About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 602
|
|
L.G.V v J.H.V (born F) (6246/2008) [2010] ZAWCHC 602 (6 December 2010)
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
Case No: 6246/2008
In the matter between:
L G V
…..........................................................................................................................................
Plaintiff
and
J H V (born F)
…......................................................................................................................
Defendant
JUDGMENT DELIVERED ON 6
DECEMBER 2010
ALLIE, J
[1] This matter came before me as
the determination of separate issues of law and/or fact in terms of
Rule 33
(4).
The
issues to be so decided are set out in the court order granted on 26
March 2010 as follows:
1.1. whether the agreement annexed
to the defendant's counterclaim marked "X" which provides
inter alia,
for
the exclusion from the calculation of the accrual of the defendant's
estate, certain immovable property, is void and unenforceable;
1.2. whether the plaintiff donated to the defendant,
the properties so excluded, whether such donation is evidenced by
the said
agreement and whether as a consequence of the donation, the
said properties are excluded from any accrual sharing.
[2] The trial in the divorce action was accordingly
stayed pending the determination of the issues in this matter.
[3] The court order provides that for the purposes of
determining the issues, the parties record that the following facts
are common
cause:
3.1. the parties , on or about 26 August 2007, entered
into the written agreement which is annexure "X" to the
defendant's
counterclaim;
3.2. the properties are presently registered in the
name of the defendant;
3.3. at the time of concluding the agreement the
defendant was the registered owner of Erf 285 Portion of Witpoort
Farm JR285, Pinto
Place, Beaulieu, Kyalami, Midrand ("the
Beaulieu property");
3.4. at the time of concluding the agreement the
Beaulieu property was unencumbered;
3.5. at the time of concluding the agreement the
defendant made an offer to purchase Erf 1696, Witkoppen, Fourways
("the Fourways
property) which was subsequently accepted;
3.6. registration of transfer of the Fourways property
was effected thereafter.
[4] The parties are married to each other out of
community of property by virtue of an order of the then
Witwatersrand Local Division
of the High Court which authorised the
postnuptial registration of a Notarial Contract in terms of
Section
21(1)
of the
Matrimonial Property Act 88 of 1984
. The contract was
registered postnuptially on 16 November 2001. The parties were
married on 3 June 1996. The post-nuptial contract
provided that
there shall be no community of property and profit and loss that the
accrual system shall apply and that the nett
value of their
respective estates at the commencement of their marriage was nil.
[5] The defendant defended the divorce action
instituted by the plaintiff and filed a counterclaim which was later
amended. In the
counterclaim, defendant alleged that the plaintiff
commenced an adulterous affair during mid-2007. Defendant alleged
that on or
about 26 August 2007 subsequent to the plaintiff's
admitted adultery the parties entered into the written agreement
which is the
subject of this determination.
[6] Paragraph 10 of the agreement reads as follows:
"Jane and Lorenzo wish to record that the
Beaulieu property and the Fourways property inclusive of the
proceeds of the realisation
of either or both properties and any
growth thereon which would ordinarily constitute part of the accrual
of Jane's estate in the
marriage is to be specifically excluded from
any accrual sharing and/or calculation of the accrual of Jane's
estate in the event
of the parties' divorce or upon death as if the
properties had been excluded as part of the commencement value of
Jane's estate
as described in the parties' antenuptial contract
and in accordance with the provisions of
Section 4(1)(a)(ii)
of the
Matrimonial Property Act of 1984
."
[7]
In
her counterclaim, defendant contends in the alternative, that the
plaintiff donated the said properties to her and the agreement
is
evidence of such donation. In a further alternative, the defendant
alleged that it would be just and equitable that the plaintiff
forfeits his right to share in the accrual of defendant's assets
because plaintiff allegedly had an adulterous affair, emotionally
and mentally abused defendant, falsely represented that he wished to
start a family, spent excessive amounts of time away from
home and
falsely represented that he would provide a permanent home and a
stable environment.
[8] In his plea to the counterclaim, plaintiff admitted
that he had an adulterous relationship during mid-2007. Plaintiff
also admitted
that he wished to start a family, that he worked long
hours and travelled for work purposes from time to time. Plaintiff
admitted
the conclusion of the agreement but alleged that it was
void and unenforceable by virtue of the fact that the parties did
not approach
the court to have their agreement dated 26 August 2007,
registered postnuptially in terms of
Section 21(1)
of the
Matrimonial Property Act so
that their post-nuptial contract could
be varied.
[9]
Plaintiff
relies on the decision in
Honey
v
Honey
1992 (3) SA 609
(W) at 614 H -
1.
It was submitted further on behalf of plaintiff that the common law
rule of immutability of a matrimonial property regime applies
not
only to the change of a matrimonial proprietary regime but also to
the purported post nuptial amendment of a registered nuptial
contract. On plaintiffs behalf, it was finally contended that the
agreement is an amendment of the post-nuptial contract because
the
agreement states that
"the
properties are to be specifically excluded
from any accrual sharing and/or
calculation
as
if the
properties had been
excluded as part of the
commencement value of Jane's estate."
It
was accordingly contended on plaintiffs behalf that the deeming
provision purported to alter the existing commencement value
in the
post-nuptial contract and therefore purported to alter the
post-nuptial contract.
[10] On plaintiffs behalf, the allegation that
plaintiff donated the properties was rejected on the basis that he
did not own the
properties and he could therefore not donate them.
[11] To determine whether the parties intended to vary
the terms of their postnuptial contract with the agreement of
26 August
2007, the court has to first look at the ordinary meaning
of paragraph 10.
[12] The paragraph commences with a
mutual acknowledgment that the Beaulieu and Fourways properties and
the proceeds of their realisation
and any growth thereon would form
part of the accrual in the defendant's estate. This fact is not in
dispute. The paragraph goes
on to provide that in the event of
divorce or death, the properties will be treated
as
if
they had been
excluded as part of the commencement value of defendant's estate.
[13] When this latter part of paragraph 10 is read in
the context of the entire paragraph, it becomes clear that the
parties agreed
to exclude the properties from the accrual of the
defendant's estate rather than from the commencement value of her
estate.
[14] The deeming provision in
paragraph 10 of the agreement merely creates a situation where the
properties are deemed to be excluded
from the value of defendant's
estate on death or divorce. In this regard see
Pinkey
v
Race
Classification Board and Another
1966 (2) SA 73
(E) at 77 A - B
where the court
referred to the comments of Cave J in
R
v
Norfolk
County Council (1891) 60 L.J.Q.B 379 at 380:
"Generally speaking, when you talk of a thing
being deemed to be something, you do not mean to say that it is that
which it
is to be deemed to be. It is rather an admission that it is
not what it is to be deemed to be, and that, notwithstanding it is
not that particular thing, nevertheless ...it is to be deemed to be
that thing."
[15] When the contract is viewed against the common
cause fact of the plaintiffs adulterous relationship and the
parties' attempt
to reconcile then the rationale of paragraph 10
becomes clear. Plaintiff at the time, made the concession of the
properties because
he acknowledged his culpability in the adulterous
relationship and the problems in the marriage at the time. Plaintiff
does not
allege that any coercion or undue influence was brought to
bear on him which compelled him to sign the agreement. By all
accounts
the agreement appears to be one entered into by two
mutually consenting adults.
THE
PURPOSE OF REGISTRATION OF NUPTIAL CONTRACTS
[16] In the case of
Ex
Parte
Spinazze
& Another NNO
1985 (3) SA 650
(AD)
the Law of Holland was considered
with regard to formalities in the execution of nuptial contracts. It
was found that no registration
of the contract was required
inter
partes.
[17] The
Deeds Registries Act 47 of 1937
makes
provision in
Section 87
for the registration of an ante-nuptial
contract and for the formalities required for such registration to
occur.
Section 86
provides that an ante-nuptial contract that is not
registered shall have no force and effect against a person who is
not a party.
The formality of registering of an ante-nuptial
contract is clearly a requirement if a party wishes to rely on the
ante-nuptial
contract as against third parties.
[18]
Section 21
(1) of the
Matrimonial Property Act
provides
further for a court's authority if a nuptial contract is to
be registered post-nuptially. Such an application to court must
satisfy
the requirement that third parties will not be prejudiced by
the intended change in the matrimonial property regime and creditors
may accordingly object should their rights be adversely affected by
such a course.
[19] In
Ex
Parte
Spinazze
at 658
A -
C
the court found
that an ante-nuptial contract that was not registered in accordance
with the legal formalities is valid as between
the parties thereto.
See also Boberg's Law of Persons and The Family, 2nd edition at 195.
[20]
Section 6
of the
Matrimonial
Property Act makes
provision for the filing in the protocol of a
Notary Public of a statement declaring the commencement value of a
party's estate
where it was not given in the ante-nuptial contract
registered. Accrual sharing
"inter
partes"
is
clearly not regarded as an aspect that is vital to third parties and
the legislature provided for a situation where an registered.
Accrual sharing
"inter
partes"
is
clearly not regarded as an aspect that is vital to third parties and
the legislature provided for a situation where an aspect
that
affects accrual sharing need not be subject to the formalities of
registration in the Deeds Registry.
THE
AGREEMENT MARKED "X"
[21] Clearly the parties agreed when they entered into
the agreement in dispute, that the properties would have formed part
of the
accrual in the estate of the defendant. At that stage however
all that plaintiff had was a hope that the defendant's acquisition
of the properties would increase the value of her estate. For
example, after 26 August 2007, the properties could have been sold
at a loss as opposed to a gain.
[22] Plaintiff had no rights to the properties and
could accordingly not donate them to defendant. What he clearly did
was to relinquish
his right to share in the accrual of defendant's
estate in an amount equal to the value of the properties at the time
of divorce.
Paragraph 10 expressly refers to death or divorce and
also provides for no accrual sharing in the properties and its
growth, meaning
its growth up to the date of death or divorce.
[23] While the agreement dated 26 August 2007 is not an
ante-nuptial or postnuptial agreement registered in the Deeds
Registry
in accordance with the legal formalities, it is a bilateral
agreement between the parties varying the method of the
determination
of the accrual in the estate of defendant.
THE
IMMUTABILITY OF THE MATRIMONIAL PROPERTY REGIME
[24] The principle of immutability of a matrimonial
proprietary regime is clearly designed to protect third parties. The
requirement
of registration in the Deeds Registry fulfils the same
objective.
[25] The agreement
in
casu
unlike the
agreement in the case of Honey, does not purport to vary the
matrimonial property regime. The marital regime remains
one of out
of community of property with the inclusion of the application of
accrual system. The value of the accrual in the estate
of the
defendant does not impact on the rights of creditors and third
parties. The immutability of the matrimonial property regime
is not
an issue to be decided in this case. In a matter of this nature the
costs should follow the result.
It
is ordered that:
1. The agreement entered into between the parties
marked "X" and which is attached to the defendant's
counterclaim and
more particularly paragraph 10 thereof, is valid
and enforceable as between the parties.
2. The plaintiff did not donate the properties in
question to the defendant but he waived his right to share in the
accrual of defendant's
estate up to an amount equal to the value of
the properties or the value of the realisation of the properties on
death or divorce
in terms of the agreement marked "X"
annexed to defendant's counterclaim.
3. The plaintiff shall pay the costs.
ALLIE, J