Section 9(1) of the Divorce Act 70 of 1979 allows a court granting a divorce to order the forfeiture of patrimonial benefits of the marriage by one spouse, wholly or in part, if that spouse would otherwise be unduly benefited. This article surveys the case law from the first judgments under the Act to the end of October 2026, including the decisions of the Appellate Division and the Supreme Court of Appeal in Wijker, Old Mutual v Swemmer, Botha, BS v PS, Monyepao, I M v A M and Mashola. It explains the two-stage enquiry, the limits of what may be forfeited, how the courts have applied each of the three statutory factors, the special position of pension interests, and the pleading and evidential requirements on which most claims succeed or fail. It closes with the points of tension in the High Court judgments and practical guidance for practitioners.
Introduction
Forfeiture under s 9(1) of the Divorce Act 70 of 1979 remains an exceptional remedy, and the judgments divide fairly evenly between orders granted and claims refused. The cases surveyed here run from the first decisions under the 1979 Act in the early 1980s, through the Appellate Division in Wijker v Wijker in 1993, to a two-judge Pretoria appeal delivered on 28 October 2026. They come from the Supreme Court of Appeal and from the High Courts in Gauteng, the Western Cape, the Eastern Cape, KwaZulu-Natal, the Free State and the North West.
This article works through those judgments thematically. The decisions of the Appellate Division and the Supreme Court of Appeal bind every High Court: Wijker v Wijker 1993 (4) SA 720 (A), Old Mutual Life Assurance Co (SA) Ltd and Another v Swemmer 2004 (5) SA 373 (SCA); [2004] 4 BPLR 5581 (SCA), Botha v Botha [2006] ZASCA 6, BS v PS [2018] ZASCA 37; 2018 (4) SA 400 (SCA), Monyepao v Ledwaba and Others [2020] JOL 47353 (SCA), I M v A M [2023] ZASCA 33 and Mashola v Mashola [2023] ZASCA 75. The remainder are High Court judgments. A number of them are appeals from the Regional Court heard by two judges, and a few are decisions of three judges. A High Court judgment from another division is persuasive only, and that is how the provincial decisions below should be read in the Western Cape.
Every proposition below is taken from the judgment cited and, where the judgment has paragraph numbers, pinned to the paragraph. The older law reports have no paragraph numbers and are cited by page. A few older authorities, among them Engelbrecht v Engelbrecht 1989 (1) SA 597 (C), are referred to as they are quoted or described in later judgments, and the paragraph of the quoting judgment is given each time.
Forfeiture of patrimonial benefits: the statutory text
Section 9(1) empowers a court granting a decree of divorce on the ground of irretrievable breakdown to order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, wholly or in part, if it is satisfied that without the order one party will be unduly benefited in relation to the other. The court reaches that conclusion “having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties”. The full text is quoted in Botha and in I M v A M at para 23.
The section was amended with effect from 14 May 2024 by the Divorce Amendment Act 1 of 2024, which inserted the words “including a Muslim marriage” after “irretrievable break-down of a marriage”. N J v O J [2026] ZAKZDHC 63 records the amendment and holds that this is the only difference between the two versions (paras 186 to 187). K P S v M D S [2024] ZAGPPHC 2385 applied the unamended text to an action that predated the amendment (para 16). The amended text is quoted and applied without comment in Phokobye v Nkhumishe (M.A.P v F.M.A.N) [2024] ZAGPPHC 858; [2024] JOL 66423 (GP), PP v PP [2025] ZAGPPHC 900; [2025] JOL 71680 (GP) at para 25 and BND v KCD [2026] JOL 78731 (GP) at para 24. Nothing in the cases suggests that the amendment changed the test.
Section 9(2) is the one absolute bar: no forfeiture order may be made against a defendant where the divorce is granted on the ground of mental illness or continuous unconsciousness. The subsection is quoted in G V v M V [2023] ZAGPPHC 1506 at para 34 and in M M v N M [2022] ZAGPPHC 1297 at para 5.
The common-law background explains why the remedy is framed as it is. K P S v M D S traces the older rule under which a spouse divorced for adultery forfeited the benefits of the marriage and the court had no discretion to withhold the order if the innocent spouse claimed it (paras 16 to 19). The Divorce Act changed that: the claimant must still allege and prove the grounds, but the decision now rests in the court’s discretion (para 21). B G N v N P N [2025] ZAECGHC 139 adopts a summary of principles, in the passage following para 40, that makes the same point from the other side: the 1979 Act set its face against guilt, the rejected element of guilt cannot be smuggled back in through s 9, and the purpose of a forfeiture order is not to punish.
The early judgments under the Act say the same. Watt v Watt and Another 1984 (2) SA 455 (W) adopts a passage from Lee and Honoré recording that, before 1979, the power was not discretionary, that the court had to order forfeiture against the guilty party if the innocent party asked for it, and that because the old law knew no degrees of guilt there could be no partial forfeiture. Kriegler J described it in Klerck v Klerck 1991 (1) SA 265 (W) as an all-or-nothing regime (at 268). Binda v Binda 1993 (2) SA 123 (W) explains why that could not survive the introduction of irretrievable breakdown: the guilty spouse can now sue for divorce, and it would not be sound policy to give the successful party the matrimonial assets by the accident of having been the one to take action. Singh v Singh 1983 (1) SA 781 (C) adds the limit that has been repeated ever since: the courts now have a discretion they did not have before, “but they cannot order a redistribution of capital and property”, and the power is confined to patrimonial benefits.
Wijker and Botha: three factors, not cumulative, and nothing else
Two appellate decisions fix the framework. Wijker holds that the three factors need not all be present and that fairness is not the test. Botha holds that the three factors are a closed list.
The early conflict. In Matyila v Matyila 1987 (3) SA 230 (W) (Van Zyl J, O’Donovan AJ concurring) the court held that all three factors, and undue benefit, had to be alleged and proved. It also held that substantial misconduct is a separate factor that cannot simply be inferred from the grounds of breakdown, so that adultery which is enough to show breakdown “is not necessarily ‘substantial misconduct'”. Kriegler J took the opposite view of the first point in Klerck: the primary question is whether there will be undue benefit, the three factors are categories of considerations to be weighed in answering it, and substantial misconduct is not a precondition (at 267 to 268). In Binda a two-judge court (Leveson J, Myburgh J concurring) declined to follow Matyila as clearly wrong. The Central Divorce Court had found that the husband would be unduly benefited, because the bulk of the assets had been the wife’s before the marriage, but had refused forfeiture because he was not guilty of substantial misconduct. The appeal succeeded and a forfeiture order was substituted: each factor must be given due weight, but the factors are not cumulative.
Wijker. The Appellate Division settled the point in Wijker v Wijker 1993 (4) SA 720 (A) (Van Coller AJA, Joubert JA and Eksteen JA concurring). The marriage had lasted about 35 years. The wife had built a successful estate agency company, and the trial court ordered the husband to forfeit the shares and the assets bought from the company’s income, mainly because it thought it unfair that he should share in a business to which he had contributed little. The appeal succeeded and the counterclaim for forfeiture was dismissed. Five holdings matter. First, the enquiry has two steps: whether the party will in fact be benefited is “purely a factual issue”, and whether the benefit is undue is a value judgment made on the facts falling within the three factors (at 727D to G). Second, the finding of undue benefit is not the exercise of a discretion in the narrow sense, so an appeal court may differ from the trial court on the merits (at 728A to C). Third, approving Klerck and Binda, the three factors need not all be present and proof of substantial misconduct is not a prerequisite; Binda had “correctly held that the decision in Matyila v Matyila (supra) was clearly wrong” (at 729). Fourth, a party’s misconduct may be weighed as a circumstance giving rise to the breakdown, while substantial misconduct “may include conduct which has nothing to do with the breakdown of a marriage”; but “too much importance should, however, not be attached to misconduct which is not of a serious nature” (at 729 to 730). Fifth, fairness is not the test. That a spouse shares in a business built by the other is a consequence of the marriage in community of property, and “there is no provision in the section for the application of such a principle” (at 731). On the facts the husband had been the sole breadwinner for almost 20 years, the wife’s conduct on the shares dispute was “not beyond reproach”, and no substantial misconduct had been proved against him (at 731 to 732).
Botha. Botha v Botha [2006] ZASCA 6 is the binding authority that the three factors in s 9(1) are a closed list. The parties were married out of community of property with the accrual system. The husband had taken out two policies on his father’s life, each of which paid R500 120, and the trial court ordered the wife to forfeit half of the proceeds of the first policy and all of the second. It did so although it found no substantial misconduct, treated the ten-year marriage as a more or less neutral factor, and identified the wife’s estrangement from her husband’s family as a circumstance in the breakdown. What tipped the scale for the trial judge was the motive for taking out the policies, which was to benefit the husband alone.
Van Heerden JA, for a unanimous court, upheld the wife’s appeal and dismissed the forfeiture counterclaim. The key passage is para 8: the three factors “fall within a relatively narrow ambit”, and “conspicuously absent from s 9 is a catch-all phrase, permitting the court, in addition to the factors listed, to have regard to ‘any other factor'”. The court contrasted s 7(2) on maintenance and s 7(5) on redistribution, both of which expressly allow any other factor to be weighed. It concluded that a trial court “may therefore not have regard to any factors other than those listed in s 9(1)”. Because the trial judge had relied on the motivation behind the policies, he had not exercised his value judgment within the section and the order could not stand.
Botha also restates Wijker on two points at para 6. Proof of substantial misconduct is not an essential requirement, because the legislature never intended the three factors to be considered cumulatively. And the enquiry has two steps, the first factual and the second a value judgment. In the following paragraph the court repeats the warning in Wijker that fairness is not the test: that one spouse shares in a business built by the other is simply a consequence of community of property, and “there is no provision in the section for the application of such a principle”.
The later cases apply Botha consistently on this point. K M v J M [2023] ZAGPPHC 2487 holds that nothing outside the three factors may inform the value judgment (para 10). I S M v R Q M M [2024] ZAGPPHC 2410 speaks of “three factors, and only three factors” (para 8) and attributes the exclusion of fairness to the absence of the words “any other factor” (para 9(g)). M M NO v N L [2022] ZAGPPHC 1329 describes them as the sole factors (para 14).
The SCA restated both decisions in Mashola v Mashola [2023] ZASCA 75: the party seeking forfeiture need not prove all three factors cumulatively, fairness has no place in the value judgment, and only the factors in s 9(1) may be considered (paras 28 to 29). Later High Court judgments follow suit. MR v JR [2015] JOL 34218 (GNP) quotes the “catch-all phrase” passage from Botha and contrasts the wording of s 7(2) (paras 44 to 45). BOO v NNO [2012] JOL 29395 (GNP) rejected an argument built on the size of the parties’ contributions and on fairness: “The Court is not called upon to decide what is fair and equitable in the circumstances” (para 59). MBM v MG [2025] ZAGPJHC 337; [2025] JOL 71972 (GJ) held that there is nothing to be considered “except the three factors” (para 19). In PP v PP Neukircher J noted that the claimant had based her claim “on a principle of fairness and equity, rather than placing it squarely within the four corners of s9” (para 28).
Two applications show the rule doing real work. In T S v M L S [2024] ZAGPPHC 2147 the wife sought leave to appeal on the ground that the trial court had not appreciated the lasting effects of a 2006 assault that left her hand partly paralysed. Kubushi J refused leave: the assault had been found not to be conduct that gave rise to the breakdown, and to weigh its sequelae as a self-standing consideration went against the grain of Botha (para 6). In MNB v MMP [2022] ZAGPJHC 422 the wife asked to keep the house because it was conveniently close to the children’s school, and the court found no merit in that as a ground for forfeiture (para 39).
The two-stage enquiry and the onus
The court asks first, as a question of fact, whether the party against whom forfeiture is sought will be benefited if no order is made, and only then, as a value judgment confined to the three factors, whether that benefit is undue. This is the Wijker formulation as restated in Botha at para 6, and almost every judgment quotes it. Recent examples are C W M v J N M [2026] ZAGPPHC 1045 at para 14, O E M v D S M [2025] ZAGPPHC 2449 at para 13 and V T v N K [2024] ZAWCHC 366 at para 43.
The onus. The party claiming forfeiture bears the onus on both stages. I M v A M settles this for pension interests in particular. The wife had argued that the husband, as the spouse claiming half of her pension interest, should bear the onus. The SCA disagreed: because s 7(7) deems the pension interest to be part of the joint estate, “it is therefore, the party seeking forfeiture thereof that must prove that the other party is not entitled to the portion of the pension interest” (para 22). The same rule is stated in V G v T M [2024] ZAECMHC 152 at para 11, A M v J M [2024] ZAGPPHC 1563 at para 3, MNB v MMP at para 24 and N M M v N M S [2022] ZAGPPHC 1741 at para 10. A practical consequence is that the claimant usually has the duty to begin (N M M para 10; V T v N K para 6).
The older cases put it the same way. In Swanepoel v Swanepoel [1996] 3 All SA 440 (SE) Zietsman JP held that the claimant must prove that the other spouse will be patrimonially benefited if no order is made and that the benefit will be undue; if both are proved, the court has a discretion to order forfeiture wholly or in part. RPK v MAK [2025] ZAGPPHC 301; [2025] JOL 70998 (GP) states the onus in the same terms (para 26), and in PP v PP it was common cause that the claimant bore both the onus and the duty to begin (para 12).
Stage one: the benefit must be proved. Several courts, relying on Engelbrecht, hold that the claimant must establish the nature and extent of the benefit before the three factors are reached at all. R M v M M [2023] ZAECGHC 149 puts it this way: unless the nature and extent of the benefit are established the court cannot determine whether it is undue, and the onus of proving them is on the party alleging the undue benefit (para 15). The trial court in that case had gone straight to the second stage, which was a misdirection (paras 16 to 17). P Z v B Z [2024] ZAGPJHC 2106 describes the same sequence at paras 15 to 16, as does V G v T M at para 14.
PP v PP is now the clearest example of a claim failing at the first stage. The wife sought forfeiture of the husband’s right to share in her pension interest, limited to R440 000, because he had received a pension payout of R1 223 582,91 and, she said, used it for himself. She did not plead or prove where her own pension interest was held or what it was worth (para 18). Neukircher J quoted the passage from Engelbrecht in the original Afrikaans, to the effect that unless the nature and extent of the benefit are proved the court cannot decide whether it is undue, and held that because the wife had not pleaded and proved the nature and value of the benefit the court could not move to the second leg at all (para 36). Absolution from the instance was granted (para 39). RPK v MAK is to the same effect: the claimant must prove the nature and extent of the benefit, which involves proving the value of the property at the date of the marriage (paras 26 to 27), and the wife had given no values other than that of the pension interest (para 30). In NP v MP [2017] JOL 39077 (FB) a general claim for forfeiture failed on appeal because the husband had not adduced adequate evidence of any benefit to the wife.
In a marriage in community of property the first stage is often answered in a sentence, because a spouse who takes half of an asset to which the other contributed more will be benefited. L M v S M [2023] ZAGPPHC 1601 (para 19), M M v N M (para 6) and C W M v J N M (para 15) all dispose of it that way. The cases on quantification discussed under pleading, evidence and procedure below show that this short route is not always open.
Stage two: when is a benefit undue? The cases offer three descriptions, each taken from earlier authority. The first is the dictionary sense adopted by Kollapen J in the judgment cited as KT v MR and reported in the All South African Law Reports as Tlou v Ralebipi [2016] 4 All SA 251 (GP): unwarranted, or inappropriate because excessive or disproportionate (I S M v R Q M M para 9(d); N M M v N M S para 23). The second is the Engelbrecht obiter that a benefit is undue if it is disturbingly unfair (R M v M M para 62; B G N v N P N, in the summary of principles following para 40). The third comes from Z v Z, quoted in V G v T M at para 18: undue benefit is a relative term, and “benefiting from one spouse’s sweat … would not necessarily amount to undue benefit”.
What all three have in common is that a greater contribution by the claimant is not enough. Engelbrecht, as quoted in V G v T M at para 7 and P Z v B Z at para 14, treats unequal contribution as the inevitable consequence of the chosen regime, about which the greater contributor cannot complain unless the benefit is undue. L M v S M (para 18) and G V v M V (para 37) add that forfeiture cannot be granted merely because one spouse contributed more.
Other High Court judgments add two refinements. The first is that contribution is not only financial. In NP v MP the husband’s main complaint was that his wife had made no meaningful contribution to the joint estate; the appeal court said that he “had regard solely to financial contributions and ignored the substantial contribution made by the respondent over 20 years of marriage in terms of raising children and housekeeping” (para 15). Bam J made the same point in EM v SM [2026] ZAGPPHC 8; [2026] JOL 70474 (GP), accepting that a mother who stayed at home was responsible for the upkeep of the family home and for supporting the husband and children (para 11). The SCA went a step further in BS v PS: the husband could afford his bond instalments and his pension contributions only because the wife carried a far greater share of the household expenses, so it was wrong to say that she had contributed less to the growth of his estate (para 14). The second refinement is the one stated in MPM v GPM [2022] JOL 59529 (GP) at para 25, summarising Engelbrecht: unless the spouses make precisely equal contributions, the one who contributed less will always be benefited on division, and that is the inevitable consequence of the regime they chose.
Two 2020 judgments rest on the same reasoning. In Lesoro v Lesoro [2020] ZAFSHC 44; [2020] JOL 46807 (FB) the husband, a retired police officer, sought forfeiture of his wife’s share of his pension interest on the ground that she had not contributed to the estate. Chesiwe J referred to Bezuidenhout v Bezuidenhout for the proposition that the role of housewife, mother and homemaker should not be undervalued because it cannot be measured in money (para 31), noted that the wife had given up jobs to keep the peace in the marriage (para 32), and held that it could never have been the legislature’s intention that a wife who had contributed faithfully for 25 years should forfeit any benefit of the joint estate, wholly or in part (para 34). The two-judge appeal court in Rampa v Rampa [2020] JOL 48722 (GJ) (Adams J, Majavu AJ concurring) applied the same passage from Bezuidenhout (para 41) and added that the fact that a spouse did not contribute financially to the increased value of the assets does not mean that she would be unduly benefited (para 40).
The discretion. Once the court finds an undue benefit, the remaining discretion is narrow. Wijker, as quoted in V G v T M at para 8 and in V S v S S [2018] ZAGPJHC 617 at para 15, found it “difficult to visualize circumstances where a court would then decide not to grant a forfeiture order”. I S M v R Q M M repeats the point at para 9(e).
What is a “benefit”? The limits of forfeiture
A spouse forfeits only the benefit derived from the marriage, never what he or she brought into it. This is the most frequently misunderstood feature of the remedy, and several judgments correct trial courts or litigants on it.
K P S v M D S contains the fullest treatment. Mabuse J collects the older authorities to the effect that what a defendant forfeits “is not his share of the common property but only the pecuniary benefits that he would otherwise have derived from the marriage”, and that the guilty spouse is not to be “sent forth into the world as the beggar” (paras 29 to 33). The court concludes that s 9(1) does not empower a court to award the guilty party’s one-half share of the joint estate to the claimant: “It is the extent to which the guilty party is enriched that is ‘the benefit’ that he or she may be forfeited” (para 35). The judgment illustrates this with an example drawn from a commentator: a spouse who brings R100 000 into a joint estate of R1 100 000 has a half share of R550 000, and the benefit open to forfeiture is the R450 000 excess over that spouse’s own contribution.
L O v J S O [2024] ZAECGHC 239 applies the rule on appeal. The Regional Court had granted a general forfeiture order against a wife after a marriage in which the consortium lasted four months, and its reasoning suggested that she had lost her rights in an RDP house. Potgieter J held that it is trite that spouses married in community cannot forfeit assets they brought into the marriage, and that the order could not deprive the wife of her co-ownership of the house (para 11). The order itself was left standing because an appeal lies against the order and not the reasons, but its effect was confined to her interest in movables worth about R16 000 to which she had not contributed (para 12).
K M v J M reaches the same result by a different route. The wife had been ordered to forfeit her share in a house that, on her version, both parties had bought and bonded before the marriage. Motha J held that one cannot forfeit property one brought into the marriage, and that the benefit is the excess of the other party’s contribution over one’s own (para 14). Because the trial court had not established when and by whom the property was acquired, the matter was remitted for evidence on that narrow issue (paras 12 to 13 and 16).
M M NO v N L states the corollary: the respondent “was entitled as a matter of law to what he had contributed to the joint estate at the very least”, so that any forfeiture order could only affect his half share to the extent that it exceeded his contribution (para 24).
The same rule appears throughout the case law. Human v Human [1999] JOL 4959 (E) explains the effect of a general order: the spouse against whom it is made receives back what he or she contributed, the court has no power to order that spouse to forfeit any part of his or her own lesser contribution, and the order merely prevents that spouse from drawing a benefit from the other’s greater contribution. Moodley v Moodley [2008] JOL 22279 (D) quotes the older statement that forfeiture “is really an order for division plus an order that the defendant is not to share in any excess that the plaintiff may have contributed”, and holds that the claimant “must prove some kind of contribution which exceeds the contribution of the other party towards the joint estate” (para 11). RPK v MAK repeats the point at para 29. The order in Singh shows the principle at work as early as 1982: the wife was ordered to forfeit the benefits of the marriage in community, and the husband was ordered to pay her 20 per cent of the value of the house and furniture, “being her estimated contribution to the joint estate”. Koza v Koza 1982 (3) SA 462 (T) states the other side of it: where one spouse has contributed more than the other, the benefits forfeited may exceed half of the common property.
The converse situation is where the claimant brought the asset in. There a forfeiture order restores to the claimant what the other spouse would have gained through the marriage alone. In M T v M M [2022] ZAGPJHC 44 a two-judge appeal court upheld an order that the husband forfeit his share in immovable properties the wife had financed before the marriage. In L M v S M the house had been bought by the wife two years before the marriage and paid off entirely by her (para 21), and the husband was ordered to forfeit it.
Three further points on the scope of the remedy emerge. First, it is not a redistribution power. The principles adopted in B G N v N P N after para 40 record that the order is confined to patrimonial benefits and that s 9(1) does not permit a redistribution of capital and property. MNB v MMP adds that s 9(1) does not give the greater contributor an opportunity to claw back the difference (para 28). Second, a complaint that a spouse dealt with joint assets without consent belongs under s 15(9) of the Matrimonial Property Act 88 of 1984, not s 9(1), and must be pleaded as such (N M M v N M S para 28). Third, the remedy is not confined to marriages in community of property, as the discussion of forfeiture outside community of property below shows.
What counts as a patrimonial benefit. Three older judgments deal with assets at the margin. In Persad v Persad and Another 1989 (4) SA 685 (D) Didcott J held that the tenancy of a house let by a local authority was a patrimonial benefit of the marriage and could be forfeited. It had some measurable value to the joint estate, and the wife’s payment of the rent for twelve years had preserved it; payments that preserve an asset of the joint estate are not to be distinguished from payments that acquire one. Matyila holds that s 9(1) operates only if there are patrimonial benefits in existence when the action is instituted. And in Old Mutual v Swemmer the SCA held that, since s 7(7)(a) was enacted, the only pension asset that counts in determining the patrimonial benefits is the “pension interest” as defined; any other right or interest of the member in benefits that have not yet accrued is not an asset for this purpose (para 19). The divorce order in that case, which in the guise of a partial forfeiture order purported to award the wife sole ownership of the husband’s retirement annuities (para 21), conflicted with ss 7(7) and 7(8) and could not be enforced against the funds. The court’s conclusion, as quoted in MWS v NSS and Another [2020] ZANWHC 36; 2021 (6) SA 201 (NWM) at para 13, is that such other rights or interests are not assets in the member’s estate “and thus cannot be subject to a forfeiture order in favour of the other spouse” (para 22).
The first factor: duration of the marriage
Duration can justify forfeiture on its own where the marriage was very short, but a long marriage does not prevent forfeiture where the other factors are strong. The cases divide on how duration is to be measured.
Short marriages. The clearest example is V S v S S. The parties lived together as a married couple for about eight months (para 14). Mia AJ found that both had contributed to the breakdown and that no substantial misconduct could be attributed to either (para 20), so that “the short duration of the marriage is thus the only factor which informs my decision” (para 21). That was enough to forfeit a contractual payment of R2 million and lifelong medical aid. M T v M M upheld forfeiture after a marriage of about five years on the footing that one factor, such as short duration, suffices and that the shorter the marriage the more likely an order becomes. In M M v N M the parties married in January 2016 and stopped cohabiting in November 2016 (para 38); the wife was held to be unduly benefited by a half share of the pension interest of a husband who had been with his employer since about 1981 (para 43).
There are earlier examples of duration carrying the claim. In Swanepoel the wife issued summons four years and three months after the wedding. Zietsman JP found no substantial misconduct on either side and that neither spouse was to blame for the breakdown, but held that in view of the short duration of the marriage the wife would be unduly benefited. The order let each party keep the assets in his or her possession, required the husband to pay the wife R18 000, and otherwise declared the benefits forfeited. In Tlou v Ralebipi the marriage was concluded in May 2011, the husband had built up a substantial estate mostly before the marriage, and the wife had sold her own home and kept the proceeds. Kollapen J held that the longer the marriage the more likely it is that the benefit will be due and proportionate, and the shorter the marriage the more likely that it will be undue and disproportionate. The wife was ordered to forfeit all the patrimonial benefits of the marriage except those arising from the marital home, in which she kept 50% of the net value (para 25). In Malatji v Malatji [2005] JOL 13638 (T) the wife had left about 16 months after the wedding and forfeiture was granted, although the reasoning there turned largely on what each spouse had brought into the marriage and on their respective employment, considerations that would now have to be fitted within the three factors.
Neukircher J was careful in M M v N M to say that brevity is not decisive: “there is no hard-and-fast rule to be applied” and each case turns on its facts (paras 41 to 42). V T v N K, a recent Western Cape judgment, makes the same point in practice. The husband claimed a marriage of five months, the court measured four years and four months from marriage to summons (para 52), and the outcome was that each party kept his or her own pension while the immovable property stayed in the joint estate (paras 65 and 70).
Short marriages have also been refused forfeiture. In Moss v Moss [2005] JOL 15786 (E) the parties had lived together for about three years. Maqubela AJ held that duration “is more important in cases wherein one party had the bulk of the assets at the time of the marriage”, which was not the case there (para 16), and dismissed the claim. In MBM v MG a customary marriage that had lasted less than five years did not justify forfeiture of the wife’s provident fund interest (paras 19 and 23). In MCLN v VLM [2025] JOL 71721 (GP) the husband relied on a marriage of seven months; Manamela AJ observed that the legislature has not said that a short or a long marriage should satisfy the court one way or the other (para 106), found no evidence of the value of the assets or of the benefit (para 100), and dismissed the counterclaim (para 115). Marriages of middling length tend to be treated as neutral: 12 years in Hodgkinson v Hodgkinson [2010] JOL 26261 (KZP) (para 42), nine years of cohabitation in EM v SM (para 11), and in MR v JR a marriage of 15 years “cannot be said to be so ‘short’ justifying forfeiture” (para 33).
Four further judgments fill out the picture. In Venter v Venter [2020] JOL 47783 (GP) the parties married in October 2015 and the wife counterclaimed for forfeiture in March 2017. Maumela J held that the relatively short period over which the marriage subsisted is not a reason to grant forfeiture (para 37), and that the husband’s failure to contribute to the wife’s pension fund or to the bond did not mean that he would be unduly enriched (para 38). The only forfeiture ordered was of his share in her pension fund, which he had tendered (para 41). In PTT v BGT [2020] JOL 46515 (FB) the marriage had lasted about seven years, but the wife had begun to build up a pension interest only five months before the husband left the common home. Murray AJ held that he would be unduly benefited “with reference to that specific asset” and ordered him to forfeit his share of it (paras 110 to 111), while accepting that fairness and equity play no role (para 109). The case measures duration against the asset and not only against the marriage. In CTM v IAM [2024] JOL 65251 (GJ) the parties married in May 2018 and lived together for a matter of weeks or, on the husband’s version, months. Muravate AJ relied on the “short de facto duration of the marriage” and on the husband’s failure to contribute anything to the household, and ordered him to forfeit in full his share of the wife’s GEPF pension interest (paras 20, 29 and 30).
Proportionality. The idea linking these cases comes from KT v MR, which M M NO v N L summarises in a footnote to para 15: duration is a fault-neutral factor that goes to proportionality, so that the longer the marriage the more likely the benefit is due. I S M v R Q M M quotes the passage in which Kollapen J accepted that, although fairness and equity are excluded, “considerations of what may be proportionate may well be valid and appropriate” when regard is had to duration (para 9(d)).
Long marriages. A long marriage weighs against forfeiture. R M v M M held that a marriage of 22, 27 or 28 years, depending on the end date chosen, “militates against the granting of an order for forfeiture” (paras 29 to 30). In N M M v N M S a marriage from 2004 to 2020 was one of long duration and “not a ground which could justify a forfeiture order” (para 34). The SCA in I M v A M described 23 years as a long period (para 25), and T S v M L S [2024] ZAGPPHC 1703 relied on a marriage of about 23 years in refusing forfeiture (para 15).
The two older appellate decisions point the same way. Wijker refused forfeiture after about 35 years (at 731). In BS v PS the SCA set aside an order that the wife forfeit 80% of her right to share in the accrual of her husband’s estate, holding that no forfeiture order should have been granted “when sufficient weight is also accorded to the duration of the marriage of approximately 28 years” (para 15).
So do three High Court judgments from 2020 and 2024. In Lesoro a marriage of 25 years was decisive against forfeiture (paras 25 and 34). In Rampa the parties had lived together for 22 years, had been married for 28 years when summons was issued and for 33 years at divorce; “howsoever one views this consideration”, it favoured the wife and “militates against a forfeiture order” (para 36). In NEM v RLDM [2024] ZAFSHC 28; [2024] JOL 62835 (FB) the parties had been married for 25 years when the husband left, and he had carried the household for the first 15 of them (para 19).
But length is not a shield. Forfeiture was ordered after 29 years in S B K v P T K [2025] ZAGPPHC 2338, where Retief J held that duration “must be seen in context” and that what happened during those years is relevant (para 32). It was ordered after nearly 26 years in B G N v N P N (para 43), after 17 years in O E M v D S M (para 11), and in P Z v B Z after a marriage of 27 years on the shortest count (para 19).
Mashola is now the leading example. The parties married in 1985 and the husband issued summons in 2016. The SCA nevertheless ordered him to forfeit his share of the wife’s GEPF pension interest, and turned the length of the marriage against him: “The duration of the marriage indicates the burden of the joint estate on the applicant” (para 40). In MAM v DLM [2026] JOL 76757 (GP) Kekana AJ took a middle course. The wife’s contributions over twenty years could not be ignored, so complete forfeiture was refused, but she was ordered to forfeit any claim to the husband’s pension (paras 31 to 32).
Legal duration or actual cohabitation? Here the judgments do not speak with one voice. Matyila, as quoted in V T v N K at para 51 and in A M v J M at para 10, gives the words their ordinary meaning: the period from the date of marriage to the date of divorce or, at the least, to the institution of proceedings. V T v N K applied that approach.
Other judgments look through the legal duration to the years actually spent together. In L M v S M the marriage had lasted 23½ years in law, but the parties had lived apart for 19 of them, and the court relied on “the short de facto duration of the marriage” (paras 20 and 26). In G V v M V a 38-year marriage was treated as “effectively one of 17 years” (para 40). W M C M v U A M [2026] ZAGPPHC 441 regarded 24 years as a neutral factor because the parties had not lived as husband and wife since 2014 (para 13). A M v J M quoted Matyila and then weighed the fact that the parties had lived apart for roughly twice as long as they had lived together (para 11).
BND v KCD takes this furthest. The parties married in 1998. Manamela J held that, although the marriage was of long duration, it had lacked the qualities of a normal marital relationship since the husband’s infidelity began, and that he had left in 2019 to live with another woman. The “qualitative years” of the marriage were therefore only twelve, less than half its legal duration, and that was the main reason the husband’s share of the joint estate was reduced by half (para 81). Matyila itself says only that the duration “may be inferred from the alleged date of the marriage and the date of institution of action”.
Two more judgments bear on how duration is counted. In MCN v GMLN [2024] ZAGPPHC 516; [2024] JOL 65075 (GP) Neukircher J found that a marriage of 24 years had in reality broken down when the wife moved out of the shared bedroom in 2006: “whilst on paper the marriage lasted 24 years, in reality it lasted for 6 years” (paras 11 and 21). In Phenya v Phenya [2020] ZAGPJHC 281; [2020] JOL 48889 (GJ) the question was the reverse. The parties had been married by customary law for some years before their civil marriage in July 2015, and the wife argued that only the civil marriage counted. Khumalo AJ (Adams J concurring) disagreed: “I can think of no reason why the period during which the parties were married in terms of customary law should not be taken into account” (para 37). The marriage had therefore lasted at least six years when proceedings began and was “by no means a very short marriage” (paras 38 to 39).
No SCA judgment resolves this difference. The safer course in pleading is to state both periods: the legal duration, and the dates of separation and of any long absences.
The second factor: circumstances giving rise to the breakdown
Where both spouses contributed to the breakdown, this factor is neutral and the claim usually fails; where the evidence fixes the breakdown on one spouse’s conduct, it can carry a forfeiture order without a finding of substantial misconduct.
Shared responsibility. The most recent decision is the clearest. In C W M v J N M the husband sought forfeiture of the wife’s share of his pension interest after a marriage concluded in 2004. Each accused the other of infidelity and each had sought a protection order against the other. Swanepoel J, with Lenyai J concurring, found that the relationship had broken down over time for reasons other than the alleged infidelity, that the husband had not shown that the wife’s conduct “led substantially to the break-down”, and that it was “a confluence of factors” (paras 15 to 16). The appeal against the refusal of forfeiture was dismissed.
I S M v R Q M M is to the same effect. The husband had, at best for him, dalliances with other women, and the wife had persisted in trading activities that she knew put his employment at risk (paras 28 to 29). Neukircher J held that each was responsible for the breakdown and that the wife’s conduct did not tip the scales “when viewed through the lens of his own hand in the breakdown” (para 34). In M M NO v N L the high-water mark of the evidence was that the husband had left the common home, and the pleaded emotional and financial abuse was not established (para 22). R M v M M found that the marriage failed mainly through financial strain and observed that it is seldom possible to identify one event as decisive (paras 31 and 54).
Where the evidence is too thin to say who caused the breakdown, the court will not guess. V T v N K held that, given the paucity of evidence, it could not be expected to find who the guilty party was (para 59).
The SCA applied the same approach in BS v PS. The trial court had fixed on the wife’s disclosure of a relationship with another man as the turning point and held that she had caused the breakdown. The SCA disagreed: the marriage had been unhappy from an early stage, both spouses had been unfaithful, the husband had been verbally abusive, and the marriage had been put under considerable strain by his transfer to another town, which the wife could not reasonably follow. “To place all the blame on the appellant was not justified by the evidence” (para 10). Mashola describes BS v PS as authority that a court should not focus on an isolated incident of adultery by one spouse instead of considering the duration of the marriage and the circumstances of the breakdown (para 31). The three-judge court in Hodgkinson reasoned in the same way: the husband’s conduct was clearly a factor leading to the breakdown, “it was not the only factor” (para 42), and the refusal of forfeiture was upheld. So did Moss, where the court was unable to find that the wife was solely to blame (para 20).
Breakdown attributable to one spouse. G V v M V is the best example of this factor succeeding on its own. The court could not prefer either version of the alleged assaults and held that the remaining allegations did not amount to substantial misconduct (para 40). Partial forfeiture of the wife’s pension interest was nevertheless granted “in respect of the general reasons for the breakdown”: the husband had been an absent father and husband and was financially selfish, and the parties had lived separate lives for more than half the marriage (paras 41 to 42). L M v S M similarly rested on the short actual duration and the finding that the marriage broke down as a result of the husband’s conduct (paras 25 to 26).
Conduct after the breakdown. Timing matters. In B M P v T K P [2025] ZAGPJHC 2284 the Regional Court had discounted the husband’s admitted affair because it began after the marriage had already broken down and he had left the home (para 27). The appeal succeeded on other grounds, namely financial abuse and children born of extra-marital relationships (paras 41 and 53). In A M v J M the husband’s affair was accepted as the conduct that led to the breakdown but not as substantial misconduct, and the wife had waited fourteen years after he left before issuing summons (para 15). T S v M L S took a similar view of a serious assault committed sixteen years before summons: the parties had stayed together for all that time, and the assault could not be the immediate cause of the breakdown, although it may have contributed (para 15).
Overlap with misconduct. The second and third factors are distinct. Wijker, as summarised in W M C M v U A M in the passage preceding para 12, through a quotation from Mashola, allows a party’s misconduct to be taken into account as a circumstance of the breakdown, while substantial misconduct “may include conduct which has nothing to do with the breakdown of the marriage”. V G v T M illustrates the first half of that statement in reverse: children born out of wedlock and the effect of the husband’s conduct on the wife’s health were factors that led to the breakdown, but on the evidence they did not justify forfeiture (para 17).
The third factor: substantial misconduct
Substantial misconduct is the factor most often relied on and most often found wanting. The cases set a high bar in principle and then apply it to four recurring patterns: financial misconduct, violence and abuse, infidelity, and conduct particular to the marriage in question.
The standard. The misconduct must be serious. Z v Z, as quoted in V G v T M at para 18 and N M M v N M S at para 32, requires that it be misconduct which not only does not accord with the marriage relationship but is also serious. T S v M L S cites Wijker for the test that the misconduct must be “so obvious and gross that it would be repugnant to justice to let the guilty party get away with the spoils of the marriage” (para 14). The principles adopted in B G N v N P N add that the misconduct contemplated in s 9(1) is more serious than the conduct relevant under s 7(2).
The older authorities bear this out. Singh draws the contrast with s 7(2): for maintenance, the relevant conduct can be any conduct that caused or contributed to the breakdown, but under s 9(1) the misconduct must be substantial. Matyila quotes with approval a commentator’s hope that the courts will take misconduct into account “only when it is so obvious and gross that it would be repugnant to justice to let the guilty spouse get away with the spoils of the marriage”, and Mashola adopts the same language (para 28(d)). MR v JR asks for misconduct “of such a great magnitude” that it is far more than the raking up of minor domestic grievances (para 46), and held that friction between one spouse and the other’s daughters did not qualify (para 47). Mashola adds that substantial misconduct “is not a stand-alone factor but has to be considered with the other factors mentioned in s 9(1)” (para 27).
A finding of substantial misconduct does not by itself produce forfeiture. Engelbrecht, as described in the Mashola passage quoted in W M C M v U A M, held that a wife who had assisted her husband faithfully for 20 years could not have been intended to forfeit because of her adultery. The question remains whether the benefit is undue.
Hodgkinson is an example. The trial court’s finding, upheld on appeal, was that the husband’s substantial misconduct “was not sufficient to persuade him to make an order of forfeiture” (para 45). TJM v KJM and Another [2025] JOL 71296 (GP) accepts the same proposition in terms: substantial misconduct alone does not lead to a forfeiture order.
Financial misconduct. This is now the most productive ground. The two leading cases are both 2023 decisions of the SCA, one a refusal and one a grant.
The refusal is I M v A M. The husband had withdrawn more than R2 million from the GEPF about 12 months before issuing summons, and the wife sought forfeiture of his half share of her pension interest because he had not accounted for it. The SCA held that substantial misconduct was not established. On the wife’s own evidence a significant part of the money had gone into the household and the home, her figures kept changing, and some of the information could have been obtained from the banks. In the court’s words, “it could not be concluded that there was total lack of accounting to the level of substantial misconduct” (paras 30 to 31).
The grant is Mashola v Mashola [2023] ZASCA 75. The wife, a teacher, sought forfeiture of the husband’s share of her GEPF pension interest. Her evidence was that he had conducted an affair with a former employee of the family business for more than nine years, had told a counsellor that he would never stop having extra-marital relationships, had set up a competing cash loan business and funeral businesses with the other woman using the resources of the joint estate, had deregistered the family business without telling his wife, and had left her to obtain maintenance orders for the children’s education, in the course of which she learned that he had six other children. The trial court and a full court refused forfeiture. The SCA (Mbatha JA, for a unanimous court) granted it. The affair was “not an isolated incident” but “gross, repugnant and humiliating”, and the husband had filed for divorce only once nothing was left in the joint estate except the wife’s pension interest and a few assets (para 37). Channelling the assets of the joint estate into businesses with a third party “undoubtedly constitutes misconduct” (para 39). He had “used the assets of the joint estate as if he had the marital power to do so” (para 40), a point the court drew by analogy from Badenhorst v Badenhorst (para 30).
Failure to account can therefore amount to substantial misconduct, but only if the claimant proves that the money was not applied to the joint estate. O E M v D S M is the counter-example. The husband had concealed a provident fund resignation benefit and a surplus apportionment payment, which the wife discovered by chance, and had alienated an immovable property to the children of his earlier marriage without consulting her (paras 9 to 10). Bam J, with Senyatsi J concurring, relied on Tsebe v Tsebe, where using a pension payout exclusively for oneself was held to be substantial misconduct, and dismissed the appeal against the forfeiture order (para 17).
The same pattern recurs. In W M C M v U A M the husband refused to account for his pension payout and for a vehicle bought for a transport business (para 14). In S B K v P T K the husband concealed his earnings, stopped paying maintenance, used his retrenchment pension for himself and withheld financial statements in the face of two court orders (paras 26 to 27 and 30). In M J L v L O L [2025] ZAGPPHC 1635 the husband dissipated a pension benefit of R432 000 without telling his wife (para 34.6), and the court held that substantial misconduct includes irresponsibly diminishing the patrimony of the joint estate (para 41).
Where the money can be traced into the joint estate, the ground fails. In N M M v N M S the husband had paid R416 570,06 of his pension payout towards joint debts, and the wife could not rebut that evidence (para 27). In MNB v MMP the house the wife wanted forfeited had been bought with R1 570 000 from the husband’s pension, and more than R2,7 million of that fund had been spent on the joint estate (para 37).
Further High Court judgments supply examples on both sides. In MAM v DLM the wife had received her own pension payout and spent it without telling her husband. Kekana AJ held that it would be “disturbingly unfair” for a spouse who had not shared her pension to claim a share of his, and ordered her to forfeit any claim to his pension, including the monthly annuity (paras 27 and 32). In TJM v KJM the husband had left the home almost three years earlier and used his own pension benefits to acquire assets elsewhere; he forfeited his share of the wife’s GEPF pension interest and his half share of the house (paras 23 to 24). In MPM v GPM the husband’s “selfish stance of pocketing money to himself” while the wife struggled to meet the bond and the household expenses was held to be tantamount to substantial misconduct (para 36). In BND v KCD dissipation of joint assets on a series of extra-marital relationships over some fifteen years cost the husband half of his share of the joint estate (paras 80 to 82). The claim in PP v PP, by contrast, failed although the husband had received a payout of more than R1,2 million, because the wife did not plead or prove the nature and value of the benefit she wanted forfeited.
Three more judgments are consistent with this. In NEM v RLDM the wife alleged that the husband had withdrawn about R500 000 from his pension fund and never shared it. On the evidence, and on her own concessions in cross-examination, he had used it to buy two cars and to pay the bond until the money ran out, and had gone on contributing irregularly from his taxi business after that (paras 14, 19 and 21). Forfeiture was refused. In CTM v IAM the husband received R57 000 on retrenchment, did not tell his wife, and on the court’s finding spent it on himself (paras 11 and 14). In MCN v GMLN the husband had been unemployed for most of the marriage, could not explain his sources of income, had failed to support the family and for the last four years had contributed nothing; Neukircher J found the substantial misconduct element established and ordered him to forfeit his entire share of the wife’s GEPF pension interest (paras 21 to 22 and 25).
Persistent failure to support. B G N v N P N goes furthest. Roberson J held that “it is a spouse’s and a parent’s obligation to provide support. To fail to do so when there are the means, is in my view substantial misconduct” (para 45). The husband had kept whatever he earned for himself throughout the marriage, and substantial misconduct was the decisive factor. P Z v B Z reached a similar conclusion where the husband had failed in his duty of support and had been abusive towards his wife and children (paras 10 and 19).
This line sits close to the limit set by Engelbrecht, because a spouse who contributes less is not for that reason unduly benefited. The distinction the cases draw is between contributing less and choosing not to contribute at all when able to. R M v M M shows the other side of it: periods of unemployment that strained the marriage were not misconduct at all, because the husband had met his obligations diligently whenever he was employed (para 57).
NP v MP marks the limit from the other side. The husband complained that his wife had refused to take up employment. The Free State appeal court held, with reference to Matyila, that her alleged reluctance to work could not be regarded as substantial misconduct as envisaged by s 9(1). In Matyila itself one of the grounds advanced was that the wife had “failed to make dresses to earn a living”, and it took the claim no further.
Violence and abuse. Sustained violence has founded forfeiture in the recent cases. In W M C M v U A M the wife had obtained no fewer than four interim protection orders, and Bam J found that the assaults, the abuse, the neglect and the financial delinquency amounted to substantial misconduct “whether considered cumulatively or in isolation” (paras 14 to 15). In N J v O J the defendant’s conduct throughout a short marriage, together with his failure to contribute to the joint estate, justified forfeiture of the wife’s pension, retirement annuity and immovable property (paras 111 and 189). In B M P v T K P the appeal court held that it was a misdirection to discount an undefended protection order because the wife had not produced it or laid criminal charges (para 53).
Isolated or historic violence has not been enough. R M v M M treated one affair in 2000 and one physical altercation in 2015 as single incidents that were not features of the relationship (para 59). T S v M L S refused forfeiture despite a 2006 assault to which the husband had pleaded guilty, because the parties had lived together for sixteen years afterwards and the later incidents the wife testified about had not been pleaded (paras 15 to 16 and 20). In G V v M V each spouse accused the other of assault, there were no affidavits, medical reports or corroborating witnesses, and the versions were evenly matched (para 40).
TJM v KJM goes the other way on a single incident. Moshoana J rejected the argument that an assault which was not repeated could not be substantial misconduct, referring to the Domestic Violence Act 116 of 1998 and reasoning that a single act of physical abuse is serious enough. The assault was, however, coupled with the husband’s failure to contribute to the joint estate when he was able to do so, and it was the combination that made the benefit undue (para 23). The judgment is difficult to reconcile with R M v M M and T S v M L S on the weight of one incident, and it should be relied on for the combination and not for the single assault.
Infidelity. Adultery alone has seldom been enough. It was not substantial misconduct in A M v J M (para 15), in T S v M L S (para 19), or in MNB v MMP, where neither party was innocent and the wife had forgiven the affairs (para 41). It succeeded where it was prolonged and combined with financial misconduct, as in M J L v L O L (para 41) and B M P v T K P (para 41).
K P S v M D S is the exception. Mabuse J granted forfeiture of specified assets where the husband’s admitted adultery was the primary reason the wife sued for divorce and there was no evidence of any misconduct on her part (para 21.4). The judgment itself records that the mere existence of substantial misconduct is ordinarily insufficient, and it also recorded the wife’s evidence that the husband had kept his pension benefits and the proceeds of a house for himself (paras 13 to 14).
Other judgments show the same spread. Matyila held as long ago as 1985 that adultery may suffice to prove breakdown without being substantial misconduct. Singh granted forfeiture against a wife whose adultery was admitted, but preserved her 20 per cent contribution. BOO v NNO refused forfeiture where the husband relied on the wife’s extra-marital relationship and desertion. SR v NR [2020] JOL 47185 (ECG) upheld on appeal an order that the wife forfeit her share of the husband’s pension interest, where he had relied on her extra-marital affairs. The court held that the circumstances leading to the breakdown or the duration of the marriage rendered the benefit undue despite her non-financial contribution in the first six years (para 27). The most recent example is EM v SM. The parties had lived apart since 2020, and the wife had a child with another man in 2023 and publicised the birth on social media. Bam J treated the combination of the affair, the child and the publicity, which “must have humiliated” the husband, as misconduct that made the wife’s share of his pension an undue benefit (para 13). The judgment refers to misconduct and not to substantial misconduct, and it treats a nine-year marriage as neutral, so it sits at the generous end of the range.
Lesoro and NEM v RLDM, both Free State judgments, treat a claim founded on adultery as an attempt to revive the common-law rule that the spouse who caused the breakdown may not share in the joint estate, and both rely on Swart v Swart 1980 (4) SA 364 (O) for the point that adultery and desertion may be symptoms of a breakdown and not its cause (Lesoro para 26; NEM para 20). In Rampa the husband’s own extra-marital affairs counted against his claim for forfeiture (para 38).
What the SCA decisions have in common is the distinction between an isolated lapse and a sustained course of conduct. In BS v PS infidelity on both sides, in an unhappy marriage of 28 years, did not justify forfeiture. In Mashola a nine-year affair conducted openly and financed from the joint estate did.
Conduct specific to the marriage. M S v M V [2023] ZAGPJHC 2346 held that a husband who entered into further customary marriages without his wife’s consent had committed substantial misconduct, and ordered him to forfeit his half share of her pension interest (para 35). M M v N M refers at para 41.3 to an earlier Pretoria decision in which deliberate concealment of HIV status before a marriage of 9½ months was held to be substantial misconduct justifying complete forfeiture.
Litigation conduct is not a s 9 factor. In I S M v R Q M M the wife’s incomplete financial disclosure was “to be frowned upon” but could not be considered in relation to the breakdown; it went to costs (paras 26 and 34). S B K v P T K comes close to the line, since the husband’s refusal to make discovery was treated as a continuation of his financial concealment during the marriage (para 27).
Forfeiture of pension interests and living annuities
Most modern forfeiture claims are about a pension interest: it is the asset, or one of the assets, in issue in most of the recent judgments, and very often the member spouse belongs to the Government Employees Pension Fund.
The starting point is s 7(7). A pension interest is deemed to be part of the member’s assets when the patrimonial benefits are determined, so in a marriage in community the non-member spouse shares in it by operation of law. I M v A M sets out ss 7(7) and 7(8) at para 21 and draws the consequence at para 22: the spouse who wants to keep the whole pension interest is the one seeking forfeiture and bears the onus. T S v M L S adds that the extent of the benefit is the amount to be paid out when the pension benefit becomes due (para 13).
The earlier SCA authority is Old Mutual v Swemmer, which holds that s 7(7)(a) deems the member’s pension interest to be an asset for purposes of determining the patrimonial benefits, and that the narrow definition of “pension interest” also limits what a court may order a fund to pay under s 7(8)(a) (paras 19 to 20). Moss applies it (para 43). The three-judge court in Phokobye adds that the non-member spouse’s entitlement does not depend on s 7(8): if the divorce order is silent, each spouse is still entitled to half of the other’s pension interest, and s 7(8) merely provides the mechanism by which the fund is bound to pay.
No contribution to the pension is not enough. A non-member spouse never contributes to the other’s pension fund, so that fact alone cannot make the benefit undue. M M v N M records an earlier decision to that effect (para 41.2). M S v M V treated the husband’s lack of contribution to the wife’s pension as “axiomatic” and relied on it together with a finding of substantial misconduct (paras 34 to 35). Something from the three factors must be added.
BS v PS supplies the answer to the argument that the non-member “never contributed directly” to the fund. The husband’s contributions were deducted from his salary, but he could afford them because the wife was paying about 80% of the household expenses (paras 11 to 14). Mashola shows the other side: the absence of any contribution by the husband to the wife’s pension was noted (para 39), but only alongside findings of substantial misconduct and dissipation.
The pension already spent. The typical case is the spouse who cashed in his or her own pension, spent it, and then claims half of the other’s. Forfeiture was granted on that footing in O E M v D S M, W M C M v U A M, S B K v P T K and M J L v L O L. It was refused in I M v A M, N M M v N M S and MNB v MMP, in each case because the evidence showed that a real part of the payout had gone into the joint estate. V G v T M set aside a forfeiture order where, on the appellant’s argument, the wife’s own case was that both parties had lived off the husband’s pension payouts when he lost jobs (para 4).
N M M v N M S contains a useful arithmetic check. The husband had applied R416 570,06 of his payout to joint debts, which was less than half of what the wife asked him to forfeit, so that a forfeiture order would have left the wife unduly benefited (para 27).
Each keeps their own. Where both spouses have pension interests and both have drawn on them, a mutual order may be the answer. In V T v N K the wife had already withdrawn and spent three pension payouts, and the court ordered that each party forfeit any share in the other’s pension fund, so that each retained their own (paras 69 to 70).
RPK v MAK shows the mirror image where forfeiture is refused: the GEPF was ordered to pay the husband 50% of the wife’s pension interest, and the husband’s provident scheme was ordered to pay the wife 50% of his. MAM v DLM extends a pension forfeiture to the income stream, the wife forfeiting any claim to the monthly annuity as well as the lump sum (para 26 and the order).
Time-limited forfeiture. G V v M V shows that a pension claim can be framed by period. The wife amended her counterclaim in closing argument to seek forfeiture of her pension interest only from the date of separation in August 2011, and partial forfeiture was granted on that basis (para 42). In M M v N M the husband tendered a portion of his pension interest and the order followed the tender (para 43).
Rampa shows the limit of that approach. The Regional Court had ordered division of the joint estate, including the pension funds, up to the date on which the wife left the home in 2007, and forfeiture by her of all benefits accumulated after that date. The appeal court set the order aside. The assets the husband had acquired after 2007 were not his acquisitions but those of the joint estate, made “from and on the strength of what had been accumulated by the parties as a couple” over 22 years (para 14), and there was no proof that the net value of the joint estate had increased after 2007 at all (para 42). A cut-off date is therefore not a substitute for proving the benefit. Lesoro is a related point: the 15 years of pensionable service that the husband had accrued before the marriage fell into the joint estate, and if he had wished to protect it he should have concluded an antenuptial contract (paras 28 and 33).
Living annuities. B M P v T K P is the fullest treatment of them. The appeal court held that the Regional Court had erred in making no express pronouncement on the income portion of the wife’s Allan Gray annuities (para 52), referred to the SCA’s decision in Montanari v Montanari (para 49), and ordered that the husband was entitled to 20% of the income derived from her living annuities. At the same time the wife was held entitled to 50% of the husband’s GEPF pension interest. The order therefore treats annuity income, and not the underlying capital, as the asset in which the other spouse shares.
Rampa takes a different route, without discussion. The husband had cashed in a third of his pension fund and reinvested the balance in a living annuity. The appeal court declared the wife entitled to 50% of his net pension interest in the annuity and ordered the insurer to endorse it to the effect that she was entitled to 50% of its value at the date of divorce (order paras (d) and (e)).
The form of the order. Where forfeiture is refused, the usual s 7(8) order follows. In C W M v J N M the Regional Court had ordered the GEPF to pay 50% of the member’s interest to the non-member spouse within 60 days (para 3.2), and that order survived the appeal. Where forfeiture is granted, the order should identify the fund, as in P Z v B Z, which declared that the husband forfeited in full his entitlement to share in the wife’s GEPF pension interest.
Two cautions come from the older cases. Human v Human refused a s 7(8)(a) order in favour of the husband where a general forfeiture order was made against the wife and its effect on the division was still uncertain; if it later appeared that he had contributed less and was entitled to part of her pension interest, steps could be taken then. And Old Mutual v Swemmer is a reminder that the fund is bound only by an order that keeps within ss 7(7) and 7(8) read with s 37A of the Pension Funds Act 24 of 1956. A forfeiture order cannot give the non-member spouse ownership of a policy or payment of benefits that have not accrued to the member.
Total or partial forfeiture of patrimonial benefits and the form of the order
The section permits forfeiture “wholly or in part”, and the clear trend in the cases is towards asset-specific or percentage orders in place of a general forfeiture.
Asset-specific orders. The commonest form names the assets. S B K v P T K ordered the husband to forfeit his 50% share in a list of eight items, including the balance of the proceeds of the matrimonial home, shares, two retirement annuities, a provident fund interest and household furniture, and appointed a receiver to divide the remainder of the joint estate equally (order paras 14 to 15). L M v S M listed the house, its contents, the pension interest and a vehicle, and then provided that “save as aforesaid the joint estate shall be divided”. M S v M V granted forfeiture of the pension interest only, because neither party had proved their contributions to the immovable properties and vehicles, which stayed in the joint estate (para 35).
Percentage orders. B M P v T K P is the most finely graded order. The husband was ordered to forfeit 100% of the household effects and of a vehicle, and 80% of his interest in the matrimonial home, which was valued at R4 795 000. Mali J explained that forfeiture is not meant to punish, which is why the order was “partial in some respects and in full in other respects” (para 54). The principles adopted in B G N v N P N confirm that a court can order forfeiture of a percentage of the estate or of an asset.
BND v KCD is a percentage order over the whole estate: the husband “is to receive only 25% of the total value (after all liabilities are settled) of the joint estate, inclusive of the defendant’s pension interests”. The percentage was reached without valuations, Manamela J holding that the absence of values should not be an impediment where the misconduct is of a kind whose financial effect cannot be measured without disproportionate cost (para 80). That reasoning is hard to square with Engelbrecht as applied in PP v PP and R M v M M, and the order may be vulnerable for that reason. In BS v PS the trial court’s order that the wife forfeit 80% of her accrual claim was set aside on the merits, without criticism of the percentage form.
Phenya is the authority on how such percentages are reviewed. The Regional Court had found that the husband would be unduly benefited and ordered him to forfeit part of his share, leaving him with 30% of the house and of the wife’s pension interest. The wife appealed, arguing that a finding of undue benefit obliged the court to order total forfeiture and that the magistrate had not explained the figure. The appeal failed. Once undue benefit is found the court has a choice between partial and total forfeiture (para 28), and it was not necessary for the trial court to explain why it had chosen 20% and not 25%, 30% or 35% (para 42).
General orders. A bare order that the defendant “forfeits the benefits of the marriage in community of property” still appears, for example in W M C M v U A M, though that order went on to declare the house the wife’s exclusive property and to provide for transfer. The risk of a general order is shown by L O v J S O, where the parties left the Regional Court with different understandings of what had been forfeited and an appeal was needed to establish that the order reached only movables worth about R16 000. As K P S v M D S explains, a general order operates as a division coupled with forfeiture of the excess, which requires proof of what each party contributed.
Koza explained in 1982 why the old general order no longer works. Before the Act a court was obliged to make a general order if the innocent spouse asked for one. Under s 9(1) the court must have evidence on the three factors and “evidence of the nature and value of the benefits in respect whereof a forfeiture is sought”, and the claimant must formulate a prayer that defines the relief. Human v Human treats a general order as declaratory only, leaving the arithmetic to the division. Moodley and MPM v GPM nevertheless made orders that the husband forfeit “his 50% in the joint estate” and for “full forfeiture of benefits”. Read with K P S v M D S, such orders can only mean forfeiture of the benefit, not of the spouse’s own contribution.
The order cannot exceed the claim. Courts grant what is pleaded and no more. In I M v A M the High Court had ordered forfeiture of all patrimonial benefits when the wife had sought only the husband’s 50% of her pension interest. The SCA held that this was an order that had not been sought, based on evidence that had not been put up as the basis for forfeiture, and that “on this basis alone” it could not stand (para 25). K P S v M D S granted forfeiture as prayed, “nothing more and nothing less”. In V T v N K the husband had not sought forfeiture of the immovable property on his pleadings, so it remained in the joint estate (para 65).
SR v NR is a second appellate example. The husband had sought forfeiture only of his pension interest, the magistrate ordered forfeiture of the benefits of the marriage generally, and on appeal it was conceded that the order was too wide. The appeal court confined it to the pension interest and ordered division of the rest of the joint estate (paras 7 and 39).
Implementation. Where immovable property is forfeited, the order should deal with the bond and with transfer. W M C M v U A M made the wife responsible for all expenses including the bond, directed the husband to sign the transfer documents, and authorised the sheriff to sign if he failed to do so (order paras 3.1 to 3.4).
Pleading and proving a forfeiture claim
More forfeiture claims fail on pleading and proof than on the merits of the three factors. The procedural rules are well settled.
The claim must be pleaded. The facts relied on, and a prayer defining the relief, must appear in the pleadings. R M v M M quotes Koza v Koza to that effect (para 10), and N M M v N M S says the same (para 17). In T S v M L S Kubushi J put it shortly: “A forfeiture order is not simply for the taking. The claim must be properly pleaded and proved” (para 20).
Koza, as quoted in PP v PP, is the origin of the rule: “a party making a claim of this nature should plead the necessary facts to support that claim and formulate a proper prayer in the pleadings to define the nature of the relief sought”. PP v PP applies it strictly. The wife’s counterclaim alleged that the husband had used his pension payout for his sole advantage and that she would be “unduly impoverished” and he “unduly enriched”. It said nothing about the three factors or about the benefit, and an amendment moved at the start of the trial did not cure it. The result was absolution from the instance with costs (paras 36 to 43). Neukircher J added a warning for the other side: a party who sees that a forfeiture claim is excipiable and holds the point back for trial may be deprived of costs from the date on which the exception should have been taken (para 41).
CTM v IAM looks at the same problem from the claimant’s side. The wife’s counterclaim prayed for forfeiture without pleading it with particularity. Muravate AJ held that the husband’s remedy had been an exception under rule 23, that by pleading over he had waived the right to complain of vagueness, and that the pleadings read as a whole made out the case (para 26). Read with PP v PP, the lesson for both sides is that the objection belongs at the pleading stage.
Evidence on unpleaded grounds is disregarded. In T S v M L S the later assaults and verbal abuse the wife testified about had not been averred in her particulars and were not considered, because the husband had not been given the chance to plead to them (para 16). In M S v M V the wife had pleaded only the absence of consent to the further customary marriages, and evidence of other misconduct could not be taken into account (paras 26 to 27). At SCA level, I M v A M set aside a forfeiture order founded on infidelity and domestic violence where the wife had pleaded those matters but had not relied on them as her basis for forfeiture (para 25).
The rule binds courts as well as parties. In Mashola the full court had held of its own accord that the wife had condoned her husband’s affair and waived her right to rely on it. Condonation and waiver had not been pleaded or canvassed at the trial, and the SCA held that deciding the appeal on that basis was a misdirection (para 33). TJM v KJM is less strict: the husband’s encumbering and disposing of joint assets without consent was taken into account in the value judgment although it had “not been pleaded as forms of substantial misconduct” (para 23). The stricter approach of the SCA is the one to follow.
Do not plead s 7(2) factors or fairness. In R M v M M the counterclaim conflated the s 7(2) maintenance factors with those in s 9(1) and alleged that the husband would be “unfairly” advantaged. Bands AJ described the pleading as lacking legal coherence and open to exception, and noted that reliance on fairness ran through the wife’s evidence (paras 4 to 6).
A bare denial may amount to an admission. S B K v P T K is a warning to defendants. The husband did not plead specifically to the allegations supporting forfeiture, and Retief J held that the failure to plead to material facts resulted in their admission, including the allegation that he would be unduly benefited (paras 10, 19 and 22).
Amendment. A forfeiture claim can be introduced by amendment, even late. In G V v M V an amendment narrowing the claim to partial forfeiture was granted in closing argument because the evidence was already in and there was no prejudice. In E M S v M E S [2026] ZANWHC 426 Masike AJ held that an applicant for amendment need not prove her forfeiture case or describe her evidence at that stage; she need only state the material facts relied on (para 16), and disputes about who caused the breakdown are for the trial court (para 14). The amendment was nevertheless refused, because the proposed prayers sought equal division of the assets and, in the same breath, that the husband forfeit his entire half share. Those prayers were contradictory and would have rendered the particulars excipiable (para 25).
An amendment must also be carried through. In V T v N K the husband had given notice of amendment but had effected only part of it, and the point was taken at the end of argument (paras 11 to 12). Bawa AJ decided the matter on the pleadings as they stood in the bundle, having regard to the oral evidence (para 17).
Forfeiture must be claimed in the divorce action, by a spouse. Two judgments settle this. In Monyepao v Ledwaba the applicant, who was not a party to the marriage, asked for an order that the deceased’s customary-law wife forfeit the benefits of her marriage in favour of his estate. The SCA (Plasket JA) held that “the power of a court to order the forfeiture of benefits arises only as an adjunct to a decree of divorce”, that the claim can only be made by one party to a marriage against the other in divorce proceedings, and that it is not open to an outsider (para 21). In Phokobye v Nkhumishe a divorce order had been granted without reference to the wife’s pension interest. The husband later applied to vary it so as to obtain his half, and the court below dismissed the application on the ground that he would be unduly benefited. The Pretoria court of three judges (Neukircher J, Millar and Kooverjie JJ concurring) reversed. Section 9(1) is only applicable when a decree of divorce is granted, and the court below “was not at liberty to delve into the issue of whether an order of forfeiture should have been granted” (paras 20 and 24). The wife’s opposition was “little more than a claim for forfeiture ex post facto”.
M J L v L O L distinguishes Phokobye on its facts (paras 13 to 16). A default decree had been granted, the order for division of the joint estate alone was then rescinded while the decree stood, and the forfeiture counterclaim was ventilated in the resumed divorce action (para 18). The case is authority that a partial rescission of the proprietary order can reopen the door to forfeiture.
Separation of issues. Forfeiture lends itself to separate determination. In Tlou v Ralebipi the existence of the customary marriage was decided first under rule 33(4), and the forfeiture claim was then tried as a second separated issue (paras 2 to 3). In Watt the question whether a house donated during the marriage was a patrimonial benefit at all was decided as a preliminary question of law.
Quantification. The claimant must lead evidence of value. In R M v M M the wife proved the purchase price and the outstanding finance on a vehicle but not its value at divorce, and led only speculative evidence of the parties’ respective contributions to the house, so no benefit was established (paras 19 to 22). In N M M v N M S the wife proved only the current value of her pension fund and not its value at the date of marriage (para 26.1). MNB v MMP likewise required proof of the value of the property at the date of marriage (para 26). In I M v A M the Regional Court’s finding that there was no evidence of the nature or extent of the benefit was upheld, and the SCA remarked that the case could have been better prepared: “a more detailed and complete account of expenditure by the parties could have been pleaded and proper evidence tendered” (paras 28 and 33).
Other judgments are to the same effect. RPK v MAK required values at the date of the marriage (paras 26 and 30). In MCLN v VLM the husband produced only a list of assets he said he had bought from his own resources, with no values and no estimate of the liabilities or of the benefit (paras 98 to 100). MAM v DLM suggests a distinction: where the claim rests on non-contribution the values of the assets are essential and must be pleaded, but where it rests on substantial misconduct what must be pleaded is the misconduct (para 29). That distinction has not been tested on appeal, and PP v PP, which was also a misconduct case, did not draw it.
PRV v SN [2025] JOL 70895 (GP) is a short example. Modisa AJ adopted the statements that a party claiming forfeiture must plead the necessary facts and a proper prayer, that the allegation of undue benefit must be pleaded and proven, and that proof of substantial misconduct is not a sine qua non, and dismissed the counterclaim because the court was not satisfied that the plaintiff would be unduly benefited (paras 30 to 34). The plaintiff was awarded 50% of the defendant’s retirement fund benefits.
Mlangeni v Mlangeni [2020] JOL 47092 (GP) is a further example. The wife sought forfeiture of the husband’s share of her GEPF pension interest. Senyatsi J recorded that he had not been told the size of her contributions or the value of the pension, or the values of the other assets and who had contributed more (para 25), and held that she had not discharged the onus of showing a factual undue benefit (para 26). The joint estate, including both parties’ pension interests, was divided equally. Rampa describes the facts of Engelbrecht itself in the same terms: the husband had brought an erf and a bonded house into the marriage, there was no proof of what the house was worth when summons was issued, and he had therefore not proved the nature and extent of the wife’s benefit (para 32).
By contrast, the successful claimants put figures before the court. In S B K v P T K the wife testified that the undue benefit amounted to R2 079 697,96 (para 24), and in M J L v L O L the benefit was estimated at over R1,2 million (para 35).
Cross-examination and corroboration. A version not put to the other spouse carries little weight. See I S M v R Q M M para 24, L M v S M para 24, T S v M L S para 16 and V T v N K para 56. Allegations of assault should be supported by protection orders, charge sheets or medical evidence where they exist (G V v M V para 40).
Concessions by an unrepresented spouse. In B M P v T K P the unrepresented husband had told the Regional Court that he had no objection to forfeiting the furniture and a vehicle. On appeal he argued that this was a gesture of goodwill by a lay person. The court held him to it: his answers showed that he understood what forfeiture meant, and the Regional Court had erred in ordering equal division of assets he had agreed to forfeit (paras 34 and 52).
Remittal and substitution. Where a necessary fact was not canvassed, an appeal court may remit, as in K M v J M. A forfeiture claim survives the claimant’s death for purposes of appeal: in M M NO v N L the executor was substituted for the deceased wife and prosecuted the appeal.
Costs. Section 10 of the Divorce Act frees the court from the rule that costs follow the result (I M v A M para 34). Non-disclosure in the financial disclosure form, a maintenance claim abandoned at the door of the court and unsatisfactory evidence have all attracted adverse costs orders in forfeiture trials (M M v N M para 45; I S M v R Q M M para 26).
Appellate review of forfeiture orders
An appeal court is freer to interfere with the finding that a benefit is undue than with the final decision to order forfeiture. Wijker, as quoted in V G v T M at para 8, held that in deciding whether a party would be unduly benefited the trial court is not exercising a discretion in the narrower sense, so that an appeal court “may differ from the court a quo on the merits”. Only the final step, the decision to order forfeiture once an undue benefit is found, is a narrow discretion.
Wijker puts it this way: in deciding whether a party would be unduly benefited the trial court “would certainly not be exercising discretion in the narrower sense”, and the discretion that remains once undue benefit is found “may be more apparent than real” (at 727 to 728). Mashola confirms that Wijker “empowers the appeal court to reconsider the facts where the trial court failed to do so” (para 37). The appeals show four typical grounds of interference.
Factors outside the section. This is Botha itself: a value judgment informed by the motive for acquiring an asset is a misdirection.
Relief not sought, on a basis not pleaded. In I M v A M the High Court, sitting on appeal from the Regional Court, substituted total forfeiture on the ground of infidelity and domestic violence in a brief judgment that did not deal with the issue the parties had actually contested. The SCA restored the Regional Court’s order. It added that the Regional Court had committed no misdirection on the facts and that there was no basis to interfere with its exercise of discretion (para 32).
Mashola is the same error in reverse. The full court refused forfeiture on a defence of condonation and waiver that the husband had never raised (paras 21 and 33). SR v NR corrected an order that went beyond the relief the claimant himself had sought.
Skipping the first stage. In R M v M M the magistrate had not considered whether the husband would be benefited at all. That was a misdirection (paras 16 to 17), but it did not help the appellant: on a proper assessment of the record she had proved neither a benefit nor substantial misconduct, and the refusal of forfeiture stood. In K M v J M the omission to establish when the house was acquired led to a remittal.
In Mashola the SCA held that the full court had “misunderstood the concept of a value judgment” and had failed to apply the two-pronged approach, having simply concluded that both parties had committed substantial misconduct (para 34).
Evidence not supporting the finding. V G v T M set aside a forfeiture order because there was no cogent evidence of substantial misconduct: the husband had contributed materially to the children’s education and to building the marital home, and had tried to save the marriage (paras 6, 15 and 17). In the opposite direction, B M P v T K P reversed a refusal of forfeiture because the Regional Court had misdirected itself in finding no substantial misconduct (para 53).
BS v PS belongs here. The trial court’s findings that the wife had caused the breakdown and had contributed less to the growth of the husband’s estate were both contrary to the evidence, and counsel for the husband was constrained to concede the second (paras 10 and 14). In Mashola the full court had accepted the husband’s evidence although it was contradicted by his own pleadings and by documents put to him in cross-examination (paras 17 to 18 and 38). Not every factual error is enough: in SR v NR the magistrate was wrong to find that the wife had made no contribution to the joint estate, but that alone did not warrant interference with the forfeiture of the pension interest (para 16).
Where the trial court asked the right questions, appeals fail. In O E M v D S M the appellant argued that the magistrate had made no finding of substantial misconduct or undue benefit. The appeal court found that the magistrate had been guided by the s 9(1) factors, had made the finding, and had asked whether the appellant would be unduly benefited (para 19). C W M v J N M and M M NO v N L dismissed appeals against refusals of forfeiture, and M T v M M dismissed an appeal against a grant.
Phenya explains the standard for the last step. The choice between partial and total forfeiture, and the percentage, is a discretion in the narrow sense (para 20, citing Wijker at 728B to C). An appeal court will interfere only if the discretion was exercised capriciously, on a wrong principle, without unbiased judgment or without substantial reasons, and it may not alter the percentage merely because it would have preferred another (paras 23 to 26). The same judgment holds that a respondent who wants the forfeiture order set aside must note a cross-appeal; the request cannot be made from the bar (paras 13 to 14). Rampa is the contrasting case, where the appeal succeeded because no benefit had been proved at all (paras 33 to 34).
Hodgkinson and NP v MP are further examples. In the latter the appeal was so weak on the merits that condonation for its late prosecution was refused.
Two further points are worth noting. An appeal lies against the order and not the reasoning, so an appellant who shows that the reasons were wrong but cannot disturb the order will fail (L O v J S O para 12). And leave to appeal will be refused where the proposed ground invites the court to weigh something outside the three factors (T S v M L S para 6).
Forfeiture of patrimonial benefits outside community of property
Section 9(1) speaks of “the patrimonial benefits of the marriage” without reference to any particular regime, and the courts have applied it to marriages out of community of property from the start. N J v O J makes the textual point directly: the section “does not refer to a specific type of marriage but rather refers to the forfeiture of the patrimonial benefits” (para 187).
What can be forfeited where there is no joint estate. The early cases define the limits. In Rousalis v Rousalis 1980 (3) SA 446 (C) Van den Heever J held that s 9 does not allow a court to award, by way of “forfeiture”, a portion of an errant husband’s separate estate to his wife, “since forfeiture connotes the losing of a right or asset, and the patrimonial benefits of a marriage out of community are fixed at marriage by the terms of the parties’ antenuptial contract”. Watt (Melamet J) followed the preponderance of the Roman-Dutch authorities in holding that, where there is an antenuptial contract, forfeiture reaches only the benefits due or received under that contract. A house donated by the husband to the wife during the marriage, and not in terms of the contract, was not a patrimonial benefit of the marriage; nor were his later contributions to it or its increase in value. Koza left open whether gifts made during the marriage can ever be forfeited, and dismissed the appeal because the evidence was in any event inadequate. The court noted that its finding did not affect any right the wife might have to recover money or property on another basis, such as a loan. Klerck is an example of a claim framed within these limits: the husband had promised in the antenuptial contract to donate a house worth R100 000, and he asked for partial forfeiture in the form of release from his obligation to pay off the bond.
Accrual. Botha was an accrual case. The benefit in issue was the wife’s right to share in the accrual of the husband’s estate, of which the policy proceeds formed part, and the SCA dealt with the claim on the footing that s 9(1) governed it. The claim failed on its merits, not because the remedy was unavailable. The SCA’s order shows the effect of refusing forfeiture in an accrual marriage: the husband was ordered to pay R500 120 in addition to the R497 300 already awarded, the two amounts together representing the wife’s share of the accrual.
BS v PS is the second SCA decision on forfeiture of an accrual claim. The parties were married out of community with accrual. The assets in issue were the matrimonial home and the husband’s GEPF pension interest, valued at R4 537 231, and the trial court ordered the wife to forfeit 80% of her right to share in the accrual in respect of both. The SCA set the order aside and awarded her 50% of the pension interest. Again the remedy was treated as available in principle and refused on the merits. The three-judge court in Hodgkinson did the same. The first stage was satisfied because the house was registered in the wife’s name and the husband “would clearly be benefited in the calculation of the accrual of each party’s estate” (para 41), but the benefit was not undue, and the wife was ordered to pay R793 000 in satisfaction of his accrual claim (para 46).
Benefits conferred by antenuptial contract. V S v S S concerned a marriage out of community of property with the accrual system excluded. The antenuptial contract obliged the husband, on dissolution of the marriage for any reason, to pay the wife R2 million adjusted for inflation within five days, to keep her on a comprehensive medical aid, and to bind his estate for five years of premiums if he died first (para 11). By the time of trial the adjusted amount was R2 396 360 (para 4.6). The husband claimed forfeiture of those benefits, relying on duration alone.
Mia AJ treated the contractual benefits as patrimonial benefits of the marriage and applied the two-stage enquiry. The wife would plainly be benefited (para 17). Whether the benefit was undue was answered by the duration of eight months and by the purpose of the payment: the parties had intended the R2 million to put the wife back in the position she would have been in after selling her flat and investing the proceeds in the new home, but she had kept the proceeds of the flat (para 18). The court ordered forfeiture and also invoked the clean-break principle (para 21).
Is reliance on the purpose of the payment consistent with Botha, which excludes the motive for acquiring an asset? The two can be reconciled. In V S v S S the purpose of the payment was used to measure the benefit against a marriage of eight months, which is the duration factor at work, and the court expressly identified duration as the only factor informing its decision. But the point is open to argument, and V S v S S is a single-judge decision of the Johannesburg court.
Customary marriages. Section 8(4) of the Recognition of Customary Marriages Act 120 of 1998 gives a court dissolving a customary marriage the powers contemplated in s 9 of the Divorce Act, as the SCA records in Monyepao v Ledwaba (para 20). The section has been applied on that basis in Tlou v Ralebipi, MBM v MG and MCLN v VLM, and to a marriage that included further customary unions in M S v M V, discussed above under substantial misconduct. In M M v N M the wife alleged an earlier customary marriage in order to lengthen the duration of the relationship from 11 months to almost three years. She failed to prove it, and the court noted that a valid customary union would have been one of the elements to weigh under the duration factor (para 38).
Death. Section 9(1) has no application where the marriage ends by death. That follows from Monyepao v Ledwaba: without a decree of divorce there is no power to order forfeiture, and neither a rival spouse nor the estate can claim it (para 21).
Themes, tensions and practice points
What wins. The successful claims share a profile. The claimant spouse carried the household and built the assets, usually a house and a public-sector pension. The other spouse either left early, so that the marriage was short in fact if not in law, or stayed and combined non-support with concealment of money, most often a pension payout. The claimant then pleaded specific assets, led figures, and was not seriously challenged in cross-examination. S B K v P T K, M J L v L O L, W M C M v U A M and L M v S M all fit that description.
Mashola is the same profile at SCA level: a teacher’s GEPF pension, a husband who diverted the family businesses to a third party, and documentary evidence that contradicted his denials.
What loses. The failed claims are equally consistent: a long marriage in which both spouses contributed, mutual allegations of infidelity or abuse, no proof of what happened to money, no valuation, and a case that in substance asks for fairness. C W M v J N M, I S M v R Q M M, R M v M M and N M M v N M S are the models.
BS v PS, PP v PP, RPK v MAK and NP v MP belong with them.
Tensions in the High Court judgments. A careful reading shows formulations in some of the judgments that are difficult to square with Wijker and Botha. They should be cited with care.
First, equity language persists. N J v O J concluded that forfeiture “would be just and equitable in the circumstances” (para 189), although the findings on which it rested, a short marriage, the defendant’s conduct and his failure to contribute, fall within the section. Botha and the Pretoria judgments of Neukircher J are explicit that fairness and equity play no part.
Second, some judgments treat the three factors as threshold requirements. M M NO v N L held that because the claimant had “failed to meet any of the 3 requirements”, the question of undue benefit did not arise (para 23). Wijker orders the enquiry the other way: benefit first, then the factors as the measure of whether it is undue. The result in that case would have been the same on either approach, as para 24 shows.
Third, the stages are sometimes blurred. W M C M v U A M describes the first question, whether the defendant will be benefited, as a value judgment (para 12), where Wijker calls it purely factual. M J L v L O L records under the first stage that the husband “would unduly benefit” in an amount of over R1,2 million (para 35). M M v N M states at para 7 that Wijker held the factors “should be considered cumulatively”, which appears to be a slip, since the same sentence goes on to say that substantial misconduct need not be proved and the same judge states the rule correctly in L M v S M at para 17.
Fourth, there are differing statements on whether misconduct must be “substantial”. I S M v R Q M M lists among the governing considerations that “it is not necessary to prove that the misconduct complained of is substantial for forfeiture to be ordered” (para 9(f)). Read with Wijker, the better understanding is that substantial misconduct is not a prerequisite for forfeiture, because lesser misconduct can be weighed as a circumstance of the breakdown. Where a claimant relies on the third factor as such, the statute and the cases on substantial misconduct discussed above require that the misconduct be substantial. K P S v M D S says in one place that a claimant “must prove that the other party is guilty of substantial misconduct” (para 21.4) and in another that proof of any one factor suffices (para 29); the second statement is the one that accords with Botha para 6.
Fifth, non-contribution is doing more work than Engelbrecht would seem to allow. M S v M V required the claimant to show that the other spouse did not contribute to the assets or contributed less (para 32), and A M v J M weighed the parties’ contributions and the spousal maintenance already paid (para 14). Contribution is not one of the three factors. It is properly relevant to the first stage, as the measure of the benefit, and it may be evidence of misconduct where a spouse with means refuses to support the family. Used as a free-standing reason, it invites the criticism that succeeded in Botha.
Sixth, the SCA’s own reasoning in BS v PS includes considerations that are not obviously within the three factors. In holding that no forfeiture order should have been granted, Swain JA referred not only to the duration of the marriage but also to “the evidence that the appellant does not own a home” and to the absence of evidence on whether she had a pension for her old age (para 15). The decision is best read as resting on the two misdirections identified in paras 10 and 14 and on duration, with the remaining remarks going to why the trial court’s order produced an inappropriate result.
Seventh, some of the single-judge orders go further than the principles allow. MPM v GPM ordered “full forfeiture of benefits” against the husband and, in addition, payment to the wife of 50% of his pension interest, which the published summary of the judgment describes as compensating her for the financial constraints she had been put under. Forfeiture is not a compensatory remedy, and an order that takes from the guilty spouse part of his own contribution conflicts with K P S v M D S and Human v Human. BND v KCD dispenses with proof of value, and EM v SM and TJM v KJM set the bar for misconduct lower than Wijker and Mashola do. These judgments are useful for their facts but should not be cited for the propositions on which they depart from the appellate authority.
Practice points. For the claimant, the claim must be brought in the divorce action itself and pleaded as a s 9(1) claim. A claim raised after the decree, or by anyone other than a spouse, is incompetent (Monyepao v Ledwaba; Phokobye v Nkhumishe), and where a default decree has been granted the route is rescission of the proprietary order, not variation (M J L v L O L). The pleading should identify each asset or percentage sought, state the factors relied on with dates, and allege that the other spouse will be unduly benefited, leaving out the s 7(2) factors and the word “fair”. A prayer for equal division of everything should not be combined with a prayer for total forfeiture (E M S v M E S); the better course is to plead forfeiture of named assets and division of the remainder. In a marriage out of community of property, the benefit must be identified in the antenuptial contract or in the accrual claim, because a spouse’s separate estate and gifts made outside the contract are not reached (Rousalis; Watt).
The benefit must then be proved. That means evidence of the value of each asset at the date of the marriage and at divorce, of each party’s contributions and, for a pension, the fund’s statement of the pension interest. Where the complaint is a dissipated pension payout, the fund’s withdrawal records and the bank statements are essential; I M v A M shows that estimates which shift under cross-examination will not do. Every incident of abuse relied on must be pleaded, and protection orders, charge sheets and medical records discovered. The client’s whole version must be put to the other spouse in cross-examination.
For a defendant, each allegation supporting forfeiture, including the allegation of undue benefit, must be pleaded to specifically (S B K v P T K). A forfeiture claim that does not disclose the benefit or the factors relied on should be met with an exception when the defect appears; holding the point back for trial puts costs at risk (PP v PP), and pleading over may waive the complaint altogether (CTM v IAM). Where forfeiture is the only live issue, or depends on a prior question such as the existence of a customary marriage, separation under rule 33(4) is worth considering (Tlou v Ralebipi). Finally, the order should be drafted to be self-executing. It should name the fund and the member number, deal with the bond and with transfer of immovable property, and provide for the sheriff to sign if a party will not.
Conclusion
More than four decades after the Divorce Act came into force, the framework for forfeiture is settled at appellate level. Wijker fixes the two-stage enquiry and excludes fairness as a measure, Botha closes the list of factors, and Mashola confirms that a sustained course of conduct which drains the joint estate will meet the test even after a long marriage, while BS v PS and I M v A M show how readily an order falls away when the findings of fact do not support it. What remains unsettled is largely a matter of application in the High Courts: how duration is to be counted, how much weight non-contribution may carry, and whether a benefit can be found without values. Until the Supreme Court of Appeal addresses those questions, the cases reward the practitioner who pleads within the section, proves the benefit in rands, and ties every allegation of misconduct to the patrimony of the joint estate.
A note on citations. Judgments are cited by neutral citation where one is available and otherwise by their law report or Judgments Online (JOL) reference. Party names follow the form in which each judgment is published. This article surveys the case law for general information and is not legal advice on any particular matter.
Table of cases
The judgments discussed, newest first. Dates are dates of judgment, which for some reported cases are earlier than the year of the report.
| Case | Court | Date | Outcome on forfeiture |
| C W M v J N M [2026] ZAGPPHC 1045 | GP Pretoria, appeal (Swanepoel J, Lenyai J) | 28 Oct 2026 | Refused; appeal dismissed. Confluence of factors, no substantial misconduct. |
| E M S v M E S [2026] ZANWHC 426 | North West, Mahikeng (Masike AJ) | 28 Aug 2026 | Procedural. Leave to amend to add forfeiture refused; contradictory prayers. |
| BND v KCD [2026] JOL 78731 (GP) | GP Pretoria (Manamela J) | 20 Aug 2026 | Partial, granted. Husband limited to 25% of the joint estate, including wife’s pension interests; prolonged infidelity and dissipation. |
| MAM v DLM [2026] JOL 76757 (GP) | GP Pretoria (Kekana AJ) | 15 Jun 2026 | Partial, granted. Wife forfeits any claim to husband’s pension and annuity; she had spent her own payout. |
| N J v O J [2026] ZAKZDHC 63 | KZN Durban | 24 Mar 2026 | Granted. Pension, retirement annuity and house; short marriage, abuse, no contribution. |
| W M C M v U A M [2026] ZAGPPHC 441 | GP Pretoria (Bam J) | 12 Jan 2026 | Granted. Violence, non-support, unaccounted pension payout. |
| EM v SM [2026] ZAGPPHC 8; [2026] JOL 70474 (GP) | GP Pretoria (Bam J) | 12 Jan 2026 | Partial, granted. Wife forfeits share of husband’s pension; affair and child with a third party. |
| MCLN v VLM [2025] JOL 71721 (GP) | GP Pretoria (Manamela AJ) | 13 Nov 2025 | Refused. Short customary marriage; no values proved. |
| O E M v D S M [2025] ZAGPPHC 2449 | GP Pretoria, appeal (Bam J, Senyatsi J) | 16 Oct 2025 | Granted below; appeal dismissed. Concealed provident fund payouts. |
| B M P v T K P [2025] ZAGPJHC 2284 | GP Johannesburg, appeal (Mali J, Noko J) | 19 Sep 2025 | Refused below; granted on appeal. 100% of movables and vehicle, 80% of home; 20% of annuity income to husband. |
| S B K v P T K [2025] ZAGPPHC 2338 | GP Pretoria (Retief J) | 5 Sep 2025 | Partial, granted. Eight listed assets; receiver for the remainder. |
| PRV v SN [2025] JOL 70895 (GP) | GP Pretoria (Modisa AJ) | 19 Aug 2025 | Refused. Counterclaim dismissed; pension fund benefits divided. |
| PP v PP [2025] ZAGPPHC 900; [2025] JOL 71680 (GP) | GP Pretoria (Neukircher J) | 13 Aug 2025 | Absolution from the instance. Benefit not pleaded or proved. |
| B G N v N P N [2025] ZAECGHC 139 | EC Makhanda (Roberson J) | 15 Apr 2025 | Granted. Husband forfeits half share of wife’s pension interest; persistent non-support. |
| M J L v L O L [2025] ZAGPPHC 1635 | GP Pretoria | 27 Mar 2025 | Partial, granted. House and pension; prolonged affair and dissipation. |
| MBM v MG [2025] ZAGPJHC 337; [2025] JOL 71972 (GJ) | GP Johannesburg (Ntlama-Makhanya AJ) | 27 Mar 2025 | Refused. Customary marriage of under five years; pension interest divided. |
| RPK v MAK [2025] ZAGPPHC 301; [2025] JOL 70998 (GP) | GP Pretoria (Mzuzu AJ) | 17 Mar 2025 | Refused. Extent of benefit not shown; each fund ordered to pay 50% to the other spouse. |
| TJM v KJM and Another [2025] JOL 71296 (GP) | GP Pretoria (Moshoana J) | 3 Mar 2025 | Partial, granted. Husband forfeits share of wife’s GEPF pension interest and his half share of the house. |
| I S M v R Q M M [2024] ZAGPPHC 2410 | GP Pretoria (Neukircher J) | 10 Oct 2024 | Refused. Both responsible for breakdown. |
| K P S v M D S [2024] ZAGPPHC 2385 | GP Pretoria (Mabuse J) | 1 Oct 2024 | Granted as prayed, in respect of listed assets. Admitted adultery. |
| L O v J S O [2024] ZAECGHC 239 | EC Makhanda, appeal (Potgieter J) | 11 Sep 2024 | Granted below; appeal dismissed, but order cannot reach the house brought into the marriage. |
| Phokobye v Nkhumishe (M.A.P v F.M.A.N) [2024] ZAGPPHC 858; [2024] JOL 66423 (GP) | GP Pretoria, appeal (Neukircher J, Millar J, Kooverjie J) | 29 Aug 2024 | Procedural. Forfeiture cannot be raised after the decree in answer to a variation application. |
| T S v M L S [2024] ZAGPPHC 2147 | GP Pretoria (Kubushi J) | 1 Aug 2024 | Leave to appeal against refusal of forfeiture refused. |
| CTM v IAM [2024] JOL 65251 (GJ) | GP Johannesburg (Muravate AJ) | 24 Jun 2024 | Granted. Husband forfeits in full his share of wife’s GEPF pension interest; short de facto marriage, no contribution. |
| MCN v GMLN [2024] ZAGPPHC 516; [2024] JOL 65075 (GP) | GP Pretoria (Neukircher J) | 7 Jun 2024 | Partial, granted. Husband forfeits his share of wife’s GEPF pension interest; 24-year marriage that in reality lasted six. |
| V G v T M [2024] ZAECMHC 152 | EC Mthatha, appeal (Hinana AJ) | 30 May 2024 | Granted below; set aside on appeal. No substantial misconduct. |
| V T v N K [2024] ZAWCHC 366 | WC Cape Town (Bawa AJ) | 28 May 2024 | Mutual forfeiture of pensions; property claim refused and house left in joint estate. |
| T S v M L S [2024] ZAGPPHC 1703 | GP Pretoria (Kubushi J) | 19 Mar 2024 | Refused. Historic assault; later abuse not pleaded. Reported on SAFLII as [2024] ZAGPPHC 289. |
| A M v J M [2024] ZAGPPHC 1563 | GP Pretoria (Mazibuko AJ) | 21 Feb 2024 | Refused. Affair not substantial misconduct. |
| NEM v RLDM [2024] ZAFSHC 28; [2024] JOL 62835 (FB) | Free State | 2 Feb 2024 | Refused. Husband’s pension payout spent on the joint estate; 25-year marriage. |
| P Z v B Z [2024] ZAGPJHC 2106 | GP Johannesburg (Adams J) | 10 Jan 2024 | Partial, granted. Husband forfeits wife’s GEPF pension interest; abuse and non-contribution. |
| K M v J M [2023] ZAGPPHC 2487 | GP Pretoria, appeal (Motha J) | 27 Nov 2023 | Procedural. Remitted to establish when the house was acquired. |
| M S v M V [2023] ZAGPJHC 2346 | GP Johannesburg (Ally AJ) | 6 Oct 2023 | Partial, granted. Pension only; further customary marriages without consent. |
| Mashola v Mashola (M v M) [2023] ZASCA 75 | SCA (Mbatha JA) | 26 May 2023 | Refused in the High Court and full court; granted on appeal. Husband forfeits share of wife’s GEPF pension interest. |
| I M v A M [2023] ZASCA 33 | SCA (Mabindla-Boqwana JA) | 31 Mar 2023 | High Court’s total forfeiture set aside; Regional Court’s refusal restored. |
| L M v S M [2023] ZAGPPHC 1601 | GP Pretoria (Neukircher J) | 20 Mar 2023 | Partial, granted. House, contents, pension and vehicle; 19 years apart. |
| R M v M M [2023] ZAECGHC 149 | EC Makhanda, appeal (Bands AJ) | 24 Feb 2023 | Refused below; appeal dismissed. Benefit not proved or quantified. |
| G V v M V [2023] ZAGPPHC 1506 | GP Pretoria (Neukircher J) | 14 Feb 2023 | Partial, granted. Wife’s pension interest from August 2011; house claim refused. |
| MPM v GPM [2022] JOL 59529 (GP) | GP Pretoria (Manamela AJ) | 15 Nov 2022 | Granted. “Full forfeiture” against husband, with 50% of his pension interest to the wife. |
| N M M v N M S [2022] ZAGPPHC 1741 | GP Pretoria (Collis J) | 14 Nov 2022 | Refused. Pension payout traced into joint debts. |
| M M NO v N L [2022] ZAGPPHC 1329 | GP Pretoria, appeal (Kubushi J, Millar J) | 26 Oct 2022 | Refused below; appeal dismissed with costs. |
| M M v N M [2022] ZAGPPHC 1297 | GP Pretoria (Neukircher J) | 12 Sep 2022 | Partial, granted. Wife forfeits husband’s pension interest save for the portion tendered. |
| MNB v MMP [2022] ZAGPJHC 422 | GP Johannesburg | 3 Mar 2022 | Refused. Husband’s pension had funded the home. |
| M T v M M [2022] ZAGPJHC 44 | GP Johannesburg, appeal (Nemavhidi AJ, Monama J) | 26 Jan 2022 | Granted below; appeal dismissed. Short marriage, wife’s pre-marital properties. |
| Phenya v Phenya [2020] ZAGPJHC 281; [2020] JOL 48889 (GJ) | GP Johannesburg, appeal (Khumalo AJ, Adams J) | 2 Nov 2020 | Partial forfeiture below (husband left with 30% of house and pension interest); wife’s appeal for total forfeiture dismissed. |
| Rampa v Rampa [2020] JOL 48722 (GJ) | GP Johannesburg, appeal (Adams J, Majavu AJ) | 14 Oct 2020 | Granted below from a cut-off date; set aside on appeal. Equal division, including 50% of living annuity. |
| Monyepao v Ledwaba and Others [2020] JOL 47353 (SCA) | SCA (Plasket JA) | 27 May 2020 | Not competent. Forfeiture is an adjunct to a decree of divorce and can be claimed only by a spouse. |
| SR v NR [2020] JOL 47185 (ECG) | EC Makhanda, appeal (Ntsepe AJ, Dawood J) | 4 May 2020 | Granted below; confined on appeal to the husband’s pension interest. |
| Mlangeni v Mlangeni [2020] JOL 47092 (GP) | GP Pretoria (Senyatsi J) | 26 Mar 2020 | Refused. Nature and extent of benefit not proved; pension interests divided. |
| Lesoro v Lesoro [2020] ZAFSHC 44; [2020] JOL 46807 (FB) | Free State (Chesiwe J) | 27 Feb 2020 | Refused. 25-year marriage; homemaker’s contribution; wife takes 50% of pension interest. |
| Venter v Venter [2020] JOL 47783 (GP) | GP Pretoria (Maumela J) | 2020 | Counterclaim not proved; husband’s tendered forfeiture of his share in wife’s pension fund made an order. |
| PTT v BGT [2020] JOL 46515 (FB) | Free State (Murray AJ) | 5 Dec 2019 | Partial, granted. Husband forfeits share of wife’s pension interest, which began to accrue five months before separation. |
| V S v S S [2018] ZAGPJHC 617 | GP Johannesburg (Mia AJ) | 12 Sep 2018 | Granted. Contractual benefits under antenuptial contract; eight-month marriage. |
| BS v PS [2018] ZASCA 37; 2018 (4) SA 400 (SCA); [2018] JOL 40190 (SCA) | SCA (Swain JA) | 28 Mar 2018 | Forfeiture of 80% of accrual claim set aside; wife awarded 50% of pension interest. |
| Tlou v Ralebipi [2016] 4 All SA 251 (GP) | GP Pretoria (Kollapen J) | 10 Aug 2016 | Partial, granted. Wife forfeits all benefits except 50% of the net value of the marital home. Cited in later judgments as KT v MR 2017 (1) SA 97 (GP). |
| NP v MP [2017] JOL 39077 (FB) | Free State, appeal (Williams J, Mbhele AJ) | 19 Jun 2014 | Refused below; condonation for the appeal refused. Benefit not proved. |
| BOO v NNO [2012] JOL 29395 (GNP) | GP Pretoria (Makgoba J) | 2 Sep 2011 | Refused. Fairness and size of contributions are not the test. |
| Hodgkinson v Hodgkinson [2010] JOL 26261 (KZP) | KZN Pietermaritzburg, appeal (Van Zÿl J, Steyn J, Lopes J) | 7 Oct 2010 | Refused below; appeal dismissed. Accrual marriage. |
| MR v JR [2015] JOL 34218 (GNP) | GP Pretoria (Phatudi J) | 14 Sep 2010 | Refused. Fifteen-year marriage not short; no substantial misconduct. |
| Moodley v Moodley [2008] JOL 22279 (D) | KZN Durban (Tshabalala JP) | 14 Jul 2008 | Granted. Husband’s minimal contribution. |
| Botha v Botha [2006] ZASCA 6 | SCA (Van Heerden JA) | 9 Mar 2006 | Partial forfeiture set aside; counterclaim dismissed. Reported at 2006 (4) SA 144 (SCA). |
| Moss v Moss [2005] JOL 15786 (E) | Eastern Cape (Maqubela AJ) | 14 Jun 2005 | Refused. Three years of cohabitation; wife not solely to blame. |
| Malatji v Malatji [2005] JOL 13638 (T) | Transvaal (Seriti J) | 4 Feb 2005 | Granted. Wife left about 16 months after the wedding. |
| Old Mutual Life Assurance Co (SA) Ltd and Another v Swemmer 2004 (5) SA 373 (SCA); [2004] 4 BPLR 5581 (SCA) | SCA (Van Heerden AJA) | 18 Mar 2004 | Divorce order awarding retirement annuities by way of forfeiture not enforceable against the funds. |
| Human v Human [1999] JOL 4959 (E) | Eastern Cape (Liebenberg J) | 11 Mar 1999 | Granted as a general order; s 7(8) order refused. |
| Swanepoel v Swanepoel [1996] 3 All SA 440 (SE) | South-Eastern Cape (Zietsman JP) | 4 Apr 1996 | Granted, subject to payment of R18 000. Short duration only. |
| Wijker v Wijker 1993 (4) SA 720 (A) | Appellate Division (Van Coller AJA) | 26 Aug 1993 | Forfeiture set aside; counterclaim dismissed. |
| Binda v Binda 1993 (2) SA 123 (W) | Witwatersrand, appeal (Leveson J, Myburgh J) | 5 May 1992 | Refused below; granted on appeal. Factors not cumulative. |
| Persad v Persad and Another 1989 (4) SA 685 (D) | Durban (Didcott J) | 25 Aug 1989 | Granted. Tenancy of a council house is a patrimonial benefit. |
| Klerck v Klerck 1991 (1) SA 265 (W) | Witwatersrand (Kriegler J) | 23 Feb 1987 | Substantial misconduct not a precondition. |
| Matyila v Matyila 1987 (3) SA 230 (W) | Witwatersrand, appeal (Van Zyl J, O’Donovan AJ) | 11 Sep 1985 | Refused below; appeal dismissed. Held in Binda, and confirmed in Wijker, to be clearly wrong on the cumulative point. |
| Watt v Watt and Another 1984 (2) SA 455 (W) | Witwatersrand (Melamet J) | 12 Jan 1984 | House donated during a marriage out of community held not to be a patrimonial benefit. |
| Singh v Singh 1983 (1) SA 781 (C) | Cape (Baker J) | 29 Sep 1982 | Granted; wife paid 20% of house and furniture as her contribution. |
| Koza v Koza 1982 (3) SA 462 (T) | Transvaal, appeal (McCreath J, Goldstone J) | 22 Apr 1982 | Refused below; appeal dismissed. Evidence inadequate. |
| Rousalis v Rousalis 1980 (3) SA 446 (C) | Cape (Van den Heever J) | 28 Apr 1980 | Separate estate cannot be awarded by way of forfeiture. |
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator, Court Day Calculator and Accrual Calculator.