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[2017] ZAGPJHC 144
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R v R (36080/2015) [2017] ZAGPJHC 144 (6 June 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
36080/2015
Not
reportable
Not of
interest to other judges
Revised.
6/6/2017
In
the matter between:
R.,
J. Plaintiff
and
R.,
S. Defendant
JUDGMENT
Van
der Linde, J:
[1]
This is a divorce action in which the parties were commendably able
to settle all but four issues. The first issue was whether
their
ante-nuptial contract ("ANC") should be rectified, the
second what cash monthly amount the defendant husband should
be
contributing to his son's maintenance, the third whether or the
defendant should pay half of the boy's future private as opposed
to
public school fees, and the last whether or not the defendant should
pay half of his tertiary education.
[2]
The plaintiff and the defendant are respectively 37 and 39 years old.
They were married ten years ago, on 11 March 2007, in
Stellenbosch.
One child, a boy now two years old, was born of the marriage. They
had met on a kontiki tour, after they had both
landed up in London.
The plaintiff was born and bred in Windhoek, Namibia, one of three
siblings, of well-to-do parents. Her father
is a leading attorney in
Windhoek. After schooling there the plaintiff, whose father funded
her studies, did first a BSc and then
a MSc in food sciences. She
then went to London to explore work opportunities there.
[3]
The defendant's life path brought him from New South Wales in
Australia via Japan, to London. He is a self-made man, who took
himself to tertiary education in Japan, and in time, after the
parties married, rounded off his education with an MBA from GIBS,
locally.
[4]
About a year and a half ago, the plaintiff and the defendant decided
to end their marriage. He left, returning for Australia.
She stayed
her in Johannesburg, in Paulshof, in the house they had bought
together, and where they had lived together. In their
time together
they acquired also a house in Nooigedagt Estate in Stellenbosch,
which they were letting. Finally, to complete the
introduction to Mr
and Mrs R., there is a house in Australia, a residential property
which the defendant bought as an investment
long before parties met,
and that the defendant was letting.
[5]
Turning now to the remaining issues between the parties, the
particulars of claim tell of an ANC that subjected their marriage
to
the accrual system, with both parties' assets' commencement value
being reflected at nil. This contract was executed before
a
public notary at Stellenbosch, a Mr Feenstra. He had been recommended
to the parties by the plaintiff's father. The plaintiff's
claim
therefore includes a claim for 50% of the nett value of the two
parties assets.
[6]
The problem was the defendant's Australian house. In the particulars
counterclaim, he says that the parties' assets outside
South Africa
were meant to be excluded from the ANC, and so his Australian house
was excluded. He says that was their common continuing
intention, and
that they had signed the ANC in the bona fide but mistaken belief
that the ANC so provided. He consequently asks
for an order declaring
that all the parties' assets outside South Africa be excluded from
the ANC. It should be noted that the
defendant did not in his claim
define the way in which the ANC should be rectified, nor did he claim
that it be rectified by the
insertion or deletion of an appropriate
clause that would give effect to what he pleaded was the parties'
true intention.
[7]
There was a sharp conflict of fact on this issue. The defendant's
evidence was that about a week before the signing of the ANC,
there
was a discussion between him and the plaintiff's father at the
Strand. It was asocial occasion at which friends of the plaintiff's
parents attended. His future father in law there said to him that no
daughter of his would be marrying without an ANC. The defendant
expressed to him his concern for his Australian house, but was
assuaged by the plaintiff's father that all assets outside of South
Africa were as a matter of course, excluded from the ANC.
[8]
The next event was when the two betrothed were to attend the offices
of the notary public in Stellenbosch, for the purposes
of executing
the deed. This they did on 7 March 2007. Nothing of substance was
said; there was certainly no advice given or, for
that matter, asked.
They executed the ANC in front of Mr Feenstra, the defendant
comforted, he said, by the knowledge that his
house was excluded.
[9]
The defendant gave a very different version. She said that while they
were in London, during a telephone conversation with her
father, he
suggested to her that it would be advisable to marry subject to an
ANC; that was the done thing. It protected the other
spouse should
one engage on a business enterprise that went south. She discussed it
with the defendant but he was not impressed.
His attitude was that an
ANC was something for rich people; where he came from, people did not
marry by means of an ANC.
[10]
Sometime later the plaintiff's father called the defendant, still in
London. The plaintiff was in the flat when her father
called, but she
was not party to the conversation. She knew that it concerned the ANC
however. After the conversation between the
defendant and her father,
she asked the defendant whether he was now satisfied about getting
married in terms of an ANC. He said
to her then that he was.
[11]
She denies the discussion in the Strand, about a week before they
signed the ANC, at all events to the extent that that version
sought
to make her a party to that conversation. She said that on the day at
Mr Feenstra's office, they were shown an uncompleted
ANC by the
staff. Their identity numbers, and in the case of the defendant his
passport number, had to be furnished; which they
then did. Also, at
clause 12, which provided for the commencement values of their
respective estates, had not yet been completed.
[12]
On this issue Mr Feenstra said to them that they could either list
the value of the assets that they wished to be excluded
from the
growth in their respective estates, or that could simply enter a nil
value, in which event all of their existing and future
assets
effectively became shared between them.
[13]
The plaintiff said to the defendant, in response to this advice, that
she was going to put in nil value; what was he, the defendant,
going
to do? He replied, saying that he too was going to put in a nil
value. Each of them then wrote in the word "nil"
next to
his/her name. The ANC agreement was then completed in typed form, and
executed.
[14]
In the view that I take of the matter, it is not necessary to resolve
this conflict between the parties, because it seems to
me that on the
defendant's own version, the rectification has not been shown. It is
relevant to remind oneself that the plaintiff's
case is not that of
justus error; that he had made a unilateral mistake that should, in
all the circumstances of the case, be excused.
If that were his case,
he would have to seek avoidance of the agreement, and that would
leave him having been married in community
of property.
[15]Rather,
his case is squarely a rectification. The tried and tested
requirements for the successful invocation of rectification
of
written instruments are: the common continuing prior agreement or
intention that the parties' agreement will contain a certain
specified provision; the common continuing prior agreement or
intention that such provision will be included within the written
instrument; the signing by both parties of the written instrument on
the common bona fide but mistaken belief that the written
instrument
in fact contained the provision concerned when in truth it did not;
and a prayer for rectification of the written instrument
by the
insertion, at the appropriate place, of the provision concerned,
which should then be properly circumscribed.
[16]
The defendant's case for rectification fails at the first hurdle. No
common continuing intention has been shown. Whatever transpired
between the defendant and the plaintiff's father cannot without more
be ascribed to the plaintiff. The defendant appears to have
assumed
that whatever he discussed with her father, would also automatically
incorporate the plaintiff; and that whatever her father
told the
defendant, he (her father) would report to the plaintiff.
[17]
Even if this were a natural assumption to have made, it was not a
safe assumption. Her father was not her agent, and the defendant
should have checked with the plaintiff whether the two of them at
least, were on the same page. Absent the involvement of the father
as
an agent for the plaintiff, from a legal point of view, the defendant
has not on his own evidence shown that he and she shared,
as a fact,
the same mental attitude to the meaning and effect of the ANC when
they signed it.
[18]
That really is the end of the rectification claim. But one may add
that in another respect there are problems for the rectification
claim. It is this. There is no circumscription of the clause that it
is said should have been included in the written instrument,
nor any
claim for a rectification in those terms.
[19]
Finally on this score, if it were necessary to have made a factual
finding on the issue, i have to say that I would have preferred
the
evidence of the plaintiff, for these reasons. First, the letter
written by her father to Mr Feenstra does not suggest that
her father
held himself out as an expert on the topic. Rather, he left it over
to Mr Feenstra to advise the two. And Mr Feenstra
was in attendance;
it would have been entirely natural for the defendant to have asked
him to confirm the impression that the defendant
was labour under as
regards the inclusion or exclusion of the foreign assets.
[20]
Second, the plaintiff gave detailed evidence of the events in Mr
Feenstra's office. That evidence fits the objective facts,
such as
the necessity to complete the draft ANC. On this score, it is of
particular significance that clause 12 had not been completed.
That
implied that something had to be done about it; and the plaintiff's
evidence of the exchange between Mr Feenstra and the two
of them, and
between the two of them only, neatly and convincingly fits the
completion of that last step.
[21]
Third, the plaintiff's understanding throughout her cross-examination
of why an ANC was the preferred route to go, was clear
an
unequivocal. It reflected a proper grasp of what was involved in
executing the ANC. This grasp is reflected too in her evidence
concerning the contents of Mr Feenstra's advice: that of nil values
were inserted, it effectively imply a complete sharing of everything
the parties them had, and would acquire in the future. In short, she
was, I think, more attentive on this issue than was the defendant.
[22]
The claim for rectification should thus be refused. I do believe, as
the defendant submitted concerning the cost of the boy
Liam's
schooling, that it is premature at this stage to determine that he
should attend a private school. When the time comes,
the parents will
no doubt discuss and agree the best school; and the defendant is
obliged to pay half of those fees.
[23]
Similarly, I agree with the defendant that it is far too early now
already to make an order concerning Liam's cost of tertiary
education. Similarly, when the time comes, the parents will no doubt
discuss and agree the appropriate tertiary institution; and
the
defendant will be obliged to pay half of those fees. Finally, the
cash amount claimed by the plaintiff for Liam's maintenance,
R6500
pm, is reasonable.
[24]
In the result I make the following order:
WHG
van der Linde
Judge,
High Court
Johannesburg
For
the plaintiff: Adv. JA Woodward SC
Instructed
by: Greensteins Attorneys
28
Sussex Road
Parkwood,
Rosebank
Johannesburg
Tel:
011 447 6007
Ref:
Mr Greenstein/bf
For
the first – fourth defendants: Adv. P Coetzee
Instructed
by: JNS Attorneys
Office
Level
Bram
Fischer Centre
93
Bram Fischer Drive
Ferndale,
Randburg
Johannesburg
Tel:
011 326 1066/1829
Ref:
Mr K Swart
Dates
trial: 25 – 26 May, 2017
Date
judgment: