My spouse ceased to be a member of a pension scheme before the finalisation of our Divorce but received his/her retirement benefits after the divorce was finalised.

Can I still enforce my rights regarding the pension interest that accrued whilst the divorce proceedings were underway?

1. Can the terms of the settlement that has been made an order of court simply be ignored because they were made as a result of a Justus error?

It is important to note that the above questions are not general questions but questions relating particularly to the facts of this case. Simple answer to the first question being YES. However, the second question might just not be as simple as it seems. Let us rather dive into the facts and how this court explained the principles of the questions this stated case brought before it.
The dispute in this matter arises from the interpretation of sections 7(7)(a) and 7(8) of the Divorce Act 70 of 1979 (“the Divorce Act”). The Parties were married to each other in community of property on 7 August 1998. Their marriage was subsequently terminated by an order of the Pretoria Regional Court on the 21st of July 2017. A Settlement Agreement signed by them on the 21st of July 2017 in Pretoria was, by agreement between them, made an Order of Court. With regards to the parties’ pension interests and annuity, the parties had agreed, and the Settlement Agreement had stated, inter alia, that:
“The Plaintiff was a member of the Development Bank of Southern Africa Provident Fund and, in terms of Section 7(8) of the Divorce Act 70 of 1979, the Defendant is entitled to 50% of the Plaintiff’s Provident Fund interest calculated as at the date of the divorce.

The Defendant was a member of the Investec Group Provident Fund, and, in terms of Section 7(8) of the Divorce Act 1979, the Plaintiff is entitled to 50% of the Defendant’s Provident Fund interest calculated as at the date of the divorce.
The Settlement Agreement contained all the terms and conditions agreed upon by the parties and that no variation, abandonment or waiver of rights or obligations, whether express or implied shall be binding unless contained in the Settlement Agreement or subsequently reduced to writing and signed by both parties.”

Notwithstanding the said Court Order, the fact that the parties’ marriage relationship was terminated on the 21st of July 2017 by a Court order incorporating a Settlement Agreement; the fact that during October 2017, the Defendant received payment of the said amount of R 1, 701.522.40 from his Pension Fund, the Plaintiff still had not, by the 5th June 2023, received the 50% of the Defendant’s pension interest as agreed by the parties in the Settlement Agreement and ordered by the court.

In terms of Section 2 of the Divorce Act, a divorce action shall be deemed to be instituted on the date on which the summons is issued, or the notice of motion is filed or delivered in terms of the rules of court. In this matter, the divorce action was commenced by the issue of summons under the case number GP/PTA/0748/2017. The summons was issued on the 30th of March 2017 by the Pretoria Regional Court. The parties therefore became “parties to a divorce action” within the meaning of section 7(7)(a) of the Divorce Act on the 30th of March 2017. The Defendant was served upon him a copy of the said divorce summons on the 31st of March 2017. When the Defendant retired on the 31st of March 2017, he was already a party to a divorce action and the provisions of section 7(7)(a) of the Divorce Act were already applicable to the “pension interest” of the parties.

The vesting of the patrimonial benefits occurs automatically in terms of the provisions of section 7(7)(a) of the Divorce Act. It occurs automatically by operation of the law, there is no need to even plead it. It is also not necessary to mention it in the settlement agreement. It Is also not the divorce or termination of a marriage relationship of the parties that vests the member’s spouse pension interest in the joint estate, for this has already been achieved by section 7(7)(a) on the day the member spouse became party to a divorce action. The day on which the marriage relationship of the parties is terminated by an order of court, in other words, the day of the divorce only serves to determine the day on which the joint estate is dissolved and secondly, the percentage of the pension interest that the parties are each entitled to.

It is not necessary that the pension interest of the non-member spouse be paid to her on the day of the finalisation of the divorce action because such an amount still must be calculated. It is enough though if on the day of the divorce order the provisions of section 7(7)(a) are considered. It is irrelevant that the pension interest was paid to the Defendant only in October 2017. Now, in this case where Investec paid the pension interest to the Defendant in October 2017, the duty to pay the Plaintiff her 50% share of the pension interest of the Defendant fell upon the Defendant from the 21st of July 2017 and continued until it was discharged by the Defendant.
The court in this matter refused to express its opinion on the question of what remedies the non-member spouse had available to enforce his or her rights regarding the pension interest. The court can only observe that such a party has indeed a remedy.
Whether the terms of the settlement agreement that have been made an order of court can simply be ignored because they were a result of Justus error, as the Defendant claimed the simple answer is NO. The terms of a settlement agreement that have been made an order of court may not be simply ignored. Section 165(5) of the Constitution of the Republic of South Africa provides that:
“An order or decision issued by a court binds all persons to whom, and organs of state to which it applies.”
A court order is binding until it is set aside by a competent court and must be complied with, even if the party against whom this order is granted believed it to be invalid. This court emphasized the responsibility of the citizens of the country, especially parties involved in litigation, to respect the rule of law and pursue an appeal or an application to amend or to rescind a Court Order if they genuinely believe a decision to be wrongful or illegal.

In Rapholo v National Director of Public Prosecutions and Others, the court as per Neukircher AJ emphasized that it is the most basic and fundamental principle of law that all orders of court must be complied with properly until they are set aside and that the most obvious reason for this would be that the integrity of the court system relies upon the upholding of and compliance with the judgements of our courts.

In conclusion, all court orders must be complied with. This means that the Defendant in the current case, must take all reasonable steps to pay out the plaintiff 50% of his pension interest in accordance with a court order. Failure to do so will result in the Defendant corking a snook at the court that made the order and makes himself guilty of contempt of court. With regards to the justus error, our courts hold that an error which vitiates the contract must not only be material but must be reasonable. This requirement of justus error means that a party may not claim the nullity of a contract based on an error for which he is to blame, in the sense that, by his conduct, he has lead the other party to believe that he was binding himself which is exactly what happened in this case.