The parties were married in community of property in 1985. The respondent husband instituted divorce proceedings in 2016. The marriage had irretrievably broken down following the husband’s long‑term extramarital relationship with another woman, Eva Leshiba, with whom he conducted business, had a child, and to whom he allegedly diverted substantial joint‑estate resources. The applicant wife sought a partial forfeiture order under s 9(1) of the Divorce Act in respect of her pension interest held in the Government Employees Pension Fund (GEPF), alleging substantial misconduct and that the respondent would be unduly benefitted if forfeiture were not ordered. The High Court dismissed her forfeiture counterclaim and ordered equal division of the joint estate, including her pension interest. Her appeal to the full court failed, the full court holding that she had condoned the respondent’s adultery and that both parties were guilty of substantial misconduct. She then sought special leave to appeal to the Supreme Court of Appeal.
The appeal was upheld with costs. The order of the full court was set aside. The respondent’s counterclaim for partial forfeiture succeeded, and the applicant was ordered to forfeit the patrimonial benefits of the marriage in respect of her pension benefits and interest held in the Government Employees Pension Fund in favour of the respondent.
The case reaffirms and clarifies the application of s 9(1) of the Divorce Act, particularly in relation to partial forfeiture of pension interests in marriages in community of property. It underscores that courts may not raise new defences such as condonation and waiver mero motu on appeal, and it reinforces that substantial misconduct includes financial abuse and dissipation of joint‑estate assets, not merely adultery.