Courts Must Only Adjudicate Based on Pleadings and Trial Issues

The SCA emphasized that courts should not pronounce on claims or defences not presented in the pleadings.

Introduction:

In the Mashola case (22/2022), the Supreme Court of Appeal (SCA) had to determine whether a partial forfeiture order should be imposed on the husband’s pension interest/benefit held by the Government Employee Pension Fund (GEPF) following their divorce. This article discusses the legal principles involved in the case and analyses the court's decision.

Background and Evidence Presented:

During the trial, it was revealed that the husband had engaged in a long-standing extramarital affair, which had significant impacts on their marital estate. He made minimal financial contributions to the joint estate and transferred assets to his mistress. The wife had to resort to the maintenance court to compel her husband to contribute to the maintenance of their children.

Legal Principles Applicable:

The Divorce Act contains three key provisions relevant to this case. Sections 7(7) and 7(8) address the entitlement of spouses to a half share in each other's pension interests, while section 9(1) deals with the forfeiture of benefits. In the Wijker v Wijker case, the Appellate Division clarified the legal principles relating to section 9(1), establishing two key steps for the court to consider.

Analysis of the Decision:

The full court dismissed Mrs Mashola's appeal, arguing that she had condoned her husband's extramarital affair for nine years, which undermined her claim for a forfeiture order. However, the SCA found that condonation was not raised in the pleadings or during the trial before the High Court. The SCA emphasized that courts should not pronounce on claims or defences not presented in the pleadings, highlighting the misdirection of the full court in this case.

Furthermore, the full court failed to apply the two-pronged approach outlined in the Wijker case. The SCA held that the wife did not condone the extramarital relationship on every interpretation of the facts. The court considered various factors, including the humiliation caused by the affair being conducted publicly, the depletion of the joint estate, the husband's financial support of his mistress at the expense of his family, and Mrs Mashola's sole dependence on her salary.

Conclusion:

This judgment underscores the importance of courts adhering to the principle of adjudicating only on issues raised in the pleadings or during the trial. Pronouncing on claims not presented by the litigants constitutes an impermissible misdirection. In this case, the SCA upheld the appeal, finding that Mr. Mashola's substantial misconduct and Mrs. Mashola's direct financial contributions to the joint estate satisfied the requirements for a partial forfeiture order under section 9(1) of the Divorce Act.

The Process to Wind up a Deceased Estate

Notification and Death Certificate:

If your loved one passed away in a hospital, the medical practitioner will complete a BI-1663 form (notification of death) to certify the death. You will receive a copy.  If your loved one did not pass away in a hospital, the mortician will complete the form and hand it to the next of kin. You must take the BI-1663 form, with the deceased’s original valid South African identity card to the Department of Home Affairs which issues a death certificate. The funeral home or the Department of Home Affairs stamps ‘Deceased’ on the identity card or document of the deceased and punches a hole in the identity card.

Reporting the estate:

The estate of a deceased person must be reported to the Master of the High Court’s office in the area where the deceased lived. within 14 days from the date of death.

 

The person nominated to wind up the estate (the executor or his or her agent – normally a lawyer, accountant, or trust company) reports the estate at the offices of the Master, who issues Letters of Executorship in favour of the executor or executrix, authorising him or her wind up the estate.

 

If an executor is not specified in the will of the deceased, the Master will appoint one on the deceased’s behalf. The family may also nominate an executor if there is no will.

 

The following documents must be lodged:

 

• An original or certified copy of the Death Certificate and Identity Document.
• An original or certified copy of the marriage certificate.
• A declaration of marriage by the surviving spouse indicating the type of marriage.
• The original will and any annexures that may apply.
• A completed next-of-kin affidavit if there is no will in place.
• A completed inventory.
• A declaration to confirm that the estate has not been reported at another Master’s office.

 

Letters of executorship:

 

The master then issues letters of executorship authorizing the nominated executor to wind up the estate of the deceased. In estates worth less than R250,000 the Master issues Letters of Authority and the formalities are much less stringent.

 

Notice to creditors:

 

On receipt of the Letters of Executorship, the executor arranges the publication of a notice to creditors in a local newspaper and government gazette, inviting them to submit any claims against the estate, within 30 days.

 

Estate Account Submission:

 

Within 6 months of the issuing of the Letters of Executorship, the executor must submit an estate account (liquidation and distribution account) to the Master. This account gives effect to the wishes of the deceased in his will (or the laws of intestacy if there is no will).

 

Approval and Advertisement:

 

Once the Master approves the account, the executor has it advertised, and it lies for inspection for 21 days. If no objections are received within 21 days, he or she pays out the heirs and beneficiaries and transfers any fixed property.

 

Finalising the estate:

The executor then lodges proof of advertisement, proof of payment to heirs and creditors, bank statements, a tax clearance certificate and other required documents and asks the Master to confirm that the estate may be regarded as finalised.

The following words are commonly used when dealing with deceased estates:

Estate	the deceased’s assets and liabilities at the time of his or her death
Testator	a man who makes a will
Testatrix	a woman who makes a will
Dying testate	when a person dies leaving a will
Dying intestate	when a person dies without leaving a will
Executor	a man who distributes the estate under a will
Executrix	a woman who distributes the estate under a will
Letters of Executorship	letters issued by the Master, authorising the executor to wind up the estate