About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 121
|
|
H.P.V.N v M.V.N (68955/18) [2021] ZAGPPHC 121 (12 February 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 68955/18
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:
12 FEBRUARY 2021
In
the matter between:
V
N[...]: H
P
EXCIPIENT /DEFENDANT
(IDENTITY
NUMBER: …)
and
V
N[...]:
M
RESPONDENT/ PLAINTIFF
(IDENTITY
NUMBER: …)
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives
by email. The judgement is further uploaded to the electronic file of
this matter on Caselines by the Judge or his/her secretary.
The date
of this judgment is deemed to be 12 February 2021.
JUDGMENT
COLLIS
J
INTRODUCTION
[1]
On 20 September 2018, the plaintiff (the respondent herein)
instituted
divorce proceedings against the defendant (the excipient
herein).
[2]
Pursuant to the summons being served on the defendant, he raised an
exception,
wherein he alleges that prayer 2 of the particulars of
claim, wherein the plaintiff seeks a declaratory order, lacks the
necessary
averments to sustain a cause of action.
[3]
“
An
exception is a legal objection to the opponent's pleading.” It
complains of a defect inherent in the pleading: admitting
for the
moment that all the allegations in a summons or plea are true, it
asserts that even with such admission the pleading does
not disclose
a cause of action or a defence,
as
the
case
may
be.
[1]
[4]
In order to succeed an excipient has a duty to persuade the court
that upon
every interpretation which the pleading in question, and in
particular the document on which it is based, can reasonably bear; no
cause of action or
defence
is
disclosed;
failing
this
the
exception
ought
not
to
be
upheld.
[2]
[5]
The exception taken reads as follows:
“
2.
(i)
The
agreement allegedly concluded between the parties in terms of
annexure “B” and whereupon the Plaintiff relies, is
not
alleged to have been concluded with the leave of the Court in terms
of
Section 21
of the
Matrimonial Property Act, 88 of 1984
, and was
not
so
entered
into.
(ii)
In
terms of the Law, parties are not able to post-nuptially amend an
ante-nuptial contract without first having obtained the leave
of the
Court as is envisaged in
Section 21(1)
of the
Matrimonial Property
Act, 88 of 1984
, whether such amendment
is intended to have
effect inter partes only or not.
(iii)
The contract whereupon the Plaintiff relies for her claim in
prayer 2 of the Plaintiff’s particulars of claim, and pleaded
in paragraph
9
thereof, and is contained in annexure “B”
to the Plaintiff’s
particulars
of claim,
is
void
and
of
no effect.
(iv)
Accordingly, the Plaintiff’s particulars of claim is bad in
law and the Plaintiff's particulars of claim do not disclose a
cause
of action
in respect
thereof.
3.
(i)
Further,
the Plaintiff on a proper construction of the Plaintiff’s
particulars of claim is seeking to acquire one-half of
the
Defendant’s immovable property situated at […].
(ii)
The
contract entered into between the parties, pleaded by the Plaintiff
and is contained in annexure “B” to the particulars
of
claim, does not comply with the provisions of the
Alienation of Land
Act, 68 of 1981
, and is invalid to that extent as it does not contain
and description of the immovable property which the
Plaintiff
is seeking
to
claim
a share of.
(iii)
In the premises, for that further reason, the claim in prayer 2 of
the Plaintiff's particulars of claim is bad in law and not supported
by a cause of action.
4.
(i)
Further, the agreement relied upon by the plaintiff in annexure
“B” to the plaintiff's particulars of claim is an
agreement
which purports to regulate terms to come into effect if the
parties were to divorce in future.
(ii)
The agreement in annexure “B” is, ex facie the written
contract, an agreement injurious to the institution of marriage,
and
would encourage divorce and is for
that reason contra bonos
mores,
void and unenforceable.”
[6]
The application is opposed by the respondent.
BACKGROUND
[7]
The parties were married to each other on 15 December 2006, out of
community of property,
with the exclusion of the accrual system.
[8]
A day prior thereto and on the 14th December 2006, at
Johannesburg, the
parties entered into an Ante-nuptial contract. This
contract is annexed to the summons as annexure “A”.
[9]
The material terms of the Ante-nuptial contract concluded between
them, was
that there would be no community of property between the
parties; that there would be no community of profit and loss between
them
and that the accrual system specified in Chapter 1 of the
Matrimonial Property Act, 88 of 1984 was specifically excluded.
[10]
Some years later on or about 10 March 2016, at Kempton Park, the
parties then concluded a purported
agreement in writing, a copy of
which is annexed to the particulars of claim as annexure “B”.
[11]
In terms of the ‘Bevestigingskontrak’ contained in
annexure “B”, the
parties ostensibly confirmed a prior
written agreement concluded between them, in terms whereof the
parties agreed that they were
inter partes
married in
community of property, if they were to divorce in future.
[12]
Clause A of the ‘Bevestigingskontrak’ provides as
follows:
“
A.
NADEMAAL die partye ten tyde van huweliksluiting ‘n skriftelike
ooreenkoms inter partes aangegaan het in terme waarvan,
afgesonder
van die notariele huweliksvoorwaarde kontrak, die partye inter partes
binne gemeenskap van goed getroud is. Met ander
woorde, alle
krediteure uitgesluit, en ook die afsterwe van een van die partye,
indien die partye sou skei vir welke rede ook al,
sal die
vermoensgevolge van die huwelik behandel word tussen hulle asof hulle
binne gemeenskap van goedere getroud is.”
EXCIPIENT’S
SUBMISSIONS
[13]
As
a general rule, all marriages concluded in terms of the Common Law
create communal property and are in community of property,
unless
they are concluded in terms of an Ante-nuptial contract in terms of
which community of property, and of profit and loss,
is excluded.
[3]
In the present instance the parties as of date of marriage, were
married out of community
of
property.
[14]
To
change a marital property regime, parties would have to apply to
court as regulated by
section 21
of the
Matrimonial Property Act, 88
of 1984
.
[4]
In
the
present
instance,
no
such
application
was
made
to
court.
[15]
Any contract which undermines the institution of marriage is void. A
contract that is described
as attempting to distort the whole concept
of marriage, includes those that threaten an existing marriage. In
this category also
fall some contracts between husband and wife
relating to future separation.
[16]
An
agreement setting terms to come into operation in the event of a
separation or divorce is not against public policy unless it
is
likely to encourage or facilitates separation or divorce. An
agreement relating to a future divorce is not contrary to public
policy if the marriage has irretrievable
broken
down.
[5]
[17]
The effect of the plaintiff’s particulars of claim, is aimed to
obtain a division of the matrimonial
home situated at [...]. In her
particulars of claim, the plaintiff does not allege that she is the
co-owner of the immovable property
referred to paragraph 9.5 and
9.5.1 of the particulars of claim.
[18]
In seeking this relief, the plaintiff is placing reliance on the
agreement contained in annexure “B”
to claim a half share
thereof. This annexure “B” however does not contain any
reference to the said immovable property
in question, nor does it
contain a description thereof. As such counsel for the excipient
contended, that this agreement cannot
be used to circumvent the
provisions of the
Alienation of Land Act, Act
68 of 1981 and it also
falls foul of the provisions of this Act.
[19]
Furthermore, the purported contract referred to in annexure “B”
was concluded on 10 March 2016,
which purports to be a confirmation
contract of a previous contract. On a simple reading thereof, if this
contract were to be valid,
then a divorce would have financial
benefit for the plaintiff and for that reason the purported contract
would encourage a divorce
and is injurious to the state of marriage
and thus
contra bonos mores.
[20]
It is for the above reasons that counsel had argued the particulars
of claim, specifically prayer 2 thereof,
is bad in law and therefore
excipiable.
RESPONDENT’S
SUBMISSIONS
[21]
On behalf of the respondent it was submitted that when a court is
called upon to consider the
validity and enforceability of annexure
“B” concluded between parties, the first point of
consideration is whether
the requirements for the conclusion of a
contract has been met.
[22]
Secondly, that since this court must accept that the excipient in the
present, matter does not
deny having appended his signature to
annexure “B”, the basic requirements for a valid
agreement have been met.
[23]
Counsel
went on to submit, that the conclusion of annexure “B” is
an agreement
inter
partes,
without
having the intention of amending or cancelling
their
duly
registered
ante-nuptial
agreement.
In
this
regard,
counsel had placed reliance on the Constitutional Court decision of
Barkhuizen
[6]
read together
with the earlier decision of Honey
[7]
where the following
was
held:
“
it
must be kept in mind that the term ‘ante-nuptial contract’
is not synonymous with the term ‘duly registered
ante-nuptial
contract.’ An ante nuptial contract is valid between the
parties and inter partes regulates their matrimonial
property system
even if it is not registered......A duly registered ante-nuptial
contract regulates the parties’ matrimonial
property system as
regards to third parties.” As such counsel had argued that
there was no need to have complied with the
provisions of
section
21(1)
of the
Matrimonial Property Act as
this agreement remained
inter
partes
and
of no force and effect against third parties and to prevent parties
to contract would amount to an infringement of their constitutional
rights of freedom and dignity.
[24]
Furthermore, section 7(1) of the Divorce Act, Act 70 of 1979
specifically regulates that a Court
granting a decree of divorce may
in accordance with a written agreement between parties make an order
with regard to the division
of the assets of the parties, or the
payment of maintenance by one party to the other and as such parties
can agree to any terms
regarding the patrimonial consequences of
their estates in the event of divorce.
[25]
In as far as the exception raised by the excipient that annexure “B”
does not comply
with the
Alienation of Land Act, counsel
had
submitted that this ground of the exception is unfounded and bad in
law. This is so, as the respondent does not seek to become
half-share
owner in the existing immovable property, nor does she require to be
registered as such.
[26]
Only in that event, would she be required to have complied with the
provisions of the
Alienation of Land Act; but
what she rather seeks
as part of her relief, is merely for the estate to be divided between
her and the excipient upon dissolution
of their marriage
relationship.
[27]
The third ground of exception raised by the excipient is that the
agreement is injurious to the institution
of marriage, would
encourage divorce and is contra bones mores.
[28]
In
this regard, counsel had argued that an agreement of this nature as
concluded by the parties, is not contrary to public policy,
if the
marriage
has
already
irretrievably
broken
down.
[8]
[29]
In order for this court to make an assessment as to the state of the
marriage at the time when annexure “B”
was concluded, the
parties would have to give
viva voce
evidence. On this basis
it was therefore, submitted that this ground of exception is
therefore unfounded.
ANALYSIS
[30]
In order to sustain a cause of action for the dissolution of a
marriage the following
facta
probanda
needed to be
pleaded:
(a)
The jurisdiction of the court;
(b)
An allegation that the parties are domiciled within the court's
jurisdiction;
(c)
That a valid marriage was concluded between the parties; when and
where such
marriage was concluded and the marital regime applicable
at the time of the marriage;
(d)
That the marriage still subsists;
(e)
The plaintiff must allege whether any children were born from the
marriage;
(f)
An
allegation that the marriage relationship between the parties
has
broken
down
irretrievably.
[9]
[31]
In
casu,
the
plaintiff makes the allegation that when they entered into their
union, that they got married out of community of property with
the
exclusion of the accrual system and in anticipation of such marriage,
they concluded and registered a written Ante-nuptial contract
on 14
December 2006. The said Ante-nuptial contract is annexed to the
particulars
of
claim
and
marked
as
annexure
“
A
”
.
[10]
[32]
Some
years later around 2016, they concluded a written agreement (annexure
“B”), which was proposed and drafted by the
excipient
wherein they agreed that in the event of divorce how the distribution
of their assets should take place, i.e. as if they
were married in
community
of
property.
[11]
[33]
The plaintiff, in her particulars of claim alleges that this
agreement so concluded merely regulated their
matrimonial property
system
inter partes
as at date of signature, but fails
to allege that his agreement would not affect any rights of any third
party. If this indeed
was alleged, it would have circumvented the
requirement for compliance with the provisions of
section 21(1)
of
the
Matrimonial Property Act.
[34
]
Section 21(1)
of the
Matrimonial Property Act reads
as follows:
Change
of Marital Property System
“
21(1)
A husband and wife, whether married before or after the commencement
of the Act, may jointly apply to a court for leave to
change the
marital 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 authorise 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.”
[35]
The section therefore requires, that where any change in marital
regime is intended that an application
should be made to court by
both spouses and that such change can only be effected with the leave
of the court.
[36]
If the parties intended that upon divorce for their marriage to
dissolve as a marriage in community
of property and thus contrary to
the marital regime applicable to their marriage, it follows that
compliance with the provisions
of
section 21(1)
of the
Matrimonial
Property Act, should
have been pleaded and the present instance, this
was not done.
[37]
In addition, it is worth mentioning that annexure “B”
concluded
inter partes,
also carry legal consequences. These
legal consequences not only attract to them as the contracting
parties, but also attract to
the outside world who still labours
under the impression that they have separate estates.
[38]
It is for the above reason that I conclude, that the failure to have
alleged compliance with the provisions
of
section 21(1)
of the
Matrimonial Property Act, is
part of the
facta probanda
to
sustain her cause of action, and consequently, the exception is
upheld.
[39]
The respondent further places reliance on the terms agreed upon
between the parties in annexure “B”,
for claiming a half
share of the immovable property, situated at number [...]. The said
annexure “B” makes no reference
to this immovable
property wherein, she claims a half share, or any other immovable
property. It is simply silent. This being so,
I therefore conclude
that there had also been non-compliance with the provisions of the
Alienation of Land Act and
consequently, the exception is further
upheld on this ground.
[40]
As to the third ground of exception raised, I agree that this ground
cannot be assess without
viva voce
evidence being tendered and
in the absence thereof, I conclude that this ground can succeed.
RESERVED
COSTS FOR 26 AUGUST 2019
[41]
In this regard on behalf of the respondent it was submitted, that the
respondent should be awarded
the costs for the proceedings which was
reserved on 26 August 2019
[42]
This is so, as the respondent in contemplation of the judgment to be
handed down by
the
Constitutional
Court
under
case
CCT
95/
19,
[12]
had informed the
excipient that the enrolment of his exception should be removed in
order to avoid unnecessary costs, but despite
of this request the
parties still had to appear in court on the day of hearing. On this
day, the matter was ultimately postponed
by agreement between the
parties
pending
the
outcome
of
the
Constitutional
Court
decision,
with the costs reserved. As such it was argued, that had the
excipient acceded to the request for a postponement that
the costs
incurred for the
26
August
2019,
could
have
been
curtailed.
[43]
In response to the above argument, counsel for the excipient had
argued, that the decision
to postpone the exception on the 26 August
2019, was by agreement between the parties as both parties, were
desirous to obtain
the outcome of the Constitutional Court decision.
As such, counsel had argued that there would be unfairness in
ordering the excipient
to pay the costs occasioned by the removal.
[44]
Having regard to the correspondence
[13]
exchanged
between the parties in contemplation for the hearing date for the 26
August 2019, it is apparent that costs could have
been curtailed as
what the respondent requested
via
such
correspondence
prior
to the hearing, is
ultimately
what
the
outcome
of
the
proceedings
were.
Consequently,
I
am of the opinion that the respondent should be awarded the costs for
this
day.
COSTS
OF THE EXCEPTION
[45]
As to the costs to be awarded in as far as this application is
concerned, the excipient is substantially
successful and as such, the
costs should follow the result.
ORDER
[46]
Consequently, the following order is made:
46.1
The exception is upheld with costs.
46.2
The plaintiff is granted leave to amend her particulars of claim,
within 15 court days
of date of this order.
46.3
The respondent is awarded the costs reserved on 26 August 2019.
C.J.
COLLIS
JUDGE
OF THE HIGH COURT
Appearances
For
the Excipient :
Adv . M.L. Haskins SC
Attorney
for the Excipient :
Steve Merchak Attorneys
For
the Respondent :
Adv. LC Haupt SC
Attorney
for the Sixth Respondent : Adams &
Adams
Date
of Hearing :
25 August 2020
Date
of Judgment :
12 February 2021
Judgment
transmitted electronically.
[1]
Superior Court Practice , Erasmus B1-151 , Commentary on
Rule 23
[2]
Erasmus, Superior Court Practice , B1-152, commentary
Rule 23
[3]
Edelstein v Edelstein NO & Others
1952 (3) SA 1
(A) at 10.
[4]
Clark (ED) Family Law Service B5
[5]
Stembridge v Stembridge
[1998] 2 All SA 5
(D) at 12d-15b
[6]
[2007] ZACC 5
;
2007 (5) SA 323
CC at
[57]
[7]
1992 (3) SA 609
(W) at 612B-D
[8]
See again Stembridge
v
Stembridge
mentioned
supra
.
[9]
Amler’s Precedents of Pleadings Eight Ed p 170
[10]
Particulars of Claim para 9.1 Index 0002-10
[11]
Particulars of Claim para 9.3.1 Index 0002-10
[12]
CCT 95/19 delivered 26 May 2020.
[13]
Respondent’s
Supplementary Affidavit Index 0003-9