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Did the Transfer of Pension Interest Fulfill the Settlement Agreement in M.W.H v N.E.H and Another [2024] ZAFSHC 6?

In the case of M.W.H v N.E.H and Another ([2024] ZAFSHC 6), a pivotal legal question surrounding a divorce settlement and the compliance with its terms was brought before the High Court of South Africa, Free State Division, Bloemfontein. This case sheds light on the intricate legal considerations involving pension interests, tax implications, and the fulfilment of settlement agreements in divorce proceedings.

Overview of the Case

M.W.H (the appellant) and N.E.H (the first respondent) were embroiled in a dispute over a settlement agreement that arose from their divorce. The agreement stipulated that the appellant was to pay the first respondent a sum from his pension policies. A controversy arose when the first respondent received less than the agreed amount, attributed to tax deductions before payment. The appellant argued that he had fulfilled the agreement, contending that the tax was payable by the first respondent, given the transfer of interest in the policies to her.

The High Court’s Decision

The High Court, in a judgment delivered by Mthimunye, AJ, sided with the appellant. The court found that the settlement agreement effectively transferred the appellant’s interests in the pension policies to the first respondent. Consequently, any tax implications arising from this transfer were to be borne by the first respondent, not the appellant. The court’s interpretation hinged on the definitions within the Pension Fund Act and the Divorce Act, affirming that retirement annuities fell within these definitions and thus were subject to the stipulated tax implications.

Key Takeaways and Quotes

  1. Transfer of Pension Interest: The court held that the settlement agreement did transfer the appellant’s interests in the pension policies to the first respondent. This was a critical point of contention, with the court finding that such a transfer made the first respondent liable for the tax on these funds.
  2. Compliance with the Settlement Agreement: “In my view, it follows therefore that if the interests in the policies were transferred to the first respondent, such would be taxable in the hands of the first respondent.” – Mthimunye, AJ. This quote underlines the court’s rationale that the appellant had indeed complied with the terms of the settlement agreement by accounting for the tax deductions.
  3. Understanding Pension Funds in Divorce Settlements: The case elucidates the legal framework governing pension funds in the context of divorce settlements, emphasizing the importance of clear terms regarding tax liabilities.


  1. What does the case M.W.H v N.E.H and Another [2024] ZAFSHC 6 entail?
    • It revolves around a dispute regarding the fulfillment of a divorce settlement agreement, particularly concerning the payment from pension policies and the associated tax implications.
  2. What was the court’s decision?
    • The court ruled in favor of the appellant, indicating that he had complied with the settlement agreement as the tax deductions were deemed the first respondent’s responsibility.
  3. What implications does this case have for divorce settlements involving pension interests?
    • It highlights the necessity for explicit terms in settlement agreements regarding who bears the tax liability for pension interests transferred between parties.
  4. Does this case set a precedent?
    • While it provides valuable insights into handling pension interests in divorce settlements, each case’s unique facts will determine its applicability.
  5. Can a party be liable for tax on transferred pension interests in a divorce settlement?
    • Yes, if the settlement agreement effectively transfers the pension interest to a party, that party can be liable for the associated tax, as demonstrated in this case.


M.W.H v N.E.H and Another serves as a crucial reminder of the complexities surrounding divorce settlements, especially those involving financial instruments like pension policies. It underscores the need for clear, comprehensive agreements that explicitly address all potential tax liabilities. For individuals navigating similar disputes, this case underscores the importance of obtaining legal advice that fully considers the implications of transferring pension interests in divorce proceedings.


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