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[2021] ZAGPJHC 563
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LNM v MMM (2020/11024) [2021] ZAGPJHC 563 (11 June 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2020/11024
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
NO
DATE:
11 June 2021
In
the matter between:
L[....]
N[....]
M[....]1
Applicant
and
M[....]2
M[....]3
M[....]4
Respondent
JUDGMENT
SIWENDU
J
Introduction
[1]
In this
application, the Court is called upon to determine whether there was
a valid customary marriage between the applicant and
the respondent
in terms of s 3(1) of the Recognition of Customary Marriages Act
120 of 1998 (the RCMA).
[1]
If
the Court finds there was a valid customary marriage, it must
determine the marital regime regulating it. In particular, the
Court
is called upon to determine whether the contract executed by the
parties on 23 September 2019, and registered at the Deeds
of Registry
on 7 October 2019, is valid and binding.
[2]
The applicant, Ms M[....]1, is 32-years old. She resides at [....]
A[....]
Street, Bryanston. She has a child from a previous
relationship who resides with her at the property. The respondent,
who is in
his early fifties, is employed as a General Manager at MTN
(Pty) Ltd in F[....]. He had two previous marriages and other
relationships
from which he has four children. He recorded the same
address as the applicant as his residential address.
[3]
The applicant seeks an order declaring that: (1) there is a valid
customary
marriage between her and the respondent; (2) the marriage
was in community of property; and (3) the antenuptial contract
entered
into by the parties on 23 September 2019 is null and void.
Ancillary to the standing of the antenuptial contract is a
determination
of the marital regime regulating the marriage, if one
is found to exist.
[4]
The respondent opposes the application on account that the relief
sought
by the applicant is not competent. He disputes that the
applicant has enforceable rights or that her rights have been
infringed,
warranting the order sought. In particular, he disputes
that: (1) there is a valid customary marriage; and (2) he consented
and
intended to marry the applicant by customary law. In the
alternative, and, if the Court finds there was a valid customary
marriage,
the respondent claims that the marriage is out community of
property by virtue of the antenuptial contract concluded on
23 September
2019. He contends that the antenuptial contract is
valid and regulates the matrimonial property regime, as one out of
community
of property and with accrual. Accordingly, the respondent
seeks to have the antenuptial contract enforced in the alternative
relief,
while the applicant seeks to have it declared null and void.
Background
[5]
The background to the application is largely common cause. I observe
at
this early stage that the stance by the respondent was that he
would not address all the factual averments in the applicant’s
affidavit, but only those facts pertaining to the antenuptial
contract, and the customs and traditions observed in terms of
customary
law. The applicant and respondent observe isiXhosa and
Xitsonga traditions and cultural practices.
[6]
The applicant and the respondent met on 16 April 2019 and instantly
commenced
a whirlwind romantic relationship. On 27 April 2019, within
two weeks of meeting each other, the respondent introduced the
applicant
to his family in Limpopo. On 28 April 2019, the
respondent’s family handed the applicant and the respondent a
letter to deliver
to the applicant’s family. The letter,
requesting the applicant’s hand in marriage, was handed to the
applicant’s
father the same day of their return to
Johannesburg.
[7]
A month later, on 25 May 2019,
lobola
negotiations commenced
between the two families at the applicant’s home in Soweto. The
negotiations, a payment of R50 000,
and an exchange of gifts
between the families, were embodied in a written agreement between
the two families. There is written
confirmation of the amount of
lobola
received on 26 May 2019, signed by representatives
and/or emissaries from both families.
[8]
All this culminated in an agreement of a date for a ritual/ceremony
on
15 June 2019. The applicant claims that this ritual and ceremony
started on 14 June 2019 when her family slaughtered a sheep to
welcome the respondent as a son in law. Bile was smeared on both of
them as a symbol of a binding customary marriage. On 15 June
2019,
celebrations and a ceremony followed the ritual. The applicant
included in her founding affidavit the invitation below which
reads:
A
Traditional Wedding Celebration
L[....]
& M[....]2
15
June 2019
Mr
Churchill Nkosi M[....]1 and the late Nomfanelo Zoliswa M[....]1
request the honour of your presence at the traditional wedding
of
their daughter
L[....]
M[....]1
&
M[....]2
M[....]4
son
of
Mrs
Girlie Mirriam M[....]4
Saturday,
15 June 2019
Venue:
946 Mbata Drive, White City, Jabavu, Soweto
GPS
coordinates: (…)
Time:
12:00 PM
For
more information kindly contact:
Ms
Lumka M[....]1 (…) / Mr Nkululeko M[....]1 (…)
[9]
On 28 June 2019, the applicant claims that she, emissaries, and an
entourage
travelled to Limpopo, where she was handed over to the
respondent’s family as the respondent’s wife. A sheep was
slaughtered
to introduce the applicant’s arrival to the
respondent’s family and his ancestral line. The formal handing
over ceremony
to the respondent’s family occurred on 29 June
2019. She stayed with the respondent’s family until they
returned to
Johannesburg.
[10]
According to the respondent, further customary celebrations
took place at the applicant’s
home in the Eastern Cape on 26
and 27 December 2019. The applicant refuted this. She claimed that
when they attended birthday celebrations
together, they did so as
husband and wife. None of the family members attended the event. She
contended that all the necessary
wedding celebrations were concluded
between May and June 2019.
[11]
The applicant claims that in August 2019, after the conclusion of the
customary marriage,
she and the respondent discussed the patrimonial
consequences of their relationship. The respondent had concerns about
his other
children and now wanted to protect their interests in the
event of his death. He also wanted to protect the applicant’s
proprietary
interests against potential claims by his ex-wives. The
parties approached Michael Krawitz & Company Attorneys, who drew
up
and registered the antenuptial contract referred to above.
[12]
The antenuptial contract records that: (1) the parties are unmarried;
(2) there is no community
of property and no profit and loss between
them; (3) the net value of the respondent’s estate is R10
million, on the other
hand, the net value of the applicant’s
estate is nil; (4) the marriage is subject to accrual; and (5) the
half share in the
property in Bryanston and the Mercedes Benz C250 D
are donated to the applicant.
[13]
According to the applicant, marital difficulties between the parties
started in March 2020.
She alleges that the respondent had an
extra-marital affair. As a result, she asked the respondent’s
mother to intervene.
Instead, on 22 March 2020, the respondent’s
mother and sister attempted to evict the applicant from the property
she shared
with the respondent. The respondent’s mother
allegedly called on the applicant’s father to fetch her as she
was no
longer welcome at the marital home. There was a second attempt
to evict the applicant from the house in May 2020. On 2 May
2020, the applicant was arrested under case number 14/05/2020 on a
charge of ‘theft under domestic violence’. As I
understand from the papers, there are pending criminal charges,
including a charge of trespassing, against the applicant.
[14]
The applicant claims that on her release, the respondent attempted to
evict her from the
marital home again. The applicant also claims to
have received a number of calls from the police based in Soweto
asking her to
vacate the house or face arrest. The respondent does
not dispute the turmoil, save to say that some of the aspects are
sub
judice
.
[15]
Even though the applicant disputed that she is gainfully employed, or
that her business
is trading, the respondent claims that the
applicant is a business owner and is also a 51% shareholder in a
company established
in 2019. When they first met, she had a lot of
debts incurred before the relationship. The applicant does not
dispute the debts
incurred in her personal capacity, or that the
respondent settled the debts on her behalf. The respondent claims
that he sought
to protect the interests of his children in the event
of his death, and he was not comfortable being married by customary
law without
an antenuptial contract.
[16]
The respondent claims that when he and the applicant discussed their
marriage, they agreed
that they would not marry in terms of customary
law because of its proprietary consequences. The essence of the
respondent’s
defence is that, despite the celebrations, it was
understood by all and sundry that a civil marriage would take place
between the
parties in due course. He claims that the various events
were pre-celebrations and observances of cultural practices in
anticipation
of a civil marriage to be concluded in November 2020.
They were a mark of respect for their families and their ancestral
line.
The respondent states that their shared intention was to
conclude a civil marriage governed by an antenuptial contract.
[17]
In August
2019, the respondent purchased a 1.11 carat diamond engagement ring,
and a platinum and diamond wedding band (valued at
R165 000 and
R29 000 respectively) for the applicant, and an 18 carat wedding
ring for himself, valued at R17 000.
He claims that the purchase
was in anticipation of a civil marriage in the following year, in
November 2020. Needless to say, the
civil marriage has not occurred
and the customary marriage was not registered.
[2]
[18]
On the other hand, in reply, the applicant claims that the rings were
purchased in June
2019. One of the rings had cracked and had to be
adjusted for size. When the parties received the rings, they held a
ring blessing
prayer with a priest and wore the rings immediately
thereafter, from 4 August 2019. She claims that the respondent
provided the
Court with valuation slips, rather than receipts in
proof of the purchase. She attached the proof of purchase to her
replying affidavit.
[19]
The applicant disputed that the antenuptial contract was entered into
in anticipation of
a civil marriage in November 2020. She claims that
discussions about obtaining legal advice to conclude the antenuptial
contract
commenced on 2 August 2019, rather than 5 August 2019,
after
they concluded the customary marriage. Her contention is that
even though they wanted the marriage to be in community of property,
they only agreed to change the marital regime after the conclusion of
the customary marriage.
[20]
The applicant and the respondent first approached STBB Attorneys. The
applicant’s
version is that, by this time, she and the
respondent knew that they were married under customary law. When they
sought the advice
of STBB Attorneys, they were informed that they
needed to launch a court application to obtain a court order
permitting the registration
of the antenuptial contract. Her version
is that because they ostensibly wanted the antenuptial contract to
secure her interest
in the matrimonial home, they both agreed that
entering into an antenuptial contract after the marriage would not
make a difference.
They did not want to incur the legal costs of a
court application. She claims that they agreed to apply the
antenuptial contract
terms
retrospectively
to their marriage.
The
existence of a customary marriage
[21]
The main contention before the Court is the meaning to be attributed
to the events and
celebrations between 27 April 2019 to 29 June 2019.
The respondent contends that the letter was delivered merely as an
indication
of his intention to marry and to commence
lobola
negotiations. He argues that the rituals did not bind the parties in
a customary marriage, and that the celebratory events did
not
constitute a customary wedding. He claims that he had no intention to
marry under customary law, and did not consent to a marriage
by
customary law.
[22]
The
applicant claims that it was only after she consulted with her
attorneys that she learnt that the antenuptial contract was null
and
void. It is trite in law that an antenuptial contract must be
executed before the marriage. It must be registered within three
months after the date of its execution (or within a period as a court
may allow) as per s 87 of the Deeds Registries Act 47
of 1937
(the
Deeds Registries Act).
[3]
I
return to this aspect later in the judgment.
[23]
I
start by addressing the question of whether the applicant is entitled
to seek declaratory relief. Ms Makapela, (for the
respondent) argued
that the court in
Proxi
Smart Services (Pty) Ltd v Law Society of South Africa
,
[4]
in dealing with declaratory orders, stated that a court will not
grant relief where there is a financial commercial or derivative
interest which is not only indirect but also hypothetical, abstract
or academic. She also argued that the court, in an earlier
decision
in
Ex
parte Noriskin
,
[5]
took the principle further and held that a court will not grant such
an order where the issue raised before it is hypothetical,
abstract
and academic, or where the legal position is clearly defined in
legislation or statute The argument is not sustainable
and
unfortunately portrays the applicant as a ‘gold-digger’,
without a proper foundation.
[24]
I agree with Mr Thompson (for the applicant) that the question of
whether the applicant
is married or not is important. A marriage has
personal and public consequences, and there are legal reciprocal
duties flowing
from it. A determination of the applicant’s
status is not only a question that affects the applicant’s
right to dignity,
but, as the facts demonstrate, it directly
implicates her right to equality and protection under the law.
[25]
Given what has transpired between the parties (and particularly the
charges the applicant
now faces before the Magistrate’s Court
for theft and trespassing) a declaration of her legal status affects
not only the
question of her patrimonial rights in her current
relationship, but her defence in the pending cases. This is apart
from the effect
on her future rights – including the freedom to
form another relationship, marry, and freely determine the marital
regime
of her next marriage, should she wish to do so in future. In
view of the respondent’s denial and the circumstances under
which he does so, the question of the applicant’s marital
status has substantial consequences for her. I find it is a question
cognisable by the Court and a declaratory order is an appropriate
relief.
[26]
The second
issue is whether the parties concluded a valid customary marriage in
terms of
s 3(1)
of the RCMA. That question pivots on the
respondent’s assertion that he intended something other than a
customary law marriage
.
Ms
Makapela contends that an essential requirement under
s 3(1)(a)(ii)
of the RCMA is that the parties must not only consent to the
marriage, but that they must also consent to a marriage
under
customary law
.
[6]
[27]
The argument advanced by the respondent engages the question of
whether, despite
his denial, an intention to conclude a customary
marriage can be imputed to him. It is a factual question and a
question of law.
[28]
On
the question of consent, I have taken account of the caution by the
Constitutional Court in
MM
v MN & Another
[7]
where, albeit in the context of a polygamous marriage, the court
observed that—
‘…
courts
must understand concepts such as “consent” to further
customary marriages within the framework of customary law,
and must
be careful not to impose common-law or other understandings of that
concept. Courts must also not assume that such a notion
as “consent”
will have a universal meaning across all sources of law.’
[29]
I pause to
mention that when the decision in
MM
v MN
is
read together with the SCA’s decision in
Mbungela
v Mkabi
,
[8]
both cases point to the open, generous, flexible communal spirit of
customary law, which when correctly embodied, places a high
premium
to the right to dignity and the community beyond narrow
individualistic interests.
[30]
To my mind, having regard to the facts before me, even within the
bounds of the flexibility
generally recognised under customary law,
all the markers and essential rituals necessary to form a customary
marriage were performed
in this case. While there may be subtle
differences in the customs and practices relating to the conclusion
of a customary marriage,
the respondent has not alluded to any
particular Xitsonga customs which differentiate the parties’
celebrations from the
customs followed to conclude a valid customary
marriage. In addition, even though this was not imperative, there was
a ‘handing
over’ of the applicant to the respondent’s
family. The parties cohabited shortly before and after these
celebrations
at the Bryanston property.
[31]
Despite the attempt to recast the events as merely cultural
observances and celebrations,
and thus downplay their significance,
the invitation to the customary celebrations on the 15 June 2019 is
inconsistent with the
respondent’s version. It was framed as ‘
a
traditional wedding celebration’
involving both parties’
families. Over and above this, the respondent’s affidavit
includes amorous WhatsApp exchanges
between him and the applicant on
5 August 2019, a month after the celebrations. In one of the intimate
exchanges, the applicant
refers to the respondent as ‘
my
husband’
and the respondent refers to the applicant as ‘
my
wife’
in reply. There is no evidence that the respondent
refuted this reference, corrected the applicant, or that they were
made in jest.
He accepted her as his ‘
wife’
.
[32]
Apart from the above, what defeats the respondent’s denial of
the customary marriage,
are the emails of his communication with STBB
Attorneys (the first lawyers the parties consulted). The letter from
Mr Tony Newell
of STBB attorneys to the respondent is revealing. Mr
Newell informs the respondent, in a clear acknowledgement that there
was a
marriage between the parties, that: ‘
I think you need
to register your marriage with Home Affairs as we will probably need
to attach a copy of the certificate to the
Court Application…
’
On 5 August 2019, the respondent informed the attorneys in a reply
that he would send documents to ‘
kick start the court
application’
the next day. Contrary to the respondent’s
denial, the facts show that he knew, was aware of, and accepted that
he and the
applicant had concluded a valid customary marriage.
[33]
As at 5 August 2019, the respondent and the applicant knew that an
application to the High
Court would be necessary to register the
antenuptial contract. They sought to circumvent a need for a court
application to change
the marital regime. They approached different
law firm, Michael Krawitz & Company Attorneys to assist them. The
parties instructed
Mr Krawitz, the attorney/notary assisting them,
that they were not married. I deal with this fully later in the
judgment.
[34]
I also note that the respondent has been married and divorced on two
previous occasions.
I expect that he would be
au fait
with the
legal consequences of a marriage and dissolution thereof. His conduct
demonstrates nothing to support a lack of consensus
and/or a lack of
consent about entering the customary marriage. To the contrary, it
demonstrates the manifestation of his consent
in all respects. I find
his denial of the customary marriage implausible, untenable, and it
falls to be rejected. Accordingly,
I hold that as of 29 June 2019,
the respondent had consented and concluded a valid customary marriage
with the applicant as envisaged
in
s 3(1)
of the RCMA.
The
antenuptial contract
[35]
The last issue concerns the validity and
standing of the antenuptial contract, and the ancillary question of
which matrimonial property
regime governs the customary marriage. The
parties consistently refer to an ‘antenuptial contract’
throughout these
proceedings. It will become evident in the judgment
that such a reference is a misnomer. The applicant even referred to
the antenuptial
contract as an ‘
amendment’
or a ‘
variation
’
of the existing matrimonial property regime.
[36]
The legal issues raised necessitate that I
revisit the provisions of the
Deeds Registries Act, the
Marriage Act
25 of 1961 (the ‘Marriage Act’), the Matrimonial Property
Act 88 of 1984 (the ‘MPA’), and
the RCMA. It is also
necessary to consider the relevant case law. Thereafter, I consider
their cumulative effect on customary law
marriages, and decide on the
validity of the so-called ‘antenuptial contract’ at
issue.
[37]
The
proprietary consequences of the customary marriage concluded by the
parties are regulated by s 7(2) of the RCMA.
[9]
A
customary marriage will be in community of property and profit and
loss, unless specifically excluded by the parties in an antenuptial
contract.
I
pause to mention that the consequence of this provision is to place
customary marriages on the same regulatory footing as a civil
law
marriage.
I
also note that the subsection preserves the proprietary interest of
pre-existing partners, in that the community of property regime
will
not apply
where one of them has a pre-existing marriage or partner. Given the
undisputed fact that the respondent was a divorcee, and that
the
applicant was not married, the customary marriage was one in
community of property and with profit and loss by operation of
law.
If parties wish to avoid the consequences of a marriage in community
of property, then they must
specifically
exclude
these consequences by concluding an antenuptial contract.
[38]
Section 86 read with
s 87
of the
Deeds
Registries Act are
relevant in this regard, and state that:
‘
86.
Antenuptial contracts to be registered—
An
antenuptial contract executed before and not registered at the
commencement of this Act or executed after the commencement of
this
Act, shall be registered in the manner and within the time mentioned
in section eighty-seven, and unless so registered shall
be of no
force or effect as
against any person who is not a party thereto.
[Emphasis added]
87.
Manner and time of registration of antenuptial contracts—
(1)
An antenuptial contract executed in the Republic shall be attested by
a notary and shall be registered in a deeds registry within
three
months after the date of its execution or within such extended period
as the court may on application allow.’
[39]
It is trite in law that an antenuptial
contract can only be entered into by the parties
before
the marriage. As set out in
Wille’s
Principles of South African Law—
‘
Such
a contract, whether in writing or not, is always binding on the
parties themselves after the marriage (Grotius 2.12.4, Voet
23.4.2,
Ex
parte Weight and Weight
1906 TS 709
;
Fisher
v Fisher
1911 WLD 71)
but it has no force or effect against any person unless
it has been duly registered in a deeds registry.’
[10]
[40]
The
result is that, a
lthough
an antenuptial contract may not have been executed and registered in
terms ss 86 and 87, it is valid and binding between
the married
parties. However, it is of no force or effect as against any person
who is not a party to it.
[11]
[41]
This brings me to the standing of the
‘antenuptial contract’. Based on the papers before me,
conversations about the
execution and registration of the antenuptial
contract commenced around 2 August 2019,
after
the customary marriage was concluded. These facts have relevance on
whether there is a valid antenuptial contract in law in terms
of the
legislative requirements.
[42]
Despite
the statutory provisions and requirements, Ms Makapela argued that I
must rule that the marriage is one out of community
of property (with
the inclusion of the accrual system) on account of the contract
executed on 23 September 2019. She argued that
I should follow the
court’s decision in
SMS
v VRS
[12]
and find that the antenuptial contract is a ‘
postnuptial
contract
’.
[43]
In
that case, the parties concluded a customary marriage, followed by a
civil marriage under the Marriage Act four years later.
At the time
of entering into the civil marriage, the parties had verbally agreed
to be married out of community of property, with
the exclusion of the
accrual system. A contract embodying this verbal agreement was
subsequently registered at the Deeds Registry
a month after the civil
marriage was concluded. The validity of the contract was disputed at
the divorce proceedings. The court
deemed the ‘
verbal
agreement’
between
the parties to be an ‘
informal
ante-nuptial contract’
,
and held that the subsequent civil marriage was out of community of
property.
[13]
It further held
that it was binding on third parties, due to the fact that the
contract was registered within three months of its
execution, i.e.
that they complied with the stipulated time periods under the
Deeds
Registries Act, calculated
from the date of the civil marriage.
[44]
The
decision in
SMS
v VRS
is
based on an interpretation of
s 10
of the RCMA, which envisages a
change of the marriage system by entering into a marriage in terms of
the Marriage Act.
[14]
Although
the court referred to the contract as a ‘postnuptial’
contract for the sake of convenience, it treated the
contract between
the parties in
SMS
v VRS
as an antenuptial contract registered postnuptially. Thus, the court
in
SMS
v VRS
enforced the contract without a preceding court order authorising the
registration of the antenuptial contract postnuptially.
[45]
Yet,
s 88
of the
Deeds Registries Act
states
that:
‘
Notwithstanding
the provisions of sections eighty-six and eighty-seven the court may,
subject to such conditions as it may deem
desirable, authorize
post-nuptial execution
of a notarial contract having the effect of an antenuptial contract,
if the terms thereof were agreed upon between the intended
spouses
before the marriage, and
may order the
registration
, within a specified
period, of any contract so executed.’ [Emphasis added]
[46]
Section 88
must be distinguished from
s 89
of the
Deeds Registries Act which
deals with the registration of
postnuptial contracts.
Section 89
provides:
‘
89.
Registration of postnuptial contracts
—
(1)
The provisions of
sections 86
and
87
shall
mutatis mutandis
apply in respect of—
(a)
…
(b)
a contract in terms of
section 21
of the
Matrimonial Property Act,
1984
.
(2)
…’
[47]
Accordingly,
Section 89(1)(b)
must be read
together with
s 21
of the MPA and, in this case, the RCMA.
Section 21(1)
of the MPA states that:
‘
A
husband and wife, whether married before or after the commencement of
this Act, may jointly apply to a court for leave to change
the
matrimonial property system, including the marital power, which
applies to their marriage, and the court may, if satisfied
that—
(a)
there are sound reasons for the proposed change;
(b)
sufficient notice of the proposed change has been given to all the
creditors of the spouses; and
(c)
no other person will be prejudiced by the proposed change,
order
that such matrimonial property system shall no longer apply to their
marriage and authorize them to enter into a notarial
contract by
which their future matrimonial property system is regulated on such
conditions as the court may think fit.’
[48]
The difference between s 88 and s 89
(read with s 21(1)), and their respective effects, is nuanced.
Section 88
caters for a scenario where the parties to a marriage
agreed to an antenuptial contract
before
the marriage, but did not execute and register same timeously. It
allows the parties to approach the court for the postnuptial
registration of the antenuptial contract. Although executed and
registered
after
the marriage, it will have a
retrospective
effect if sanctioned by the court
.
The
court has the power to set conditions to such a registration.
[49]
On
the other hand,
s 89
of the
Deeds Registries Act envisages
a scenario where parties accepted a marriage under one matrimonial
property regime, but wish to alter their regime to another.
In that
instance, if sanctioned by the court, the effective date of the
change will be from the date of the registration of the
contract,
hence the reference to a ‘postnuptial contract’. Under
both
s 88
and
s 89
, a court
must
authorise both (1) the
execution
and
(2) the
registration
of contract.
[15]
[50]
Accordingly,
in conjunction with
s 7(2)
of the RCMA referred to in paragraph
[37] above, which requires parties to a customary marriage to
specifically exclude the community
of property and profit and loss by
executing an agreement to this effect,
s 7(5)
of the RCMA
integrates the requirements contained in
s 21(1)
of the MPA in the
process regulating the change of the marital regime.
[16]
Consequently, in my view, whether parties conclude a customary
marriage or a civil marriage, and in line with the constitutional
and
legislative intent to place customary marriages on par with all other
marriages, the legal requirements for (1) the registration;
and (2)
the alteration of matrimonial regime after a marriage, remain the
same.
[51]
The provisions of
s 89
of the
Deeds
Registries Act, read
with
s 21(1)
of the MPA, were applicable to
the circumstances of the parties in this instance. The parties could
only enter into a postnuptial
contract, as opposed to an antenuptial
contract. On the evidence, there was no agreement between the parties
prior
to their marriage specifically excluding marriage in community of
property. By misleading the attorneys, the parties impermissibly
registered an antenuptial contract. The parties failed to comply with
the requirements for the valid registration of a postnuptial
contract, which would have been the correct procedure to follow.
[52]
Mr
Thompson argued, based on a longstanding decision of this court in
Honey
v Honey
,
[17]
that parties may not postnuptially amend their marital regime without
complying with the legislative requirements, even if only
between
themselves. In
Honey
,
although the postnuptial contract was notarially executed, it was not
sanctioned by the court in terms of
s 21(1)
of the MPA. The court
held the contract to be invalid not merely against third parties, but
also between the parties
inter
se
.
[18]
[53]
The
approach in
Honey
v Honey
was
followed in a more recent case of
SB
v RB
,
[19]
where the court stated that, despite the potential for absurd
consequences in the case before it, ‘[t]he
Honey
decision cannot be criticised in the current legislative milieu…’
I observe further that the court in
SB
v RB
made
reference to ‘the immutability principle’. According to
Lawsa
,
‘The immutability system means that all postnuptial variations
by spouses of the matrimonial property regime are invalid
and
contracts concluded between the parties on that basis cannot be
enforced, even as between the parties themselves.’
[20]
One of the exceptions to the principle being the registration of a
postnuptial contract with the leave of the court, in accordance
with
the provisions of
s 21(1)
of the MPA.
[54]
Having regard to the overall legislative
scheme governing marriages, customary marriages and civil unions, I
do not consider myself
bound by
SMS v
VRS.
The cases are distinguishable. As
I understand from the respondent’s papers, the ‘
antenuptial
agreement
’ was intended to bind
third parties, as he sought to protect the applicant from potential
claims by his ex-wives and to provide
for his children. Therefore, it
could not have been merely an ‘
informal
arrangement
’ between them. A
further distinction is that the parties were married once, and by
customary law. There was no subsequent
civil marriage entered into
between the parties.
Section 10
of the RCMA, which forms part of the
foundation for the decision, does not apply.
[55]
I find that an acceptance of Ms Makapela’s
argument would nullify the current legislative scheme, render the
legal certainty
and protections afforded by it meaningless, and open
the floodgates of litigation.
[56]
The only pathway to the registration of a
postnuptial contract after marriage is with the leave of the court.
The court must sanction
both the execution and registration thereof.
Any act by the parties purporting to postnuptially change their
matrimonial property
regime without the leave of the court is invalid
and
void ab initio
.
Further, a variation or amendment which seeks to alter the regime,
must adhere to the requirements set out in
s 89.
[57]
Accordingly, I agree with Mr Thompson that
the applicant and the respondent knew that an application in terms of
s 21
of the MPA to change their
matrimonial
property regime would be a necessary but costly affair, and sought to
circumvent the prescribed procedure in the manner
set out above.
[58]
I find that the so-called antenuptial contract executed on 23
September 2019 and registered
on 7 October 2019 invalid and
void
ab initio
. The matrimonial property regime governing the
customary marriage between the parties is one in community of
property and profit
and loss.
Costs
[59]
Mr Thompson argued I should award costs against the respondent on an
attorney and client
scale as a mark of the Court’s displeasure.
Despite the favourable outcome, a serious consideration for the Court
is that
the respondent and the applicant misled an officer of the
court. Although disclosed by the applicant, the conduct warrants the
censure of the Court. Accordingly, the applicant is entitled to half
of her legal costs.
Accordingly,
the following order is made:
1.
On 29 June 2019 the applicant and the respondent concluded a
valid
customary marriage in community of property and of profit and loss as
envisaged by
s 3
of the
Recognition of Customary Marriages Act
120 of 1998
.
2.
The antenuptial contract registered by the applicant and the
respondent on 7 October 2019 with the Deeds Registry,
Johannesburg, is declared null and void for the failure to comply
with
s 89
of the
Deeds Registries Act 47 of 1937
, read with
Matrimonial Property Act 88 of 1984
.
3.
The respondent is liable for 50% of the applicant’s party
and
party costs.
T
SIWENDU
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ and/or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for hand-down is
deemed to be 10h00 on
11 June 2021.
Date
of hearing:
29 April 2020
Date
of judgment:
11 June 2021
Appearances:
Counsel
for the applicant:
CE Thompson
Attorney
for the applicant:
Martin Vermaak Attorneys
Counsel
for the respondent:
L Makapela;
S Qagana
Attorney
for the respondent:
Victor Nkhwashu
Attorneys
[1]
Section
3(1) of the Act provides as follows:
‘
For
a customary marriage entered into after the commencement of this Act
to be valid—
(a)
the prospective spouses—
(i)
must both be above the age of 18 years;
and
(ii)
must both consent to be married to each
other under customary law; and
(b)
the marriage must be negotiated and
entered into or celebrated in accordance with customary law.’
[2]
Section
4(1) of the RCMA provides: ‘The spouses of a customary
marriage have a duty to ensure that their marriage is registered.’
In terms of s 4(3)(b) it must be registered within a period of three
months
after
the conclusion of the marriage. However, this must be read with
subsection 4(9) which states, ‘Failure to register
a customary
marriage does not affect the validity of that marriage.’
[3]
Section
87(1)
of the
Deeds Registries Act provides
: ‘An antenuptial
contract executed in the Republic shall be attested by a notary and
shall be registered in a deeds registry
within three months after
the date of its execution or within such extended period as the
court may on application allow.’
[4]
Proxi
Smart Services (Pty) Ltd v Law Society of South Africa
2018 (5) SA 644
(GP); [2018] ZAGPPHC 333.
[5]
Ex
parte Noriskin
1962 (1) SA 856 (D).
[6]
See
note 1 above.
[7]
MM
v MN & Another
2013 (4) SA 415
(CC); [2010] ZAGPPHC 24 para 49.
[8]
Mbungela
and Another v Mkabi and Others
2020 (1) SA 41 (SCA); [2019] ZASCA 134.
[9]
Section
7
of the RCMA provides:
‘
(1)
…
(2)
A customary marriage entered into after the commencement of this Act
in which a spouse is not a partner in any other existing
customary
marriage, is a marriage in community of property and of profit and
loss between the spouses, unless such consequences
are specifically
excluded by the spouses in an antenuptial contract which regulates
the matrimonial property system of their
marriage.
(3)
Chapter III and sections 18 19, 20 and 24 of Chapter IV of the
Matrimonial Property Act, 1984 (Act No. 88 of 1984), apply
in
respect of any customary marriage which is in community of property
as contemplated in subsection (2).’.
[10]
F
du Bois
Wille's
Principles of South African Law
5
ed at 109.
[11]
See
S
v S
[2015] ZAKZDHC 43; also reported as
KS
v MS
2016 (1) SA 64
(KZD). See also
Ex
parte Minister of Native Affairs In Re Molefe v Molefe
1946 AD 315
at 318.
[12]
SMS
v VRS
[2019] ZALMPPHC 5. Counsel for the respondent contended that the
facts in
SMS
v VRS
are on all fours with those of the present matter, but for the fact
that the proceedings in that matter were divorce proceedings.
[13]
Ibid
paras 20-21.
[14]
Section
10 of the RCMA provides—
‘
(1)
A man and a woman between whom a customary marriage subsists are
competent to contract a marriage with each other under the
Marriage
Act, 1961 (Act No. 25 of 1961), if neither of them is a spouse in a
subsisting customary marriage with any other person.
(2)
When a marriage is concluded as contemplated in subsection (1) the
marriage is in community of property and of profit and
loss unless
such consequences are specifically excluded in an antenuptial
contract which regulates the matrimonial property system
of their
marriage.
(3)
Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the
Matrimonial Property Act, 1984 (Act No. 88 of 1984), apply
in
respect of any marriage which is in community of property as
contemplated in subsection (2).
(4)
Despite subsection (1), no spouse of a marriage entered into under
the Marriage Act, 1961, is, during the subsistence of such
marriage,
competent to enter into any other marriage.’
[15]
Sections
88 and 89 may further be distinguished from the circumstances
envisaged in
s 87
of the
Deeds Registries Act. Section
87 permits
the registration of an antenuptial contract (with the leave of a
court) after the lapse of the stipulated three-month
period, but
only where the antenuptial contract was already executed before the
marriage.
Section 87
is not applicable in these circumstances, given
that the antenuptial agreement was entered into between the parties
after the
customary marriage was concluded and only executed
thereafter.
[16]
Section
7(5)
of the RCMA provides: ‘(5) Section 21 of the Matrimonial
Property Act, 1984 (Act No. 88 of 1984) is applicable to a customary
marriage entered into after the commencement of this Act in which
the husband does not have more than one spouse.’
[17]
Honey
v Honey
1992 (3) SA 609 (W).
[18]
In
EA
v EC
[2012] ZAGPJHC 219, the court had to determine the validity of an
amendment/revocation of an antenuptial contract. The
amendment/revocation
was purportedly effected in terms of a tacit
universal partnership. Relying on the decision in
Honey
v Honey
(note 21 above), it found that even with the mutual consent of the
parties, this could not be done without the leave of the court.
[19]
SB
v RB
[2014] ZAWCHC 56
;
[2015] 2 All SA 232
(ECLD, George) para 35.
[20]
Lawsa
Vol
28(2) 3 ed para 124.