• Law Reports
  • Radebe and Another v Sosibo NO and Others …

Radebe and Another v Sosibo NO and Others (2011 (5) SA 51 (GSJ)) [2011] ZAGPJHC 17; A5036, 2009/21232 (18 March 2011)

80 Reportability
Trusts and Estates
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Succession — Intestate succession — Heirship determination — Appeal against finding that husband is sole heir of intestate estate — Antenuptial contract excluding immovable property from accrual system — Parents of deceased claiming transfer of property based on alleged intention of deceased — Court finds that exclusion from accrual does not affect intestate succession rights — Husband entitled to inherit entire estate as sole heir.

Comprehensive Summary

Summary of Judgment


Introduction


The matter concerned an appeal to the South Gauteng High Court, Johannesburg, against a judgment of the same division delivered by Kekana AJ. The appeal was decided by Satchwell J (with Willis J and Monama J concurring).


The appellants were the deceased’s parents, Mr and Mrs Radebe, and the first respondent was the deceased’s surviving spouse, Mr Siphosenkosi Emmanuel Sosibo N.O. The second and third respondents were the Master of the High Court of South Africa (South Gauteng High Court) N.O. and the Registrar of Deeds, respectively.


The procedural history arose from the administration of the estate of Mrs Sosibo (born Millicent Jabulile Radebe), who died intestate shortly after her marriage to Mr Sosibo. A liquidation and distribution account ultimately accepted by the Master provided for transfer of a particular immovable property (registered in the deceased’s name) to her parents. Mr Sosibo applied in the court a quo to set aside that account on the basis that he was the sole intestate heir. The court a quo upheld his application, set aside the account, and ordered transfer of the property to him. The parents then appealed.


The dispute’s general subject matter was the interaction between the accrual system under the Matrimonial Property Act 88 of 1984 and intestate succession, particularly whether an asset-exclusion clause in an antenuptial contract could prevent the asset from devolving upon a surviving spouse where the deceased left no will, or could otherwise operate as a disposition in favour of third parties (the deceased’s parents).


Material Facts


Mr Sosibo and Mrs Sosibo were married on 11 November 2006. Their matrimonial regime was out of community of property and subject to the accrual system. Mrs Sosibo died on 28 December 2006 and left no written will.


Before the marriage, an antenuptial contract was concluded and registered (registered in the Deeds Office on 7 November 2006). The contract recorded commencement values and included a clause which, for purposes of section 4(1)(b)(ii) of the Matrimonial Property Act, excluded a specific immovable property from the accrual system, namely the property situated at 1263/4 Milkwood Street, Ormonde Extension 24 Township, registered in the name of the intended wife (Millicent Jabulile Radebe).


After the death, Mr Sosibo was appointed executor and engaged an accounting firm to administer the estate. A first liquidation and distribution account was rejected by the Master, not because it failed to transfer the property to the parents, but because it failed properly to address the accrual calculation in light of the exclusion clause. A further final liquidation and distribution account was then prepared and accepted by the Master, and it reflected that the disputed immovable property would be transferred to the deceased’s parents.


The court treated the existence and wording of the exclusion clause, the deceased’s intestacy, and the sequence of the estate accounts as undisputed. The parties disputed whether the exclusion clause, alone or in combination with alleged family discussions and understandings, could be treated as a form of testamentary disposition, donation, or other arrangement in favour of the parents. The appeal court held it was unnecessary to make credibility findings on the family’s recollection of the deceased’s intentions because the appeal turned on the legal effect of the antenuptial contract’s wording and applicable statutory formalities.


Legal Issues


The central legal questions were whether the antenuptial contract’s clause excluding the immovable property from the accrual system had any effect on the devolution of that property upon the deceased’s death, and specifically whether it could prevent the property from passing to the surviving spouse under intestate succession.


Closely related to this were questions of legal characterisation and compliance with formalities, namely whether the clause could constitute, or be treated as evidencing, a testamentary disposition (so that the estate would be partly testate), or a donation (including a donatio mortis causa), or a contract for the benefit of a third party (a stipulatio alteri) in favour of the parents.


These issues primarily concerned questions of law and the application of law to largely common-cause facts, particularly the proper interpretation and legal effect of the antenuptial contract within the statutory frameworks governing accrual, wills, and alienation of land.


Court’s Reasoning


The court began by explaining the nature of the accrual system. Where spouses marry out of community of property subject to accrual, each spouse retains a separate estate during the marriage, and the right to share in the other spouse’s accrual arises only upon dissolution of the marriage by death or divorce. On dissolution, the accrual in each spouse’s estate is calculated (broadly, the increase from commencement value to dissolution value), and the spouse with the smaller accrual obtains a claim equal to half of the difference between the accruals. The court emphasised that this accrual calculation is a matrimonial patrimonial adjustment that precedes and is conceptually distinct from succession.


Applying those principles, the court held that the exclusion clause operated only within the accrual calculation. The effect of excluding the immovable property was that it, and its increase in value, would be ignored for accrual purposes. The court noted that, given the very short duration of the marriage, the financial position of the spouses likely did not change much, but it remained necessary in principle to calculate a possible accrual claim before addressing the distribution of the deceased estate by succession. Crucially, however, once the accrual adjustment is determined, the remaining question is how the deceased’s estate devolves by will or by intestate succession, and that devolution is not altered merely because a particular asset was excluded from accrual.


The court relied on section 4(2) of the Matrimonial Property Act to underscore that the accrual of the deceased spouse’s estate is determined before giving effect to testamentary dispositions, donations mortis causa, or intestate succession. It further reasoned that the matrimonial property regime chosen by spouses has no bearing on the surviving spouse’s right to succeed to the deceased spouse’s estate, whether testate or intestate. The exclusion of an asset from accrual therefore does not, without more, create a different succession outcome for that asset.


Turning to the appellants’ reliance on the deceased’s alleged intention, the court treated the argument as essentially seeking to elevate the exclusion clause into a mechanism for divesting the deceased of ownership in favour of the parents or for bequeathing the property to them on death. The court declined to adopt that approach. It reasoned that the clause was part of a matrimonial regime arrangement between spouses and did not purport to dispose of the property on death, identify heirs, or create rights in third parties. The absence of any reference to the parents in the contract reinforced that it was not framed as a benefit-conferring clause to them.


On the argument that the estate was partly testate, the court accepted that an estate can be partly testate and partly intestate, but held there was no valid will or testamentary disposition. While the court acknowledged that antenuptial contracts have historically sometimes contained provisions relating to devolution on death (and may in certain contexts provide an exception to the general invalidity of a pactum successorium), it held that any such succession clause would still have to comply with the formalities for wills under the Wills Act 7 of 1953. The exclusion clause did not mention death, did not nominate beneficiaries, and did not purport to be a bequest. Additionally, the antenuptial contract was not signed by the deceased on each page with the requisite witnessing, and a power of attorney authorising another to sign could not supply the missing compliance for a will. The court further rejected any suggestion that the Master had “accepted” the antenuptial contract as a will; on the court’s reading, the Master had not done so.


The court then addressed alternative characterisations advanced on behalf of the parents, including inter vivos bequest, donatio mortis causa, and stipulatio alteri. It held that there were no third parties named in the antenuptial contract and no indication that a contract for the benefit of third parties was concluded. Even if such a structure were suggested, any transfer of rights in land would have to comply with formal requirements applicable to alienations of land. In this respect, the court held that any attempt to treat the clause as a donation or transfer of the immovable property would run into the formalities required by the Alienation of Land Act 68 of 1981, which requires a deed of alienation signed by the parties for an alienation of land to be of force and effect. Similarly, if the argument was framed as a donatio mortis causa, the court held that there was no written and formally compliant instrument evidencing such donation, and that the Wills Act formalities would still be implicated.


The court’s evaluative judgment included a contextual explanation of why spouses might exclude assets from accrual for reasons unrelated to succession, such as protection in the event of divorce, insolvency concerns, or retaining the ability to dispose of an asset by will. On this approach, the exclusion clause was consistent with ordinary matrimonial planning and did not, on its wording, support an inference of a disposition to the parents.


On costs, the court exercised a discretion not to award punitive costs against the parents. While it considered the litigation unnecessary in a legal sense, it accepted the emotional and familial context as a reason not to impose a punitive scale.


Outcome and Relief


The appeal was dismissed. The effect was that the decision of the court a quo remained in place, namely that the liquidation and distribution account (which had provided for transfer to the parents) was to be set aside and the surviving spouse’s entitlement in the intestate estate was upheld.


The court ordered that the appeal was dismissed with costs on the ordinary scale. A request for punitive costs was refused.


Cases Cited


Ex Parte Moodley and another; Ex Parte Iroabuchi and Another 2004 (1) SA 109 (W)


Oost v Reek and Snideman NNO 1967 (1) SA 472 (T)


Jordaan v De Villiers 1991 (4) SA 396 (C)


Dockrat v Willemse et al 1989 (1) SA 480 (N)


Legislation Cited


Deeds Registries Act 47 of 1937 (section 45(1))


Matrimonial Property Act 88 of 1984 (sections 4(1)(b)(ii) and 4(2))


Wills Act 7 of 1953


General Law Amendment Act 70 of 1968 (section 5)


Alienation of Land Act 68 of 1981 (section 2)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that an antenuptial contract clause excluding an immovable property from the accrual system regulates only the spouses’ accrual calculation upon dissolution of the marriage and does not determine or alter the devolution of that asset on death.


It further held that the clause did not constitute a valid testamentary disposition, nor did it evidence a donation, donatio mortis causa, or stipulatio alteri in favour of the deceased’s parents. In the absence of a will complying with the Wills Act and in the absence of a land alienation complying with the Alienation of Land Act, the deceased died intestate and the surviving spouse’s succession claim could not be defeated by reliance on the exclusion clause.


LEGAL PRINCIPLES


The accrual system under the Matrimonial Property Act operates as a patrimonial adjustment between spouses upon dissolution of the marriage. The calculation of accrual, including the effect of excluded assets, is conceptually and legally distinct from the subsequent distribution of a deceased spouse’s estate by testate or intestate succession.


An exclusion of an asset from accrual does not, without a separate valid juristic act complying with applicable formalities, remove that asset from the deceased’s estate for succession purposes or redirect its devolution to third parties.


Where it is contended that an antenuptial contract effects a testamentary disposition, the relevant provisions must comply with the formalities required by the Wills Act. Absent compliance and absent wording that in substance disposes of property on death to identified beneficiaries, an antenuptial contract clause addressing accrual cannot be treated as a will or partial will.


Any attempted transfer or donation of immovable property, whether framed as a contract for the benefit of a third party or otherwise, must comply with the formalities prescribed by the Alienation of Land Act for alienations of land. Assertions of intention or family understandings cannot substitute for statutorily required formalities.

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2011
>>
[2011] ZAGPJHC 17
|

|

Radebe and Another v Sosibo NO and Others (2011 (5) SA 51 (GSJ)) [2011] ZAGPJHC 17; A5036, 2009/21232 (18 March 2011)

Links to summary

IN THE
SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
APPEAL CASE NUMBER: A5036
CASE NO: 2009/21232
DATE:18/03/2011
In
the appeal matter between:
RADEBE,
BOBOZA ALPHEUS
RADEBE,
NOMSA
First
Appellant
Second
Appellant
And
SOSIBO,
SIPHOSENKOSI EMMANUEL N.O.
THE
MASTER OF THE HIGH COURT OF SOUTH AFRICA (SGHC) N.O.
THE
REGISTRAR OF DEEDS
First
Respondent
Second
Respondent
Third
Respondent
JUDGMENT
SATCHWELL J:
Introduction
This is an appeal against a decision in this division (per
Kekana AJ) which found that the applicant (“Mr Sosibo”)

is the heir to the entire intestate estate of his late wife (“Mrs
Sosibo”). Accordingly the court
a quo
ordered that
the final liquidation and distribution account prepared by the
Master of the High Court be set aside and that
Mr Sosibo was
entitled to take transfer of certain immovable property from the
deceased estate.
At issue is the status and import of certain provisions in an
antenuptial contract entered into by Mr and Mrs Sosibo prior
to
their marriage and which provisions excluded the immovable
property in question from the accrual system arising from
their
intended marriage as well as the impact, if any, of such property
exclusion clause on the disposition of the intestate
estate of the
late Mrs Sosibo.
The parents of the late Mrs Sosibo, the appellants, (Mr and Mrs
Radebe) contend that they are entitled to take transfer of
the
immovable property which was registered in the name of their late
daughter which she had excluded from the matrimonial
marital
regime in the antenuptial contract and which, it is submitted, she
had bequeathed or donated to them during her lifetime.
Background
Mr and Mrs Sosibo were married on 11
th
November 2006.
Their matrimonial regime was one of out of community of property
subject to the accrual system. Mrs Sosibo died
on the 28
th
December 2006. She left no written last will and testament.
Subsequent to Mrs Sosibo’s death, her husband was appointed
executor of her estate. He instructed the firm , ‘ Accounting

and Taxation Consulting CC’, run by one Mr Van Vyk, to attend
to administration of the deceased estate. A first and final

liquidation and distribution account was prepared but was rejected
by the Master of the High Court
1
( Second Respondent in this Appeal) on the basis that the account
had failed to calculate the accrual claim (if any) having
regard
that the immovable property was excluded therefrom. The relevant
portion of the report reads:
‘
kindly take note that under
the accrual system there is not division of assets when a marriage is
dissolved, calculate a possible
accrual claim and amend cause for
distribution. In terms of clause 4 of the antenuptial contract dated
27 October 2006 provide
that immovable property is excluded from the
accrual system. Take note that your application in terms of
section
45
(1) of the
Deeds Registries Act 47 of 1937
reflects that the
parties were married in community of property.
Section 45
(1) has
been rejected (Pg 111).’
2
It must be noted that the Master did not, as submitted on behalf of
Mr and Mrs Radebe, reject the account because it had failed
to
provide for transfer of the immovable property into their name.
Thereafter, a further final liquidation and distribution account
was prepared acceptable to the Master which indicated transfer
of
the contested immovable property into the names of the late Mrs
Sosibo’s parents, Mr and Mrs Radebe.
It is the disposition of this asset in the deceased estate, the
immovable property, which has given rise to the present dispute.
Mr
Sosibo contended that he is the sole heir in his late wife’s
intestate estate and accordingly that the liquidation
and
distribution account was incorrect and that transfer of the
immovable property to his late wife’s parents, Mr and Mrs

Radebe, should not have taken place. In the court
a quo
his
application was upheld, the liquidation and distribution account was
set aside and transfer into Mr Sosibo’s name was
ordered.
The parents of the late Mrs Sosibo, Mr and Mrs Radebe (respondents
in the court below) now appeal that decision.
Antenuptial Contract
Prior to their November 2006 marriage, the intending spouses took
legal advice from an attorney in October with regard to the

appropriate marital regime. Acting on advice received they gave
separate Powers of Attorney to this attorney who was not himself

qualified or authorised to prepare or register an antenuptial
contract.
3
The attorney, then attended before a Notary Public and the attorney
signed and the Notary Public attested an antenuptial contract.
This
antenuptial contract was registered in the Deeds Office on 7
th
November 2006.
In the antenuptial contract it was agreed between Mr
and Mrs Sosibo that there should be neither community of property
nor community
of profit or loss between them. Accordingly, the
accrual system of matrimonial regime as provided for in Act 88 of
1984 automatically
came into operation.
In order to calculate the accrual
or profits arising from and in the course of the marriage, the
intended spouses indicated
the nett values of their separate
estates at the commencement of the intended marriage: that of Mr
Sosibo being R5000 and that
of the intended Mrs Sosibo being R368
000.
A clause was
inserted into the antenuptial contract which has given rise to the
present dispute reads as follows:
‘
(4) For the purpose of S
ection
4 (1) (b) (ii) of the Act, the parties declare that the following
MILLICENT JABULILE
RADEBE’s
assets, namely-
Immovable property situate at 1263/4 Milkwood Street,
Ormonde Extension 24 Township registered in the name of MILLICENT
JABULILE
RADEBE
is excluded from the accrual system
and the value of such assets and the extent of any liabilities
existing in relation thereto,
have been ignored for the purpose of
arriving at the nett commencement values of the estates of the said
SIPHOSENKOSI EMANUEL
SOSIBO
and the said
MILLICENT JABULILE
RADEBE
.
’
The Accrual Regime
The accrual system applicable to the
matrimonial regime of Mr and Mrs Sosibo was automatically applicable
once they were married
out of community of property, profit and
loss. The right of either of the
m
to share in the accrual of the other spouse’s estate only
arose on dissolution of the marriage. Dissolution occurs either
by
death or divorce. In the present case death intervened.
The accrual system
has been described as “a deferred community of property’
or “
a deferred sharing of the
profits of spouses married out of community”
4
.
On dissolution of
marriage, whether by death or divorce, the nett increases in their
respective estates are notionally added up
and then divided equally.
The accrual is thus the difference between the nett of the estate of
commencement, properly escalated,
and the nett value at dissolution.
At dissolution of marriage a calculation is made by allowing to the
spouse whose estate has
no or a smaller accrual a claim against
the other spouse or her estate for an amount equal to half of the
difference between
the accrual of the respective estates of the
spouses. In short, the accrual of each separate estate is first
established, the
accruals are added together and then divided in
half. Each spouse is to receive the half so established and the one
that has
more than that amount is obliged to pay the difference to
the other.
Accordingly, in the present case,
the first step to be taken was determination of the accrual in
each of the separate estates
of both Mr and Mrs Sosibo and then to
calculate what claim, if any, either spouse of their executor had
against the estate
of the other. The liquidation and distribution
account in the estate of the late Mrs Sosibo indicates the nett
assets available
for distribution (after payment of debts and
administration fees) to be in the region of R1 200 000. Since that
includes an amount
of R480 000 in respect of the immovable property
which property has been wholely excluded from any accrual, it would
seem that
the accrual in the estate of the late Mrs Sosibo was in
the region of some R 720 000. Thereafter the accrual in the
estate
of the surviving Mr Sosibo should have been calculated. Only
by comparison between the two estates and the two accruals (if

indeed there are such) would it be possible to ascertain whether or
not and the amount by which Mr Sosibo has a claim to a share
in the
accrual in the estate of his late wife.
However, taking into account that the financial
position of the spouses could scarcely have changed significantly
during the
very short period of their marriage, it is most probable
that Mr Sosibo does indeed have a claim upon the accrual in the
estate
of the late Mrs Sosibo.
It is only once these ‘profits’ have been
divided between the spouses that the question of testate or
intestate succession
arises.
The Accrual Regime and Succession
The accrual of the estate of the
deceased spouse is determined before effect is given to any
testamentary disposition, donation
mortis
causa
or
succession to any portion of that estate in terms of the law of
intestate succession
5
.
The Matrimonial Property Act has
made it clear that the matrimonial regime chosen by the spouses
has no bearing on any right
to succession by a surviving spouse
from the estate of the first dying
6
..
The application of the accrual system and the calculation of any
accrual has no bearing on the right of either spouse
to inherit
from the other, either by way of intestate succession or under a
will.
The fact that certain asset(s) have
been excluded from the accrual in a marriage governed by that regime
does not mean that the
remainder of an estate, ie the portion not
included in the accrual, must be dealt with in any manner other
than
ab intestato
or by right of a will.
Intention of the Deceased
Much reliance has been placed by
both parties on their purported comprehension of the ‘intention’
of the
late Mrs
Sosibo.
Mr and Mrs Radebe (the appellants)
submit that the clear intention of their daughter in excluding this
immovable property from
the marital regime was to ‘prevent it
from devolving upon’ Mr Sosibo on her death. This intention
of the late Mrs
Sosibo is supposedly extracted from her
instructions to the attorney that the immovable property should be
excluded from the
accrual system created in the antenuptial
contract; the averment that there was advice on the part of the
attorney that such
exclusion in the antenuptial contract ‘would
sufficiently prevent a devolution’ upon Mr Sosibo in the event
of either
of the spouses dying without a will; the averment that,
whilst alive, Mrs Sosibo had expressed the desire that this
property
should become the property of her parents.
There is a dearth of first hand
information concerning the pre marriage consultation involving
attorney Etienne Cloete
7
,
Mr Sosibo and the late Mrs Sosibo. In the founding affidavit Mr
Sosibo goes no further than to state that “during
the
consultation the deceased and I had the said Etienne Cloete, he also
advised us to prepare and execute a last will and testament.
We
inquired what the position would be should either of us die
intestate and the legal position was explained to us by the said

Etienne Cloete. Both of us decided that we deemed it unnecessary to
execute a last will and testament under the circumstances.”
8
Mr Sosibo also states that he has been advised by his attorney
that “in his opinion I am the sole heir in the estate
of the
deceased and that I am entitled to inherit and take transfer of all
or any assets in this estate. This was the same advice
that the
said Etienne Cloete gave the deceased and I IN October 2006”
9
Sosibo gives no indication of what explanation the said Etienne
Cloete gave the intending spouses as to their legal position
should
either of them die intestate.
Mr and Mrs Radebe
further
contend that both family ties and financial interdependency lead to
the making of a number of loans over a three year
period both from
the family business
,
Osizwenzi CC, and
from Mr and Mrs Radebe to the late Mrs Sosibo in an account of
approximately R450 000. It is averred that,
during her lifetime,
the late Mrs Sosibo confided in her sister, Patience Radebe, that
she would want the immovable property
which she had acquired to pass
on to her parents if she were to die before them ‘for reason
that the loans that they and
family business had made to her,
enabled her to purchase that property’
10
.
In addition, during her lifetime,
the late Mrs Sosibo is said to have informed her parents,
Mr
and Mrs Radebe, that she wished them to become the owners of ‘her
house (the immovable property) and that that should
be formalised by
attorneys should she pass away before them.’
11
These expressions of wishes are confirmed by the affidavit of the
sister, Patience Radebe, as also the parents, Mr And Mrs Radebe
(the
appellants).
However, for purposes of this appeal, it is not
necessary to make any finding as to the credibility of the evidence
deposed
to by Mr Sosibo or members of the Radebe family.
Family recollection does not have
to be relied upon because the appellants submissions are founded
upon the meaning and the
import of the property exclusion clause in
the antenuptial contract. The appeal appears to be based upon a
two fold argument:
Firstly, Mrs Sosibo did not die wholly
intestate because, insofar as the immovable property is concerned,
she made a testamentary
disposition in the antenuptial contract
which meant that the house does not devolve upon Mr Sosibo by
intestate succession.
Secondly, the property exclusion clause is
proof of either a donation or bequest to her parents. These two
scenarios appear
to be interchangeable in appellants argument and
the wording variously used ranges from “ bequest inter v
ivos”,
“transaction inter vivos”, “donation mortis
causa”, “contract for the benefit of
a third party”.
Testacy or Intestacy of the
late Mrs Sosibo
It is accepted that an
estate
may be partly testate and partly intestate in that a deceased may
have left a valid will disposing of only portion of
his or her
assets. These assets then pass by testate inheritance, whereas the
balance of the assets, not dealt with in the
will, would pass by
intestate inheritance.
Part of the appellant’s
argument appears to be that Mr and Mrs Radebe
inherit by through some form of testatmentary provision in the
ante nuptial contract. The property exclusion clause excludes

the immovable property from the accrual between Mr Sosibo and the
late Mrs Sosibo is some form of testamentary disposition when
it is
combined or read in the context of the evidence of members of the
Radebe family..
12
.
I comprehend that Mr and Mrs Radebe
c
ontend that exclusion
of the immovable property from any prospective accrual reflects
their understanding of their daughter’s
wishes that Mrs
Sosibo did not wish her house to become the property of her
husband, Mr Sosibo. They rely upon inclusion
of this clause in
the antenuptial contract to buttress the averment that, during her
lifetime, Mrs Sosibo expressed the wish
that the house should
become the property of her parents.
However, I have much difficulty in accepting that the
clause contained in the antenuptial contract contains any
testatmentary
disposition of this property to Mr and/or Mrs Radebe.
It has long been accepted that an
antenuptial contract may contain pro
visions
relating to the devolution of property on the death of one of the
spouses which would be valid and constitute an exception
to the
rule that a
pactum
successorium
is
invalid.
However, there is no merit in the
submission that it is not necessary that there be compliance with
the formalities prescribed
in the
Wills Act 7 of 1953
because an
antenuptial contract is not a testamentary act. I find no
assistance to the appellants in the cases cited at footnote
12 of
counsel’s heads of argument.. While an antenuptial contract
may certainly contain a succession clause, any such clause
would
have to comply with the formalities prescribed for wills. The
formalities prescribed in the
Wills Act 7 of 1953
as amended include
a written document, signed on each page by the testator, each
signature witnessed by two persons, nomination
of heirs or legatees.
In the present case there is no indication in the document that
upon death Mrs Sosibo (then Ms Radebe)
bequeathed the named
immovable property to either Mr or Mrs Radebe or both of them.
There is simply no reference to devolution
of the property in the
event of an anticipated death or the naming of a beneficiary or
beneficiaries.
Even if there were a reference to the death of the late
Mrs Sosibo and the naming of legatees, there is certainly not
compliance
with the
Wills Act. This
antenuptial contract has not
been signed on any page by the late Mrs Sosibo and there can
therefore be no witness to her signature.
The power of attorney
whereby she authorised an attorney to attest to an antenuptial
contract on her behalf constitutes even
less compliance.
It does not avail the appellants to
submit that a court must t exercise great caution when asked to set
aside a will which has
been accepted by the Master especially when a
considerable period has elapsed since death. The authorities to
which reference
are made provide no assistance. In the present
case there is no will. Moreover, a proper reading of the Master’s
report
reveals that the Master never purported to accept any portion
of the antenuptial contract as a will.
I can see no merit in the submission
that Mrs Sosibo did not die
intestate.
There is no document extant which purports to dispose of her estate
or part thereof on her death to named heirs or
legatees.
Inter vivos bequest or donation mortis causa
Appellants counsel has attempted to argue that some
kind of bequest or donation to Mr and Mrs Radebe is to be found
either in
the antenuptial contract or in the wishes verbally
expressed by their daughter during her lifetime or in combination.
It is difficult to untangle the exact nature of the
argument. However, on whatever basis it is presented I can find no
merit
therein.
Firstly, whilst it might formerly
have been
a frequent
practice that an antenuptial contract would also include a contract
between one or both of the spouses and one or
more third parties in
favour of either the spouses or the third party, in the present case
there are no third parties who are
either named in the antenuptial
contract or who have entered into and concluded this contract.
Secondly, whilst it would have
been permissible for the late Mrs Sosibo to have specified in the
antenuptial contract that
third parties not a party to the
antenuptial contract, such as her parents, would be beneficiaries
of a gift or settlement
- she has not so done. A
stipulation
alteri
would have
to intend to create rights for Mr and/or Mrs Radebe, operate as an
offer to them which they could accept and would
have to comply with
the formalities applicable to the nature of the rights on offer –
in this case those prescribed in
the Alienation of Land Act .
Thirdly, I do not understand what
is meant by a “bequest inter vivos” but if by that
phrase is intended a bequest
made during her lifetime to take
effect on her death, then I comment, once again, that there must
be compliance with the
provisions of the
Wills Act. The
reference
to various authorities in appellant’s heads are have not
been particularly helpful.
Fourth, where it is argued that
there was a “
donatio
mortis causa”
then again there is neither a written document signed by the
late Mrs Sosibo
13
in which she indicates that she makes a donation (in contemplation
of death
14
)
to her parents . There is still no compliance with the
Wills Act
15
.
Fifth, any divesting by Mrs
Sosibo of her interest in the immovable property during her lifetime
would necessarily require
compliance with the provisions of the
Alienation of Land Act 698 of 1981
16
.
Finally,
insofar as it is suggested that the evidence of family members is
to the effect that the late Mrs Sosibo made a donation
to her
parents during her lifetime which is reflected in the property
exclusion clause in the antenupial contract, this is
clearly not the
case. There is no indication that the late Mrs Sosibo divested
herself of the property during her lifetime
and did not intend to
enjoy the benefit of the property while she lived. I have
already pointed out the absence of compliance
with any of the
prescribed formalities.
CONCLUSION
The distress of the Radebe family is understandable.
The family was interdependent and provided financial assistance to
the
members thereof including the late Mrs Sosibo. She acquired a
house of some value during her lifetime. Her family expected to

benefit from her estate should she predecease any of them,
particularly her parents. She then married Mr Sosibo. Barely
a
month later she died. Their grief and their loss has been
compounded by the fact that an outsider, the very new husband,
has
benefited from their daughter’s death.
It would seem that the only avenue available to the
Radebe family has been to attach a claim to some portion of their
daughter’s
estate by reliance upon the clause excluding the
immovable property from the accrual in this marriage.
This reliance has been totally misplaced.
Appellants’ legal representatives have lost sight
of the fact that this antenuptial contract is primarily a contract
between
the two intending spouses, Mr Sosibo and his intended wife
then Ms Radebe. They were seeking to arrange their matrimonial
property
regime.
Appellants’ legal
representatives have failed to have regard to
the fact that the right of Mr Sosibo to share in any accrual in the
estate of the late Mrs Sosibo would arise on dissolution
of the
marriage - by death or divorce - or if the court ordered
otherwise. The late Mrs Sosibo concluded this antenuptial
contract
as an intending spouse. If she had not excluded this immovable
property, her home, from the accrual in her estate
she may well
have found herself obliged to share the value of or the house
itself with her spouse if and when they became divorced.
If the
immovable property had not been excluded from the accrual, then Mr
Sosibo could have laid claim to some portion of
the property
representing an increase in the net value, ie the accrual, in the
estate. By excluding the property itself from
the accrual, Mrs
Sosibo protected not only the property but also its increase in
value by reason of additions, alterations,
extensions and simply
the increase in the value of immovable property. The effect of
this property exclusion clause was, inter
alia, to protect her own
interests as a potentially divorcing spouse.
Parties choose different matrimonial regimes for a
multiplicity of reasons. Intending spouses choose to exclude assets
from
the accrual for a similar variety of reasons – one need
only think of insolvency, divorce, concern for children of
previous
marriages, the ability to dispose of an entire (rather
than shared) asset by way of will and so on.
By excluding the immovable (or any other) asset from
the accrual in the antenuptial contract, the late Mrs Sosibo did
not give
any indication that she divested herself of that asset in
favour of her parents or anyone else nor did she give any
indication
that she bequeathed that asset to her parents or anyone
else upon her death. This is not a divesting or transferring or
devolving
clause at all.
.This approach explains why there is
no reference to Mr or Mrs Radebe in this antenuptial contract. It
explains why there is
no compliance with any of the formalities
prescribed by the
Wills Act or
the
Alienation of Land Act.
In the present case much distress and financial
embarrassment could have been avoided had the intending spouses
executed separate
last Wills and Testaments at the time they
consulted with regard to their antenuptial contract. It is
appreciated that there
are costs involved in embarking upon two
legal processes – the antenuptial contract requiring
consultation and advice from
a Notary Public and the costs of
registration of such contract; the will requiring advice and
drafting from and by an attorney.
However, litigation such as
this could have been avoided had Mr Sosibo and his late wife taken
these steps.
COSTS
Mr Sosibo, the respondent in this appeal, has asked
for costs to be awarded on a the punitive scale.
It is correct that this litigation should never have
been required and this appeal should never have been embarked upon.
However,
I do not lose sight of the circumstances of the dispute –
bereavement, attachment to the assets of the lost daughter,
incredulity that parents are excluded from their daughter’s
assets in favour of a newly married spouse. All these
understandable
emotional considerations militate against any
punitive order.
ORDER
In the result I would make an order as follows:
The appeal is dismissed with costs.
_____________________
SATCHWELL J
I agree
______________________
WILLIS J
I agree
_________________________
MONAMA J
DATED AT JOHANNESBURG
THIS 18 MARCH 2011
K. SATCHWELL
Judge of the High Court
1
2
The Masters Report dated 20 April 2008
3
In
Ex Parte Moodley and another; Ex Parte Iroabuchi and
Another 2004(1) SA 109 W,
I commented on the undesirability of
unqualified persons, viz attorneys who are not Notariees Public,
providing advice concerning
and preparing antenuptial contracts.
4
Sinclair
The Law of
Marriage
142
5
Section 4 (2) of the Matrimonial Property Act
6
Section 4 (2) of the Matrimonial Property Act
7
With whom the parties consulted; to whom they gave a Power of
Attorney; who appeared before a Notary Public on their behalf
and
who executed the written antenuptial contract; who now represents
Mr Sosibo, applicant in the court
a quo
and first respondent
in this appeal.
8
Para 8 of the Founding Affidavit
9
Para 16 of the Founding Affidavit
10
Para 6.17 of the Answering Affidavit
11
Para 6.9 of the Answering Affidavit
12
They might have done better to have considered
the argument that Mr and Mrs Radebe inherit the immovable property
by way of
intestate succession, the property being excluded from
Mrs Sosibo’s total estate by reason of the property exclusion

clause in the antenuptial contract. I shall consider this
possibility.
13
S
ection 5 of the General Law Amendment Act 70
of 1968
14
Oost v Reek and Snideman NNO 1967(1) SA
472 T 478E.
15
Jordaan v De Villiers
1991 (4) SA 396
C
16
S
ection 2 of the Alienation of Land act 68 of
1981 provides that “no alienation of land shall be of any
force and effect
unless it is contained in a deed of alienation
signed by the parties thereto”. As to donations of land
contained in
an antenuptial contract see
Dockrat
v Willemse et al
1989 (1) SA 480
N
at
493F

Back to Law Reports