GOVERNMENT EMPLOYEES PENSION FUND Second Respondent
In this application, the applicant seeks orders declaring that: her ex-husband, the first respondent, is a member of the Government Employees Pension Fund (second respondent); that she is entitled to 50% of her ex-husband’s pension interest calculated from 9 March 2006; that the Government Employees Pension Fund be ordered t
oeffect payment to her of the 50% pension interest as at 6 March 2009 (this is obviously a mistake and should be 9 March 2006) within three months from date of this order. As is customary, she seeks an order that her ex-husband pays the costs of this application.
The background facts leading to this application are fairly straightforward. The applicant was married to the first respondent in community of property. The marriage subsisted from 10 October 2002 until 9 March 2006 when the late Patel J granted a decree of divorce.
The order reads as follows:
“ 1 THE bonds of marriage subsisting between plaintiff and defendant be and are hereby dissolved. THAT custody and control of the minor child be and is hereby awarded to the plaintiff, with reasonable access to defendant.
THAT the defendant pay maintenance for the minor child in the amount of R600.00 per month.
Division of the joint estate." (emphasis added) The application is opposed by the first respondent but no heads of argument were filed by him and neither was there any appearance on his behalf.
Before dealing with the merits of this application, it is important to deal with the following issues, namely:
whether this court lacks jurisdiction to adjudicate this dispute;
condonation for the late filing of the application;
whether the relief sought by the applicant is competent because the order of Patel J did not provide that the applicant is entitled to a pension interest as defined in the Divorce Act 70 of 1979 (“the Divorce Act”).
In his answering affidavit, the first respondent states that he is an incola of the North West High Court and that that court is the court of competent jurisdiction and not this court.
The applicant, on the other hand, contends that this court has jurisdiction by virtue of the fact that the second respondent is an incola of this court. She seeks an order that the second respondent effect payment of the 50% pension interest of the first respondent to her, which pension interest is held by the second respondent.
In Estates Agents Board v Lett, it was stated that the question of whether a court has jurisdiction depends on (a) the nature of the proceedings, (b) the nature of the relief claimed therein, or (c) in some cases, both (a) and (b).
In Kibe v Mphoko and Another", it was stated that where the respondent is a peregrinus the court has jurisdiction if, in the case of a mandatory interdict, the act is to be carried out within such area, or in the case of a prohibitory interdict, the act against which the interdict is claimed, is about to be done in such area.
In the matter at hand, the applicant seeks a declaratory order directed at the order of Patel J as well as an order directing the second respondent, who is an incolaof this court, to perform an act. The act must be performed in this jurisdiction. If the principles laid down in the Lek judgment supra are followed, I am satisfied that this court has jurisdiction.
Accordingly, this point in limine is dismissed.
DECREE OF DIVORCE OF 2006 AND CONDONATION
I propose to deal with the second and third issues simultaneously because, in my view, they are inextricably linked.
The applicant points out that this application is brought more than eight years after the order of Patel J. She was not aware of the amendment of the “applicable legislation which enabled [her] to apply for the payment of [her] 50% interesf. She only became aware of the “applicable legislation” recently.
This is the sum total of the application for condonation. No prayer for condonation is sought in the notice of motion. The applicant’s founding affidavit does not identify the applicable legislation which she alleges she became aware of recently.
The first respondent, in his answering affidavit, contends that the order of Patel J did not provide that the applicant is entitled to a pension interest as defined in the Divorce Act; the court order was also not issued in terms of section 37D(4) of the Pension Funds Act 24 of 1956 (“Pension Funds Act”) as it did not set out the percentage of the member’s pension interest or specific amount; and that the Fund was not expressly ordered to endorse its records and make payment of the pension interest.
The applicant, on the other hand, contends that, in terms of the decree of divorce, the joint estate of the parties must be divided. The pension interest of the first respondent formed part of the joint estate which should be divided on an equal basis.