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[2014] ZASCA 14
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B v B (952/12) [2014] ZASCA 14 (24 March 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 952/12
In
the matter between:
H[…]
M[…] D[…]
B[…]
.....................................................................................
APPELLANT
and
J[…]
B[…]
.........................................................................................................
RESPONDENT
Neutral
citation:
B[…] v B[…]
(952/12)
[2014] ZASCA 14
(24 March
2014)
Coram:
Lewis, Shongwe and Theron JJA and Swain and
Mocumie AJJA
Heard:
24 February 2014
Delivered:
24 March 2014
Summary:
Terms of antenuptial contract
inconsistent and incoherent: context did not clarify precisely what
the parties intended to achieve:
contract void for vagueness and
marriage thus in community of property.
ORDER
On appeal from:
North Gauteng High Court, Pretoria (Louw J sitting as court of first
instance):
The appeal is
dismissed with costs.
JUDGMENT
Lewis JA (Shongwe
and Theron JJA and Swain and Mocumie AJJA concurring):
[1]
This appeal turns on the interpretation of an antenuptial contract
signed by the parties, Mr H[…] B[…], the appellant,
and
Mrs J[…] B[…], the respondent, the day before their
marriage on 22 October 2005. Mr B[…] instituted divorce
proceedings against Mrs B[…] first in March 2006. These were
withdrawn. A year later he brought an action for divorce again,
and
withdrew that too. On 29 March 2007, for the third time, he sought a
decree of divorce and ancillary relief, asserting that
the marriage
was out of community of property and subject to the accrual system.
He set out the assets that he claimed as being
excluded from the
accrual and claimed his share of the accrual. And he claimed
repayment of a loan that he had made to Mrs B[…].
[2]
Mrs B[…] counterclaimed for maintenance, amongst other things,
and denied that the marriage was out of community of property,
asserting variously that she had been induced to enter into the
antenuptial contract by either duress or undue influence exerted
on
her by Mr B[…], and, in the alternative, that the contract did
not effectively exclude community of profit and loss,
and was void
for vagueness, or, in the third alternative, that it should be
rectified so as to reflect that the marriage was not
out of community
and that the accrual system did not operate.
[3]
At the outset of the hearing, the North Gauteng High Court (Louw J)
ruled in terms of Rule 33(4) of the Uniform Rules of Court,
and at
the instance of the parties, that the validity and effect of the
antenuptial contract, should be determined first and the
other claims
and counterclaims be deferred to a later hearing. Louw J concluded
that the antenuptial contract was void for vagueness
and that the
parties were married in community of property. Mr B […]
appeals against that order with the leave of the high
court, and Mrs
B[…] has noted a conditional cross appeal (leave having been
sought and granted by the high court shortly
before the hearing in
this court) in the event of this court finding that the antenuptial
contract is not void.
[4]
The allegations of undue influence and duress are not persisted with
on appeal and thus the only issue before us is the interpretation
of
the antenuptial contract. Because of its wording – which is on
the face of it contradictory and incoherent– I shall
set out
the terms fairly fully.
[1]
The legal provisions governing marriages by antenuptial contract will
then be briefly stated, and, thirdly, the context in
which it was
drawn and signed will be discussed.
The
terms of the antenuptial contract
[5]
The contract is between H[…] M[…] D[…] B[…]
and J[…] H[…], and states that they have
agreed:
‘
1
That there shall be no community of property between them.
2 That there shall
be no community of profit and loss between them.
3 That the marriage
shall be subject to the accrual system in terms of the Matrimonial
Property Act . . . 88 of 1984.
4 That for purposes
of proof of the
net value
of their
separate estates at the
commencement of the marriage
, the intended spouses declared that
the
net value of their separate estates
to be the following:
[my emphasis]
That
of H[…] . . .B[…]
a)
Sibanyoni Mining Industrial Close Corporation;
b)
Ampy Investments Close Corporation;
c)
Annuities;
d)
Policies.
That
of J[…] H[…]
a)
Jewellery
b)
Pension
c)
Policies.’
Note
that the reference to net values in the first part of the clause is
not followed through: no values are stated in respect of
any of the
assets listed, nor are they properly identified. The contract
continues:
‘
5
That the following assets of the parties or of any one of them listed
below and the stated values, as well as all debts in relation
thereto, or any other asset acquired by such party as a result of
his/her possession or former possession of such asset, will not
be
taken into account as part of such party’s estate at
either
the beginning or the dissolution of the marriage.
[My
emphasis.]
The assets of H[…]
. . . B[…] to be excluded in this manner is [sic] as listed
above and the assets of J[…]
H[…] to be excluded in
this manner is [sic] as listed above.
6 The parties record
that they will execute a statement in terms of section 6(1) of the
Act, reflecting the net values of their
respective estates at the
commencement of their intended marriage.’
[6]
It is immediately apparent that the wording makes no sense on the
face of it. The reference in clause 4 to net values is followed
by a
list of assets of each party without any values attached. Clause 5
then refers to ‘the following assets’ and says
that they
are as listed above – a reference, presumably, to the assets
listed in clause 4. These are the assets to be excluded
from the
accrual. But what, then, does clause 5 mean when it states that those
assets will not be taken into account as part of
either party’s
estate ‘at either the beginning or the dissolution of the
marriage’? Therein lies the main problem.
[7]
It is trite that in ascertaining the meaning of a contract a court
must have regard first to its wording. It must also consider
the
context or factual matrix in which it was concluded. That is so even
where the words on the face of it are clear.
[2]
And where the words are ambiguous or lack clarity that is
a
fortiori
so. But if the terms of a contract are so vague and incoherent as to
be incapable of a sensible construction then the contract
must be
regarded as void for vagueness, as the high court in this case held.
The
relevant provisions of the Matrimonial Property Act read with the
terms of the antenuptial contract
[8]
Before turning to the evidence as to the factual matrix it is
important to consider the legislative framework which forms part
of
it.
Section 2
of the
Matrimonial Property Act 88 of 1984
provides
that all marriages out of community of property in terms of an
antenuptial contract are subject to the accrual system
‘except
in so far as that system is expressly excluded by the antenuptial
contract’.
[9]
Section 4
of the Act sets out the manner in which the accrual of an
estate is to be determined and
s 5
excludes certain assets from the
joint estate of the parties as a matter of law.
Section 4(1)
(b)
(ii)
provides that ‘an asset which has been excluded from the
accrual system in terms of the antenuptial contract of the spouses,
as well as any other asset which he acquired by virtue of his
possession of the first-mentioned asset, is not taken into account
as
part of that estate at the commencement or the dissolution of his
marriage’.
[10]
As counsel for Mrs B[…] contended, if a specific asset is
excluded in the agreement its value is irrelevant in the
determination of the accrual. The reference in clause 4 of the
antenuptial contract in question to assets may have been intended
to
reflect that. But then the clause refers to value: ‘for
purposes of proof of the net value of their separate estates’,
it stated, the assets were those listed.
[11]
Section 6(1)
of the Act provides that where a party to an intended
marriage does not, for the purpose of proof of the value of his or
her estate
at the time of the commencement of the marriage, declare
the value in the contract, then he or she may do so within six months
of the marriage in a statement attested to by a notary.
Section
6(4)
(b)
provides that the net value of the estate of a spouse
at the commencement of the marriage is deemed to be nil if the value
was
not declared in the contract itself or in a statement
subsequently executed in terms of
s 6(1).
[12]
Clause 6 of the antenuptial contract, set out above, states that the
parties will execute a statement in terms of
s 6
of the Act, thus
indicating that the values were not determined at the outset but
would be provided later. This was apparently
what the parties
intended, and what the notary reflected when she recorded clause 6 of
the antenuptial contract. But no such statement
was ever made by
either of the parties. The consequence of that, if the contract were
proved to be valid, would be that
s 6(4)
(b)
of the Act would
become the default position, namely that the net value of the estate
would be deemed to be nil unless the contrary
were proved.
The
context
[13]
Does the context in which the antenuptial contract was concluded show
that the parties intended to exclude particular assets
from the
accrual, or to declare the value of their respective assets to be
excluded from the determination of the value of the
accrual on
dissolution of the marriage? The contract itself does not tell us,
given its contradictions. The question that arises,
then, is what the
objective facts were preceding the conclusion of the contract. These
may throw light on its construction.
[14]
A great deal of evidence was led in respect of the context for both
parties. Most of Mrs B[…]’s evidence, however,
centered
on her claim that she had signed the contract under duress or the
undue influence of Mr B[…]. She had never intended,
she
claimed, to marry subject to an antenuptial contract excluding
community of profit and loss. Such a marriage, she kept saying,
was
contrary to her Christian principles: it anticipated divorce. I shall
not traverse this evidence since on appeal it is conceded
that no
such duress or undue influence were proved. Mr B[…] too
conceded that they had not initially intended to marry
out of
community of property but that he had been advised, shortly before
the wedding, that it was preferable to do so in order
to protect
assets in the joint estate from creditors’ claims. (The
correctness of that advice is not in issue.)
[15]
Mrs B[…] testified that she had been forced to sign the
antenuptial contract the day before her wedding, not ever having
consulted with an attorney beforehand, and without knowing its
contents. The contract had been read to her, she said, but her
understanding of what it achieved differed materially from that of Mr
B[…] and of the notary who drafted it, Mrs Nunes. Nothing
turns on this, however, since evidence of the parties’
respective understandings of what the contract meant is not relevant.
Moreover, it is impossible to comprehend what each of them meant
having regard to their testimony as a whole.
[16]
What is clear, however, is that Mrs B[…] was not forced to
sign the contract the day before the wedding. She and Mr
B[…]
had consulted Mrs Nunes earlier in the week of the wedding, and she
had explained how the accrual system operated and
what their options
were. They had indicated which assets they wished to exclude from the
accrual, and she had made a note of these.
Mrs Nunes and staff in the
attorneys’ firm in which she worked confirmed the earlier
consultation, and the staff had witnessed
the signing of the contract
on a later occasion.
[17]
Mrs Nunes’ evidence also threw no light on the meaning of the
contract. She could not explain what it meant. The only
evidence of
any value that she proffered was that after the wedding she had
written to Mr B[…] on a number of occasions
reminding him that
he and Mrs B[…] should execute a statement in terms of
s 6
of
the Act. He had not done so, however, and responded that Mrs B[…]
refused to co-operate with him.
[18]
Although in his particulars of claim Mr B[…] asserted that the
assets he had excluded from the accrual had a particular
value, no
evidence was led in this regard. In effect, then, even if the
contract were valid, it was effectively one in community
of property
since nothing was excluded from the accrual. It is not necessary to
make any finding on this issue in view of the conclusion
to which I
come.
What
did the contract mean?
[19]
It is clear to me that the parties did intend to exclude community of
property and profit and loss and to adopt the system
of accrual: but
it is far from clear
how
they intended to do that. If the contract had included only the first
three clauses they would effectively have achieved a contract
out of
community of property, subject to the accrual system regulated by the
Act. But the clauses that followed are so contradictory
and
incoherent that in my view they vitiate the contract as a whole. No
certainty has been achieved as to what the contract meant
–
what the parties intended to achieve. The contract does not embody
terms that enable this court to give effect to what
their intention
might have been.
[3]
[20]
And it is trite that a court cannot make a contract for the parties.
This court cannot determine whether the parties intended
to exclude
certain assets from the accrual, or stated values of assets from the
value of the accrued estate. Nor can it ascertain
what was meant by
clause 5 where it stated that particular assets (without any
certainty as to what they were) would not be taken
into account at
the beginning or the dissolution of the marriage. And since they did
not have a common continuing intention as
to what they wished to do,
rectification (one of the alternative claims by Mrs B[…]) is
also not possible.
[21]
Accordingly the high court correctly concluded that the antenuptial
contract between the parties was void for vagueness and
the appeal
must be dismissed with costs.
C
H Lewis
Judge
of Appeal
APPEARANCES:
For
the Appellant: P A van Niekerk SC (with him N Hartman)
Instructed
by:
Van
Heerden & Brummer Inc, Witbank
Honey
Attorneys, Bloemfontein
For the Respondent:
N G D Maritz SC
Instructed
by:
Johan
van der Wath Inc, Ermelo
Schoeman
Maree Attorneys, Bloemfontein
[1]
I
shall set out only the wording and shall not reproduce the form.
[2]
See
KPMG
Chartered Accountants (SA) v Securefin Ltd
2009 (4) SA 399
(SCA) para 39 and the cases cited in that paragraph,
and
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA).
[3]
See
Namibian
Minerals Corporation v Benguela Concessions Ltd
[1996] ZASCA 140
;
1997 (2) SA 548
(A); S W J van der Merwe, L F van Huyssteen, M F B
Reinecke and G F Lubbe
Contract:
General Principles
4 ed (2012) at 193.