An aggrieved cheating ex-wife, who was on the verge of losing a portion of her Pretoria house she shared with her ex-husband, has taken the matter on appeal at the North Gauteng High Court in Pretoria.
The woman has been spared for now, after the high court ordered that the matter be sent back to the magistrate court so that the court could first explore and determine the factual position around the ownership of the property and make an informed decision regarding the forfeiture of the house.
The former couple were married in community of property in September 2016. They had no children in the marriage.
The wife instituted divorce proceedings and claimed a decree of divorce with the division of the joint estate.
The husband lodged a counter-claim for forfeiture of matrimonial benefits. He wanted the wife to forfeit a share of the house in Pretoria and his pension benefits.
When the matter was heard in the Pretoria North Magistrate’s Court, the wife testified that she was involved in adulterous relationships and that she never disclosed her HIV positive status to her now ex-husband.
Following her testimony, the magistrate was not impressed with her testimony, which was found to be contradictory, untruthful and unreliable.
The court found that the ex-husband left a good impression on the court during his testimony, as he was reliable and an honest witness.
The court granted the divorce, however, the magistrate found that the wife will be unduly benefiting if she receives a share from the husband’s pension and from the property.
Unhappy with the outcome, she approached the high court on appeal.
Initially, she wanted to appeal the the forfeiture of the house and pension fund, but she eventually abandoned the pension benefits appeal.
During the appeal, Judge Mandlenkosi Motha said it cannot be ruled that the wife will be unduly benefiting at the expense of the husband when the court doesn’t possess the knowledge of when the property was bought.
He said what was clear, was that the house was not purchased during the marriage.
Having said that, he added that the magistrate needed to have engaged on a fact-finding mission of when the acquisition of the property was made.
“Regarding the forfeiture of the house, we are of the view that there was a misdirection occasioned by the failure to canvass the afore-mentioned issue.
“One cannot forfeit the property one brought into the marriage. One only forfeits pecuniary benefits that one would otherwise have derived from the marriage,” said Motha.
As a result, Motha sent the matter back to the magistrate’s court so that the court can explore the factual position around the ownership of the property and make an informed decision regarding the forfeiture of the house.
IOL