similar considerations apply to the respondent's rather faint converse attempts to suggest an ex post facto agreement by the parties to divide their assets in terms other than the strict division by value contemplated by the divorce order. It appears from the evidence in this regard that what took place between the parties was a pragmatic division - as is predictably the case - of the parties' modest physical possessions. As the applicant aptly describes this process in her replying affidavit:

"This was done on a very single 'rough and ready' and unscientific basis. Respondent and I simply divided up these items on the basis of convenience which we were prepared to accept was roughly fair in the circumstances, other than in respect of the motor vehicle and immovable property which respondent dealt with on his own, as dealt with below".

(She testifies in the latter respect that the parties' immovable property was in fact sold by the respondent, and she received no part of the proceeds).

[14] No case is made out of a waiver or abandonment by the applicant of her rights under the order.

[15] As already noted, on the peculiar facts of the present case the applicant does not seek to invoke section 7(8) of the Act, least of all - as I have noted - against the pension fund. Thus the considerations raised in Sempapalele v Sempapafele 2001(2) SA 306 (O) and in Maharaj v Maharaj 2002(2) SA 643 (D) regarding the need for that relief to be sought at the time of the decree of divorce itself, do not arise here. It is unnecessary to say anything further in relation to those cases and what they determined.

[16] Thus in the present case the pension interest question fell within the joint estate; the joint estate was divided by operation of law and, as it happens, by court order on divorce; and the respondent thereupon became entitled to it. The alleged agreement after the divorce I do not find sufficiently established; or, for the reasons I have given, legally relevant. Similarly the alleged agreement before divorce is, in my view, not adequately established and would also in any event legally ineffective against the terms of the order. No other valid defence has been raised by the respondent to the relief claimed by the applicant in this application. The suggestion that he has now spent the paid out pension interest is not a defence to the declaratory relief: in any event, the pension interest amounts to a separate fund, which in turn appears to have been applied for the acquisition of certain particular assets, apparently still substantially in esse. I accordingly grant an order in terms of the draft and as quoted earlier in this judgment, together with an order of costs.

GAUNTLETT, AJ