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Man who spent family business earnings with his mistress forfeits his share of ex-wife’s pension fund

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Published May 29, 2023


Pretoria – A Limpopo man who cheated on his wife and spent money from their family business with his mistress, will not be getting a share of his ex-wife’s government pension fund.

The former couple got married in October 1985 in community of property. After 31 years of marriage, Mr M instituted divorce proceedings in the Limpopo High Court in Polokwane and also claimed 50% of the joint estate.

Mrs M brought a counter-claim where she wanted Mr M to forfeit her government pension fund.

However, her claim was dismissed and Mr M was granted 50% of her pension fund.

She appealed the ruling, which was denied. Disenchanted, she approached the Supreme Court of Appeal.

In her appeal, Mrs M mentioned how Mr M cheated on her with their former employee, Eva Leshiba, for nine years and also fathered a child with her.

The child was 5 years old when the divorce was filed.

Mrs M said she came to know about the affair through an anonymous call in 2007.

She confronted Leshiba, who didn’t deny the affair, but admitted it in a rather derogatory manner. But Mr M denied the affair.

In an effort to fix her marriage, she sought counselling.

She said that during the second session of counselling, Mr M informed the counsellor that a man who did not have an extramarital affair was a “fool”.

Ultimately, nothing would stop him from having mistresses in his life.

Mrs M said she realised that her efforts at reconciliation with Mr M were futile.

“From there I could see that we were heading nowhere with this session. That is when I told my husband that I can see that you are still adamant that there is no way that things can change.”

She said she told him she didn’t want to get infected with an STD, so she would no longer continue engaging in sexual intercourse with him until he stopped cheating.

In March 2008, she took the bull by its horns and fired Leshiba from her job, which in turn made Mr M livid.

He informed Mrs M that he was in love with Leshiba and planned to marry her, build her a house and start a business with her.

She said that’s when the grand scale fleecing of the joint estate started.

Subsequently, Mr M stopped depositing money into Mrs M’s account like he used to. This occurred at a time when their cash loan business was flourishing.

At this stage, the family business was making between R20 000 and R40 000 a month.

They ran a cash loan business, a poultry farm, and a spaza shop.

In retaliation, Mr M gave Leshiba money to start a cash loan business called Mokgatlou Cash Loans, which operated in direct competition with the family business.

Mrs M said her ex-husband financially and physically assisted Leshiba in her cash business to the detriment of the family business and the joint estate.

The Mokgatlou cash loan business was followed by Malele Funeral City Parlour established by Mr M together with Leshiba.

Leshiba owned 50% while Mr M had 20% and 30% was for other partners.

She said while Leshiba was still working for their family business, she purchased a stand close to their matrimonial home. Mr M then built a double-storey house for Leshiba on that land and the house was partially completed around November 2012.

At that time, Mr M sold nine cattle out of their 73 cattle kept in Dendron at a local chief. The R34 000 made from the sale, was deposited into one of Leshiba’s business bank accounts.

Coincidentally, the sale of livestock happened at the time when the roof of Leshiba’s house was constructed.

Mrs M testified that Mr M was building a business empire with Leshiba, while she was struggling to make ends meet.

She then approached the Maintenance Court in respect of their minor daughter’s educational needs. During the hearing, she found out that Mr M had six other children out of wedlock.

He informed the court that he was maintaining them at R300 monthly and was willing to give Mrs M R300 as well.

However, Mrs M was awarded R750 every month. In 2015, Mr M was again ordered by the Maintenance Court to pay for their daughter’s university fees from the R500 000 they had invested while running the family business. Mr M had initially refused to pay for the fees.

She said during their time in marriage, she contributed 80% towards the building of the matrimonial home and made provision for her family members, and added Mr M on her medical aid.

According to her, Mr M did not contribute proportionately towards the running of the household and the maintenance of the children.

During the time when Mr M was involved in Leshiba’s business deals, she said she had no access to their cash loan business and unbeknown to her, their cash loan business had been deregistered in November 2015 by Mr M.

In response, Mr M denied having an extramarital affair with Leshiba, he said they were just friends. He visited her, assisted her in collecting money from clients and assisted her in her other business interests.

He denied having business interests with Leshiba. However, under cross-examination when he was confronted with documentary evidence, he conceded to have established businesses with Leshiba.

It was also heard that Mr M misled the high court when he claimed to be working at the family business, when he had in fact deregistered the company.

He eventually admitted that he was working at Leshiba’s businesses and claimed to have deregistered the family business due to stress it was causing him.

When the high court dismissed Mrs M appeal, the three judges said of her own accord, Mrs M had given Mr M permission to continue having extramarital affairs until he got tired of them.

The judges said she condoned the extramarital affair with Leshiba for the past nine years.

The full court concluded that Mrs M reliance on the long enduring extramarital affair did not suffice to support her claim for an order for forfeiture of benefits.

However, Judge Yvonne Thokozile Mbatha was of the view that by channelling assets of the joint estate to set up businesses with Leshiba, Mr M’s actions constituted misconduct.

Furthermore, Mbatha said there was no evidence of Mr M having made any contribution towards Mrs M’s pension.

Mbatha said Mrs M made direct financial contributions to the joint estate while Mr M used almost all his financial resources for the benefit of Leshiba.

“The respondent (Mr M) considerably eroded the value of the joint estate, and used the assets of the joint estate as if he had the marital power to do so... The respondent’s evidence fell short in various ways, including that it was inconsistent, contradictory and did not support his claim for a half share in the applicant’s pension interest,” Mbatha said.

Mbatha ordered that Mr M to forfeit his 50% share of Mrs M’s pension benefits.