IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: 18272/2007

and

GAUNTLETT, A J

[2] Nearly 12 years later, the applicant has applied for a declaratory order sought (in its latest form) in these terms

"1. 	The respondent's pension interest (under pension number 	612057 in the Cape Town Municipal Pension Fund) as at 	15 May 1996 formed part of the parties' joint estate.
2.	Upon the parties' divorce, half of the pension interest vested in the applicant.
3.	The applicant is entitled to payment of half of the pension fund [already paid out to the respondentjas at 15 May 1996.
4.	The applicant is granted leave to apply on these papers, duly supplemented, for an order directing the respondent to pay to the applicant an amount equivalent to half of the pension benefit (once the applicant has ascertained the Rand value of the pension benefit).

(The phrase which I have inserted into paragraph 3 above is to clarify the fact that the claim is directed sofely against the respondent and not the pension fund itself, in view of the fact that a payout of the pension interest occurred a number of years ago to the respondent).

[3] In argument the relief sought was slightly adjusted, in terms of the formulation that I have just outfined, without objection.

[4] The pension benefit in question, it is common cause, has been paid to the respondent, and no portion has been received by the applicant. The applicant seeks no relief against the pension fund itself. As it happens, the applicant notified the pension fund soon after the divorce - attaching the decree of divorce and a notice of intention to amend which, as J indicate below, in the circumstances was not itself moved, clarifying the fact that the claim to half of the joint estate specifically included the pension interest - but nothing turns on that now.

[5] The first question which arises for determination is whether (as the respondent contends) the fact that the present relief was not sought at the time the decree of divorce was granted bars the application.

[6] Section 7(7)(a) of the Divorce Act, 70 of 1979 ("the Act") provides:
"In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets."

(The provisions of sub-sections (b) and (c), counsel agree, have no application in this matter).

[7]    Section 7(8) provides further:

"(8)   Notwithstanding the provisions of any other law or of the rules of any pension fund -

"the benefits to which that party as such a member would have been entitled in terms of the rules of that fund, if his membership of the fund would have been terminated on the date of the divorce on account of his resignation from his office").

"This was done on a very single 'rough and ready' and unscientific basis. Respondent and I simply divided up these items on the basis of convenience which we were prepared to accept was roughly fair in the circumstances, other than in respect of the motor vehicle and immovable property which respondent dealt with on his own, as dealt with below".

(She testifies in the latter respect that the parties' immovable property was in fact sold by the respondent, and she received no part of the proceeds).

[14] No case is made out of a waiver or abandonment by the applicant of her rights under the order.

GAUNTLETT, AJ