THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
CASE NO: 393/04
In the matter between:
HEIDI BOTHA
Appellant
and
GABRIËL JOHANNES BOTHA
Respondent

Coram:
Harms, Brand, Conradie, Lewis et Van Heerden JJA
Heard:
17 February 2006
Delivered:
09 March 2006
Summary:
Divorce – forfeiture of patrimonial benefits of the
marriage – proceeds of two insurance policies taken out
by the defendant (husband) on the life of his father –
application of three factors referred to in s 9 of the
Divorce Act 70 of 1979
Neutral citation: This judgment may be referred to as Botha v Botha
[2006] SCA 7 (RSA)

JUDGMENT

VAN HEERDEN JA:

[1] The only issue in this appeal is whether or not the trial court was
correct in making a partial forfeiture order against the appellant in terms
of s 9 of the Divorce Act 70 of 1979.
[2] The parties were married to each other on 24 April 1993, the
proprietary consequences of their marriage being regulated by an
antenuptial contract in terms of which community of property and
community of profit and loss were excluded and the marriage was made
subject to the accrual system specified in Chapter 1 of the Matrimonial
Property Act 88 of 1984.
[3] In July 2003, the appellant (‘plaintiff’) instituted action against the
respondent (‘defendant’) in the Port Elizabeth High Court, claiming a
decree of divorce and ancillary relief. In his counterclaim, the defendant
claimed partial forfeiture by the plaintiff of the patrimonial benefits of the
marriage. On the evidence led at the trial, it was accepted on behalf of
both parties that the plaintiff was entitled to payment of R497 300 from
the defendant as being half of what was, at least, the difference between
the accruals of their respective estates. This payment by the defendant to
the plaintiff formed part of the order made by the trial court immediately
after the conclusion of the trial. The sole remaining question (which was
reserved for judgment at a later stage) was whether the plaintiff was

entitled to any further amount in this regard, this issue revolving around
the proceeds of two insurance policies that the defendant had taken out on
the life of his father who died on 24 July 2001. The respective insurers
had paid out an amount of R500 120 to the defendant in respect of each
policy.
[4] As regards this remaining question, Jennett J ultimately issued an
order directing that the plaintiff forfeit one-half of the proceeds of the first
policy (the Sanlam policy) and the full proceeds of the second policy (the
Fedsure policy). In consequence of this order, he directed the defendant to
pay to the plaintiff a further amount of R125 030 as the balance of her
share of the accrual of their respective estates. The defendant was also
ordered to pay the plaintiff’s taxed party and party costs. The appeal,
which comes before us with leave of the High Court, is directed at these
orders.
[5] The counterclaim for forfeiture is governed by the provisions of
s 9(1) of the Divorce Act 70 of 1979, which reads as follows:
‘When a decree of divorce is granted on the ground of the irretrievable break-down of
a marriage the Court may make an order that the patrimonial benefits of the marriage
be forfeited by one party in favour of the other, either wholly or in part, if the Court,
having regard to the duration of the marriage, the circumstances which gave rise to the
break-down thereof and any substantial misconduct on the part of either of the parties,

is satisfied that, if the order for forfeiture is not made, the one party will in relation to
the other be unduly benefited.’
[6] In Wijker v Wijker,1 this court considered the question whether
proof of ‘substantial misconduct on the part of either of the parties’ was
an essential requirement for a forfeiture order. It answered this question in
the negative, holding2 that the context and the subject-matter of s 9(1)
made it abundantly clear that the legislature never intended the three
factors mentioned in the section to be considered cumulatively. As regards
the approach to be followed by a court of appeal when hearing an appeal
in respect of a forfeiture order, Van Coller AJA stated the following:3
‘It is obvious from the wording of the section that the first step is to determine whether
or not the party against whom the order is sought will in fact be benefited. That will be
purely a factual issue. Once that has been established the trial Court must determine,
having regard to the factors mentioned in the section, whether or not that party will in
relation to the other be unduly benefited if a forfeiture order is not made. Although the
second determination is a value judgment,4 it is made by the trial Court after having
considered the facts falling within the compass of the three factors mentioned in the
section.’
(Emphasis added.)

1 1993 (4) SA 720 (A).
2 At 729E-F.
3 At 727E-F.
4 On the nature of the discretion exercised by the court in this regard, see Wijker at 727F-728C. Cf
Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA) paras 16-18 and Kirkland v Kirkland [2005] 3 All
SA 353 (C) paras 45-51.

[7] In relation to the trial court’s finding in the Wijker case that it
would be unfair to permit the appellant husband to share in the respondent
wife’s estate agency business while he had made hardly any contribution
towards its management, administration and profit-making, Van Coller
AJA held5 that --
‘The finding that the appellant would be unduly benefited if a forfeiture order was not
made, was therefore based on a principle of fairness. It seems to me that the learned
trial Judge, in adopting this approach, lost sight of what a marriage in community of
property really entails. . . . The fact that the appellant is entitled to share in the
successful business established by the respondent is a consequence of their marriage in
community of property. In making a value judgment this equitable principle applied
by the Court a quo is not justified. Not only is it contrary to the basic concept of
community of property, but there is no provision in the section for the application of
such a principle. . . . . The benefit that will be received cannot be viewed in isolation,
but in order to determine whether a party will be unduly benefited the Court must have
regard to the factors mentioned in the section. In my judgment the approach adopted
by the Court a quo in concluding that the appellant would be unduly benefited should
a forfeiture order not be granted was clearly wrong.’
(Emphasis added.)
[8] The three factors governing the value judgment to be made by the
trial court in term of s 9(1) thus fall within a relatively narrow ambit: they

5 At 731C-H.

are limited to (a) the duration of the marriage; (b) the circumstances
which gave rise to the breakdown thereof; and (c) any substantial
misconduct on the part of either of the parties. 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’. (Compare in this regard the
wording of s 7(2) of the Divorce Act dealing with maintenance orders
upon divorce which, apart from the fact that the list of relevant factors is
significantly longer, also entitles the court to have regard to ‘any other
factor which in the opinion of the court should be taken into account’. So
too, in terms of s 7(5), the list of factors which must be taken into account
by a court in the determination of which assets should be transferred by
one spouse to the other upon divorce, when the circumstances set out in
ss 7(3) and (4) justify the making of such a ‘redistribution order’, also
expressly includes ‘any other factor which should in the opinion of the
court be taken into account.’) The trial court may therefore not have
regard to any factors other than those listed in s 9(1) in determining
whether or not the spouse against whom the forfeiture order is claimed
will, in relation to the other spouse, be unduly benefited if such an order is
not made.
[9] The circumstances under which the two insurance policies were
taken out by the defendant were canvassed in some detail during the trial

and in the judgment of the High Court. The defendant’s father (‘Mr
Botha’) owned two farms in the Tarkastad area. He had two sons, the
defendant and his elder brother, Matthias Gysbert Botha (‘Gys Botha’),
and two daughters. He intended to bequeath one of his farms to each of
his sons, with the elder son having the choice of which farm he wanted.
However, as the defendant had no intention of farming, it was envisaged
that Gys Botha, who was also farming in the Tarkastad area, might buy
the defendant out if and when the sons inherited their father’s farms. It
was apparently suggested that Gys Botha might take out an insurance
policy on his father’s life in order to provide him with the finances
necessary to fund such a buy-out, but he was not willing to do so. Mr
Botha then suggested that an insurance policy be taken out on his life with
the proceeds thereof to be used to ‘compensate’ the defendant for the loss
of the farm which Mr Botha now intended to bequeath to Gys Botha.
After discussing various options in this regard, it was decided that the
defendant would take out the policy on his father’s life and, in April 1997,
the Sanlam policy (for R500 000) was taken out in the defendant’s name.
The defendant paid all the premiums due under the policy.
[10] Because of the increasing price of land, the defendant and Mr
Botha subsequently decided, in late 2000, that a second insurance policy
for the same amount should be taken out by the defendant on Mr Botha’s

life. The Fedsure policy thus came into being, the defendant once again
paying all the premiums due thereunder.
[11] Mr Botha died in July 2001 as a result of injuries sustained during
a motor accident. In terms of his will, Gys Botha inherited (inter alia) both
Mr Botha’s farms, while the defendant inherited only a cash amount of
R300 000, as did each of his sisters. The defendant initially contended that
the proceeds of the policies accrued to him as either an inheritance or a
donation from his late father and that, in terms of s 5(1) of Act 88 of 1984,
these proceeds had to be excluded from the accrual of the defendant’s
estate. This contention was, however, abandoned at the end of the trial.
[12] Having dealt with the factual background, as summarised above,
as well as the relevant statutory provisions and the judgment of this court
in the Wijker case, Jennett J came to the following conclusion with regard
to the factual portion of the s 9(1) enquiry:
‘There is no doubt, in my view, that, if an order for forfeiture is not made in respect of
the proceeds of the insurance policies, either wholly or in part, plaintiff will indeed be
benefited in that defendant will have to make some payment to her in respect thereof.
Before a forfeiture order can be made, however, I have to be satisfied that plaintiff will
not simply be benefited but that she will be unduly benefited in relation to defendant if
a forfeiture order is not made, and this is to be determined “having regard to the

duration of the marriage, the circumstances which gave rise to the breakdown thereof
and any substantial misconduct on the part of either of the parties.’’ ’
[13] According to the trial judge, neither party had been guilty of any
substantial misconduct. He also appeared to have regarded the duration of
the parties’ marriage (ten years) as a more or less ‘neutral’ factor, stating
that –
‘The parties were in their early twenties when they married. . . . If their marriage had
endured, the prospects are that they would have remained married for a long time and
in relation thereto a marriage of 10 years might be regarded as having been of fairly
short duration. Nevertheless a marriage of 10 years duration cannot be regarded as
being of very short duration.’
[14] With regard to the circumstances which gave rise to the
breakdown of the marriage, Jennett J referred to the differences in the
personalities of the parties, concluding that this factor, as a circumstance
giving rise to the breakdown of their marriage, was ‘of no relevance to the
issue that I have to decide.’
[15] A factor that was, however, held clearly to have been a
circumstance giving rise to the breakdown of the marriage, was the
plaintiff’s relationship with her mother-in-law. The plaintiff appeared to
feel that her mother-in-law was overly possessive of her son and that she

interfered unduly in their married life. According to the plaintiff, the
defendant’s family members frequently visited and stayed at the parties’
home with little notice and did not leave the parties to lead their own
lives. Indeed, in early 2000, matters had reached such a stage for the
plaintiff that she instituted divorce proceedings against the defendant.
Although the parties reconciled shortly thereafter, one of the conditions
set by the plaintiff for her withdrawing the divorce summons was an
embargo on her mother-in-law – according to the defendant, also on his
father and siblings – visiting the parties’ home. This was the situation
which prevailed at the time the Fedsure policy was taken out.
[16] Jennett J concluded as follows:
‘Under the above circumstances it seems to me that plaintiff would indeed be unduly
benefited if a forfeiture order is not made in respect of the proceeds of the second
insurance policy taken on defendant’s father’s life [the Fedsure policy]. I have already
mentioned the motivation behind the taking out of the policy, which was to benefit
defendant, and clearly not plaintiff and defendant as a unit, and to order defendant to
pay plaintiff half of the proceeds of the policy taken out at the time in circumstances
when plaintiff was estranged from defendant’s family would in my view result in
plaintiff being unduly benefited in relation to defendant. I will therefore order that
plaintiff forfeit any patrimonial benefit resulting from the payment of the proceeds of
the second insurance policy to defendant.

For much the same reasons I am also of the view that, if plaintiff were to share in the
full proceeds of the first insurance policy taken out on the life of defendant’s late
father [the Sanlam policy], she will be unduly benefited in relation to the defendant.
This insurance policy taken out during 1997 was, however, taken out at a stage when
relations between plaintiff and defendant’s family had not deteriorated to the extent
they subsequently did. I am mindful of the fact that in terms of their marriage contract
plaintiff is entitled to share in the full accrual of defendant’s estate unless a forfeiture
order is made against her, and in exercising what may be described as a value
judgment I conclude that plaintiff should forfeit [such] patrimonial benefit of the
marriage as would result from the payment of one half of the proceeds of the first
insurance policy to defendant.’
[17] In my view, it is quite clear that, while referring to the approach
laid down by this court in the Wijker case, the trial judge misdirected
himself in that he did not, in the exercise of his value judgement, confine
himself to the factors mentioned in s 9(1). On the contrary, it would appear
that, at the very least, one of the main reasons for his making the forfeiture
order against the plaintiff was what he accepted to be ‘the motivation
behind the taking out’ of the policies. While the strained relationship
between the plaintiff and the defendant’s family, in particular his mother,
was taken into account by Jennett J as ‘a circumstance giving rise to the
breakdown of the marriage’, it appears from his judgment that neither this
strain, nor the duration of the marriage, nor a combination of both, would
have led him to make the forfeiture order in question had he not had regard

to what he accepted, on the evidence, to be the reasons motivating the
taking out of the policies. The trial judge thus cannot be said to have
exercised his value judgement ‘having regard to the factors mentioned’ in s
9, as required by the judgment of this court in the Wijker case. It follows
that the appeal must succeed.
Order
[18] In the circumstances, the following order is made:
1.
The appeal is upheld with costs, including the costs of the
application for leave to appeal.
2.
Paragraphs (a) and (b) of the order made by the Port
Elizabeth High Court on 10 June 2004 are set aside and
substituted with the following:

(a) The defendant’s counterclaim is dismissed.

(b) The defendant is ordered to pay to the plaintiff an
amount of R500 120, in addition to the amount of
R497  300 payable by the defendant to the plaintiff in
terms of the order made on 14 May 2004 by the Port
Elizabeth
High
Court,
such
amounts
together

representing the plaintiff’s share of the accrual of the
parties’ respective estates.

B J VAN HEERDEN
JUDGE OF APPEAL
CONCUR:
Harms JA
Brand JA
Conradie JA
Lewis JA
In the Supreme Court of Appeal of South Africa

MEDIA SUMMARY – JUDGMENT DELIVERED IN SUPREME COURT OF APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:    9 March 2006
Status: Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal

H BOTHA v G J BOTHA

The Supreme Court of Appeal today handed down judgment in the matter of Botha v Botha. The
case revolved around the question of whether the appellant wife (Mrs Botha) should share in the
proceeds of two insurance policies which the respondent husband (Mr Botha) had taken out on the
life of his father who died in July 2001. Each of the insurers had paid out R500 120 to Mr Botha
upon his father’s death.

As the parties were married (in 1993) in terms of an antenuptial contract which excluded
community of property and of profit and loss, but made the marriage subject to the accrual system
provided for in Chapter 1 of the Matrimonial Property Act of 1984, Mrs Botha was entitled to share
equally in the proceeds unless she was ordered by the court making the divorce order to forfeit the
benefit of such proceeds. The Port Elizabeth High Court ordered Mrs Botha to forfeit one-half of
the proceeds of the first policy and the full proceeds of the second policy, with the result that Mrs
Botha would only share in the proceeds of the policies in the amount of R125 030. Mrs Botha
appealed against this order.

The Supreme Court of Appeal set out the provisions of s 9(1) of the Divorce Act of 1979, in terms
of which the court granting the divorce may order that the property benefits of the marriage be
forfeited by one party in favour of the other, either wholly or partially, if the court, having regard to
the duration of the marriage, the circumstances which gave rise to the breakdown of the marriage
and any substantial misconduct on the part of either of the parties, is satisfied that, if the forfeiture
order is not made, the one party will be unduly benefited in relation to the other party. The SCA
pointed out that the first step in applying s 9 is to determine whether or not the spouse against
whom the forfeiture order is sought will in fact be benefited – this is purely a factual issue. Once
that has been established, then the court must go on to determine, having regard to the factors

mentioned in s 9, whether or not that spouse will be unduly benefited in relation to the other
spouse if the forfeiture order is not made. This second step is a value judgement, but it must be
made by the court after having considered the facts falling within the ambit of the three factors
mentioned in the section. As had been held in an earlier judgment of the SCA, the court cannot
take into account factors falling outside the three listed factors in exercising its value judgement.

Mr Botha’s father had owned two farms in the Tarkastad area. He had two sons, Mr Botha being
the younger, and two daughters. He had intended to bequeath one of his farms to each of his
sons, but Mr Botha did not intend to farm and his elder brother did. The Port Elizabeth High Court
accepted on the evidence that the two policies had been taken out by Mr Botha, at his father’s
suggestion, with the purpose of compensating Mr Botha for the loss of the farm which his father
had decided to bequeath to his elder brother. Mr Botha had paid all the premiums due under the
policies. The father was involved in a fatal motor accident in 2001 and, in terms of his will, Mr
Botha’s elder brother did inherit both farms, while Mr Botha only inherited a cash amount of R300
000, as did each of his sisters.

According to the trial court, neither of the two parties had been guilty of any substantial
misconduct. The SCA held that, while the strained relationship between Mrs Botha and her
husband’s family, in particular her mother-in-law, was taken into account by the trial judge as ‘a
circumstance giving rise to the breakdown of the marriage’, it appeared from his judgment  that
neither this strain, nor the duration of the marriage, nor a combination of both, would have led him
to make the forfeiture order against Mrs Botha had he not had regard to the reasons which he
accepted, on the evidence,  to have motivated the taking out of the policies. By doing this, the trial
judge had not exercised his value judgement properly as he had had regard to factors outside the
ambit of the three factors mentioned in s 9 of the Divorce Act. Mrs Botha’s appeal thus succeeded
and the SCA replaced the order of the Port Elizabeth High Court with an order to the effect that Mr
Botha pay Mrs Botha one-half of the proceeds of each of the two policies.