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[2012] ZAGPJHC 219
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EA v EC (09/25924) [2012] ZAGPJHC 219 (25 October 2012)

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REPORTABLE
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: 09/25924
DATE:25/10/2012
In
the matter between:
E:
A
L
….............................................................................
Plaintiff
and
E:
C E
(born
V D W)
…................................................................
Defendant
J U D G M E N T
KATHREE-SETILOANE, J:
[1] The plaintiff and the defendant,
Mr A L E and Mrs C E E, respectively were married on 30 March 1991,
in the Northern Cape, out
of community of property, and with the
exclusion of the accrual system, as provided in Chapter 1 of the
Matrimonial Property Act
88 of 1984 (“the
Matrimonial Property
Act&rdquo
;).
[2] The plaintiff seeks, amongst
others, a decree of divorce together with an order in respect of
parental responsibilities and
rights regarding the minor child. The
defendant counterclaims for amongst others:
(i) a decree of divorce;
(ii) a declarator that a partnership
came into being between the plaintiff and the defendant and has been
dissolved as at the date
of divorce;
(iii) a declarator regarding the
composition of assets of the partnership;
(iv) an order appointing a liquidator
with authority to, realise the whole of the partnership assets,
liquidate the liabilities
of the partnership, prepare a final account
and to pay to the plaintiff and the defendant whatever is owing to
them by virtue of
the partnership agreement;
(vii) an order directing the
liquidator to prepare an account reflecting the aforegoing, and to
pay the proceeds equally to the
plaintiff and the defendant; and
(viii) an order directing that the
costs of the liquidator be paid out of the assets of the partnership
estate.
[3] The defendant raises a special
plea that the defendant’s claims do not disclose a cause of
action as the claims, and the
evidence required to be tendered in
support of them will contradict the terms of the antenuptial contract
concluded between the
parties, on 2 March 2009, which expressly
provides that the parties are married out of community of property
with the exclusion
of the accrual system. The plaintiff contends that
the relief sought by the defendant in her counterclaim is
incompetent, and that
the evidence which she will be required to lead
in support of her claim will be inadmissible as it will offend
against the parol
evidence rule, and it will seek to effect and
invalid amendment to, or revocation of, the antenuptial contract.
[4] The parties agreed, in terms of
Rule 33(4) of the Uniform Rules, to a separation of the issues, and
that the plaintiff’s
plea be determined separately and prior to
the remaining issues (
JW v CW
2012 (2) SA 529 NCK).
Universal Partnership in Conflict
with Antenuptial Contract
[5] In Roman Dutch Law two types of
universal partnerships were recognized, namely the
universorum
bonorum
and the
universorum quae ex questu veniunt.
In the
partnership
universorum bonorum,
the contracting parties agree
to put in common all their property, both present and future. It
covers their acquisitions whether
from commercial undertakings or
otherwise. In the partnership,
universorum quae ex quaestu
veniunt
, on the other hand, the contracting parties contract a
partnership of all that they may acquire during its continuance from
every
kind of commerce. They are considered to enter into this kind
of partnership when they declare that they contract together a
partnership
without any further explanation (
Isaacs v Isaacs
1949 (1) SA 952 (C)).
[6] The defendant pleads the
formation of a
universorum bonorum.
This is apparent from her
plea which reads:
“
5.8 Immediately
prior to the inception of their marriage and at or about (Kathu,
Northern Cape), the plaintiff and defendant both
acting personally
agreed that:
5.8.1. The
parties would commence the business of accumulating assets and income
for the mutual benefit of each of them and any
children to be born of
their marriage (“the business”).
5.8.2. The
business would be owned by a partnership in which the parties were
equal partners and would be pursued by way of such
partnership.”
5.9 The
express, alternatively implied, further alternatively tacitly agreed
material terms of the partnership were as follows:
5.9.1 The
parties in partnership would carry on the business of the partnership
through the medium of juristic person/s. The juristic
person/s would
be registered in the name/s, for the sake of convenience, of one,
other, or both parties and/or their nominee/s,
and/or independent
third party/ies as necessary and/or appropriate.
5.9.2 Notwithstanding
the aforegoing registration, the partnership would own the entities.
5.10 The
parties would:
5.10.1 Share
in the assets of the partnership equally;
5.10.2 Share
in the liabilities of the partnership equally;
5.10.3 Share
in the profits of the partnership equally;
5.10.4 Share
equally in the losses resulting from the partnership;
…”
[7] The defendant pleads that the
universal partnership agreement was entered into immediately prior to
the marriage of the parties,
and the execution of the antenuptial
contract, which was concluded on 2 March 1991, some 4 weeks prior to
the marriage. A universal
partnership, such as alleged by the
defendant, is an agreement in terms of which all of the parties’
movable and immovable
assets, both present and future, form part of
the assets of the partnership between them, without limitation. An
agreement of this
nature would clearly be irreconcilable with the
antenuptial contract entered into by the parties, which expressly
excludes community
of both existing and future property of the
parties.
[8] I am of the view that the
establishment of a universal partnership, such as contended for by
the defendant, contradicts the
clear purpose, and terms agreed upon
by the parties in paragraphs 1 and 2 of the antenuptial contract,
which expressly excludes
community of property and profit and loss.
The clear intention of the parties, as reflected in the antenuptial
contract concluded
between them, was that each of them would retain
his or her pre-marital property, as well as the assets acquired after
marriage,
and the liabilities acquired after marriage.
[9] As is apparent from the
counterclaim, the universal partnership agreement, which the
defendant contends for, was concluded either
prior to the conclusion
and execution of the antenuptial contract between the parties, or at
the same time. A universal partnership,
in the terms contended for by
the defendant, would in effect amount to a marriage in community of
property. This much is apparent
from the defendant’s founding
affidavit (deposed to on 18 June 2009) in her Rule 43 application,
wherein she stated:
“
I
mention briefly that the Respondent immediately prior to our marriage
and the execution of our antenuptial contract, expressly
assured me
that the antenuptial contract would apply only in respect of third
parties such as creditors but that as between the
two of us, our
marriage would be a partnership and everything established during the
course thereof would be ours for the equal
benefit of both of us and
any children born of our marriage. “
She goes on in her Rule 43 affidavit
to say:
“
I
loved the Respondent and believed and trusted him without question,
in his assurances in this regard. Accordingly, I was prepared
to and
did sign the antenuptial contract which excluded the accrual system.”
Invalid Amendment or Revocation of
Antenuptial Contract
[10] I am of the view that the
universal partnership agreement, contended for by the defendant,
serves to redefine the very nature
and essence of the antenuptial
contract, and by so doing, effectively, seeks to substitute the
matrimonial property regime agreed
upon in the antenuptial contract,
with a regime which would have the opposite effect.
[11] There can be little doubt,
therefore, that a universal partnership agreement, such as contended
for by the defendant, would
constitute a revocation, or at the very
least, an amendment of the very essence of the antenuptial contract,
which was entered
into between the parties. Such a step, even with
the mutual consent of the parties, can only be effected by an order
of the High
Court on good cause shown (Ex
parte Dunn et Uxor
1989 (2) SA 429 NC;
Honey v Honey
1992 (3) SA 609 (W)). No
such order was sought by the parties or granted by the Court. Hence,
any evidence which the defendant
may seek to lead, of an invalid
revocation or amendment of the terms of the antenuptial contract,
would be inadmissible on the
basis of being irrelevant, as an
antenuptial contract cannot be revoked or varied without the leave of
the High Court (
JW v CW
2012 (2) SA 529 (NCK) at para 29).
Parol Evidence Rule
[12] As alluded to, the defendant
contends for a universal partnership agreement, which either precedes
the conclusion of the antenuptial
contract, or was concluded
contemporaneously. The defended would, in order to prove this
partnership agreement, need to lead evidence
at the trial. The
plaintiff, however, contends that the leading of any such evidence
would be inadmissible, as it offends against
the parol evidence or
integration rule.
[13] The parol evidence rule provides
that where a jural act is incorporated in a document, it is not
generally permissible to
adduce extrinsic evidence of its terms. In
Venter v Birchholtz
1972 (1) SA 276 (A) 282, the Appellate
Division accepted Wigmore’s description of the parol evidence
rule as the “integration
rule”. This description was
later endorsed in
National Board (Pretoria) (Pty) Ltd v Estate
Swanepoel
1975 (3)
SA 16 (A) 26, as follows:
“
The
rule is well summarised by Wigmore,
Evidence,
3
rd
ed vol 9 sec 2425, as follows:
This
process of embodying the terms of a jural act in a single memorial
may be termed the
integration
of the act, ie
its
formation from scattered parts into an integral documentary unity.
The practical consequence of this is that its scattered parts,
in
their former and inchoate shape, do not have any jural effect; they
are replaced by a single embodiment of the act. In other
words: When
a jural act is embodied in a single memorial, all other utterances of
the parties on that topic are legally immaterial
for the purposes of
determining what are the terms of their act.”
[14] Similarly, in the earlier
decision of
Union Government v Viannini Ferro Concrete Pipes (Pty)
Ltd,
1941 AD 43 at 47, Watermeyer, JA observed:
“
Now
this Court has accepted the rule that when a contract has been
reduced to writing, the writing is, in general, regarded as the

exclusive memorial of the transaction and in a suit between the
parties no evidence to prove its terms may be given save the document

or secondary evidence of its contents, nor may the contents of such
document be contradicted, altered, added to or varied by parol

evidence.”
Thus, any evidence which the defendant
would seek to adduce, during the trial, to prove the preceding or
contemporaneous universal
partnership agreement would contradict the
terms of antenuptial contract entered into between the parties, and
in so doing seek
to redefine its terms. Any such evidence would
therefore be inadmissible as it would be precluded by the parole
evidence rule.
[15] The defendant, however, contends
that the circumstances of this case fall within the exceptions to the
parol evidence rule.
She relies, in support of this contention, on
the decision of
Johnston v Leal
1980 (3) SA 927 (A) where
Corbett JA observed (at 944B-C):
“
Where a written contract is
not intended by the parties to be the exclusive memorial of the whole
of their agreement but merely
records a portion of the agreed
transaction, leaving the remainder as an oral agreement, then the
integration rule merely prevents
the admission of extrinsic evidence
to contradict or vary the written portion; it does not preclude proof
of the additional or
supplemental oral agreement…”
[16] The defendant does not, in this
regard, contend that the antenuptial contract, which was concluded
between the parties, is
inchoate. However, relying on the decision in
Johnston v Leal
(at 944B-C), she contend that there is a
preceding or contemporaneous oral agreement that supplements the
contents of the antenuptial
contract concluded between the parties
which, importantly, does not seek to add to or remove from the
contents of the antenuptial
contract. She contends that where
extrinsic evidence can be advanced without regard being had to the
antenuptial contract, such
evidence would be admissible as
constituting an exception to the parol evidence rule in the form of a
partial integration of the
preceding or contemporaneous oral
agreement. She contends that parties are entirely capable of
determining an agreement, and incorporating
the terms of the
agreement in a written document that may be termed a choate
agreement, but nothing prevents the same parties from
reaching an
oral agreement on ancillary issues that do not purport to replace any
of the written terms of the agreement.
[17] In order to fall within the
ambit of the exception to the parole evidence rule, as contemplated
in
Johnston v Leal
(at 944B-C), the defendant would be
required to plead that the antenuptial contract, which was entered
into between the parties,
was not intended by them to be the
exclusive memorial of the whole of their agreement, but that it
merely recorded a portion of
their agreement, leaving the remainder
as an oral agreement. The defendant has, however, failed to plead
this in her counterclaim.
I am of the view that in the absence of any
such allegations in the defendant’s counterclaim, the
antenuptial contract −
which was reduced to writing, was
attested to by a notary public, and was duly registered by the
Registrar of Deeds in terms of
s 87(1)
of the
Deeds Registries Act,
47 of 1937
− would be conclusive of the terms of the agreement
that was concluded between them. It must, therefore, be regarded as
the
exclusive memorial of the transaction between them, and no
extrinsic evidence to prove its terms may be adduced. Nor may its
contents
be contradicted.
[18] Thus any other actions, whether
in the form of oral or documentary communications, or other conduct,
of the parties, that preceded
or accompanied the act of concluding
the antenuptial contract, simply forms no part of such agreement. Any
such actions are irrelevant
to the antenuptial contract, and
consequently inadmissible as a matter of evidence. In
De Klerk v
Old Mutual Insurance Co Ltd
1990 (3) SA 34
(E) at 39 D-E, the
Court observed:
“
[W]here
a contract has been reduced to writing, the written document is
regarded as the sole memorial of the transaction and deprives
all
previous inconsistent statements of their legal effect. The document
becomes conclusive of the terms of the transaction which
it was
intended to record. The result is that previous statements by the
parties on the subject can have no legal consequences
and are
accordingly irrelevant and evidence to prove them is inadmissible.”
[19] The circumstances that existed in
Johnston v Leal
are, in any event, distinguishable from those
in the current matter.
Johnston v Leal
dealt with the parol
evidence rule in the context of a contract for the sale of land
(which in terms of statute had to be reduced
to writing) where the
written contract contained blank spaces. Corbett JA observed (at
943B-F):
“
Dealing
first with the integration rule, it is clear to me that the aim and
effect of this rule is to prevent a party to a contract
which has
been integrated into a single and complete written memorial from
seeking to contradict, add to or modify the writing
by reference to
extrinsic evidence and in that way to redefine the terms of the
contract. The object of the party seeking to adduce
such extrinsic
evidence is usually to enforce the contract as re-defined or at any
rate, to rely upon the contractual force of
the additional or varied
terms, as established by the extrinsic evidence. On the other hand,
in a case such as the present where
ex facie
the document
itself the contract appears to be incomplete, the object of leading
extrinsic evidence is not to contradict, add to
or modify the written
document or to complete what is incomplete so that the contract may
be enforced thus completed, but merely
to explain the lack of
completeness, to decide why the parties left blanks in a particular
clause and what their integration actually
comprises, and in this way
to determine whether or not the document constitutes a valid and
enforceable contract and is in conformity
with s 1 (1) of the Act
[Formalities in Respect of Contracts of Sale of Land Act 71 of 1969].
Consequently, it does not seem to
me that the admission of such
extrinsic evidence for this purpose in a case of the kind presently
under consideration would be
either contrary to the substance of the
integration rule or likely to defeat its objects. To sum up,
therefore, the integration
rule prevents a party from altering, by
the production of extrinsic evidence, the recorded terms of an
integrated contract in order
to rely upon the contract as altered;
the evidence which it is suggested could be adduced in this case
would be to explain an overt
lack of completeness in the document and
at the same time to determine what has been integrated with a view to
deciding upon the
validity of the document as it stands.”
[20] Therefore, in
Johnston v Leal
blank spaces in the contract rendered the validity of the
contract questionable as the blank spaces created ambiguity and was
incapable
of interpretation. The court found that the issue as to
whether the document was a valid and enforceable contract, and
complied
with s 1(1) of Act 71 of 1969, in the particular
circumstances of that case were not resolvable as a pure question of
law, as it
depended partly on the facts, namely the intention of the
parties and the reason why clause 11 was left incomplete (at 942D-E).

It was ultimately decided that extrinsic evidence would be admissible
in order to explain the lack of completeness in the written
contract,
and to thus determine its validity. The current matter is, therefore,
distinguishable from
Johnston v Leal,
on the additional basis
that there is no ambiguity or lack of completeness in the terms of
the antenuptial contract concluded between
the parties, which
expressly exclude community of property, and profit and loss. These
terms can easily and readily be interpreted
without any reference to
extrinsic evidence.
[21] Our courts have often, in the
past, been concerned with the question of whether evidence may be
given to prove a collateral
oral agreement, as well as an additional
consideration, which is inconsistent with the written contract. This
issue came to head
in the matter of
Du Plessis v Ne
l
1952 (1)
SA 513
(A), where the Court had to consider the situation where a
written deed of sale of immovable property had been concluded, and
one
of the parties thereto claimed that an oral agreement had been
entered into collaterally, conferring upon that party a servitude

over the land in question. The court had to determine whether
evidence could be led regarding a prior oral agreement, in relation

to a property contract, which was in conflict with the written deed.
The Court held that evidence of a prior oral agreement collateral
to
a written agreement, and which induced the written agreement was
admissible only when its terms did not conflict with the terms
of the
written contract.
[22] Van den Heever JA, with whom
the majority of the Court agreed, stated thus (at 534):
“
A
written agreement is normally a document drawn with due caution and
deliberation. Where, therefore, parties have crystallized
their
agreement into written form,
‘it would be
inconvenient that matters in writing made by advice and on
consideration, and which finally import the certain
truth of the
agreement of the parties, should be controlled by averment of the
parties to be proved by the uncertain testimony
of slippery memory”.
(The
Countess of Rutland’s case, 5 Co. Rep. 25 (b); 75 E.R., p. 90.
)
In
Clifford v Turrell, 14 L.J. Ch. 390 at p. 397, the LORD CHANCELLOR
observed:
‘
Now, the
settled rule of law is that you may prove a further consideration
which is consistent with the consideration stated on
the fact of the
deed. You cannot be allowed to prove a consideration inconsistent
with it, but you may prove another which stands
with it.’
This
statement of law was adopted by this Court in
Avis
v Vereput,
1943 AD 331
at p.379.”
Van den Heever JA, speaking for the
majority, held (at 539):
“
What
then is a collateral oral contract not inconsistent with the written
instrument and therefore capable of being proved? The
explanation
seems to me to be this: where the written contract purports to
reflect the whole contract on a particular subject matter
between the
parties, where the pleadings aver that it is the whole contract or
the Court is satisfied that it is, no additional
or oral terms may be
proved; in that manner greater and lesser performances than those
promised in the written contract may not
be proved (
Angell
v Duke
(1875) 32 LT
320).
But the parties are not by this rule compelled to reduce their
legal relationships, however remotely related to such subject matter,

to writing. Even where the subject matter of an oral contract is so
closely related to that of the written instrument that the
conclusion
of one is consideration for the other, the oral contract may be
proved if truly extrinsic and therefore not in conflict
with the
contract.”
So whilst it may be permissible for
the defendant to prove a prior or collateral agreement, which is
consistent with the antenuptial
contract, it would be impermissible
for her to prove a prior or collateral universal partnership
agreement with reference to extrinsic
evidence that is inconsistent
with the antenuptial contract, which she concluded with the
plaintiff. The two are incompatible,
and therefore cannot stand
together.
[23] It is contended, on behalf of the
defendant, that to disallow evidence at the trial to prove a
universal partnership would
perpetuate the discrimination experienced
by women as identified by Sinclair, in
The Law of Marriage
(Vol
1) 1996 (at 139), where she comments:
“
Stereotypical
role-allocations for women have been a major source of their general
disempowerment and financial impoverishment.
In addition, great
changes have occurred in the transmission of family wealth...”
…
Young
women still rely heavily on the dangerous notion that they will
marry, have children and be supported throughout their lives
by their
husbands. Within marriage the unequal distribution of the domestic
burden, which has its own further effect of channelling
married women
into lower part-time jobs, inhibits the development of a stable
career and diminishes the chance that a married woman
has of securing
‘a good job with good fringe benefits’ – Professor
Charles Reich’s definition of ‘new
property’. After
divorce, the incidence of which is ever increasing, it is not
surprising that that women are unable suddenly
to compete for scarce
jobs and to become financially dependent.”
Sinclair, however, goes on to write
(at 142):
“
South
Africa is a country whose common law is based on universal community
of property and of profit of loss, has incorporated both
these
features into its matrimonial property law. There can be no doubt
that the introduction of the accrual system (which amounts
to a
deferred sharing of profits of spouses married out of community),
and the provision for judicial interference with the consequences
of
complete separation of goods via the transfer of property from one
spouse to the other on divorce, have mitigated the harsh
consequences
that ensue from a system that excludes all sharing, Such a system
contradicts the wider accepted view that marriage
produces a form of
partnership.”
[24] It certainly must not be
overlooked, as observed by Sinclair (at 142), that the accrual system
is frequently excluded in the
antenuptial contracts in situations
which usually reflect the choice of the husband, whose estate is
most likely to increase,
rather than the informed choice of both
parties. However, in the current matter, the defendant does not
allege that she was induced
by fraud, duress, or mistake to conclude
the antenuptial contract with the plaintiff. Nor does she allege that
she was forced to
enter into the antenuptial contract excluding the
accrual system on terms that infringed her constitutional rights to
equality
and dignity, such that this Court must assess the
constitutionality of antenuptial contracts excluding the accrual
system, as a
matrimonial property regime that applies to marriages.
[25] The defendant’s
counterclaim, and affidavit in her Rule 43 application, reveal that
despite the existence of the purported
prior universal partnership
agreement, she, nevertheless, entered into an antenuptial contract
excluding the accrual system, on
the basis that it would apply only
in respect of third parties, such as creditors, whilst as between the
parties, there would be
a universal partnership. The defendant was
certainly, in my view, aware of exactly what she was doing, when she
concluded the antenuptial
contract excluding the accrual system, with
the plaintiff.
[26] The refusal, by reason of the
parol evidence rule, to allow inadmissible evidence to be lead in
circumstances where the defendant
was well aware of exactly what she
was doing when she concluded the antenuptial contract excluding the
accrual system, will not,
in my view, perpetuate discrimination
against women. Nor would it offend against the rights and values of
equality, dignity, and
autonomy of women, as enshrined in our
Constitution.
[27] One sincerely hopes that women
have transcended the belief in the unrealistic and naive notion that
they will marry, have
children and be supported for the rest of their
lives by their husbands. The vast majority of women, today, certainly
do not fit
this mould. Most women, today, are strong, intelligent,
educated, and independent. They share equally in the support of their
homes
and families − and will stand for nothing but equality in
their marriages − regardless of their socio-economic
circumstances.
To the extent, however, that some women may not be
fully apprised of their rights – surely the solution does not
lie with
interfering with the parole evidence rule, but rather with
introducing programmes to educate and empower women to transcend any

discrimination which they may still face on marriage, or upon
divorce.
[28] In the result, I make the
following order:
(1) The Special Plea is upheld.
(2) It is declared that any evidence
in substantiation of the allegations in paragraphs 5.7 to 5.17 of the
defendant’s counterclaim
will be inadmissible.
(3) The costs are to be costs in the
cause of the main action.
_____________________________
F KATHREE-SETILOANE
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Counsel for the Plaintiff:
Ms
L Segal
Attorneys for the Plaintiff:
Marston and Taljaard Inc
Counsel for the Defendant:
Mr A
Jacobs
Attorneys for the Defendant:
Tim
Fourie Attorneys
Date of Hearing:
13
September 2012
Date of Judgment:
25 October
2012