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[2021] ZAGPPHC 781
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Motee N.O and Another v Mkhwanazi and Another (94084/2020) [2021] ZAGPPHC 781 (13 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS
JUDGES: NO
(3)
REVISED
13
July 2021
Case
number:
94084/2020
PETER
HERBERT MOTTĖE
N.O.
First Applicant
LLOYD
ROBERT BALL
N.O.
Second
Applicant
And
BONGEKILE
CYNTHIA MKHWANAZI
First Respondent
THE
REGISTRAR OF DEEDS, PRETORIA
Second
Respondent
JUDGMENT
1.
This application, initially brought as an urgent application to be
heard on 14
January 2020, consisting of relief in Parts A and B, was
brought by the late Mr. Zolani Humphrey Mkhwanazi who deposed to the
founding
affidavit on 13 December 2019.
2.
Mr. Mkhwanazi (hereinafter referred to as the deceased) however died
on 4 January
2020 and the executors of his estate who substituted him
are now only pursuing the relief as set out in Part A2:
“
2.
An order declaring that the unsigned ante-nuptial contract
(hereinafter referred to
as a “ANC”) entered into between
the applicant (the deceased) and the first respondent in February
2016 are binding
and enforceable
inter
partes
.
BACKGROUND
3.
The deceased and the first respondent were married to each other, on
18 February
2016 and it is common cause that the parties were married
in community of property and that no ANC has been registered with the
deed’s office.
4.
The deceased, in his founding affidavit stated that it was, from the
outset the
parties’ intention to be married out of community of
property, and attached an unsigned and undated typed document,
presumably
a letter, addressed to “Dear MaGxabashe” in
support of his allegation.
5.
The deceased also stated that the parties, in January 2016, signed a
special
power of attorney as well as a draft ANC in terms of which
they intended for an attorney to appear before a Notary Public to
have
the ANC executed on their behalf.
6.
Mr. Grant Williams, a notary public who was, according to his
affidavit, instructed
to draft and register the ANC, stated that he
is in possession of the originally signed ANC, but only had a scanned
copy of the
signed power of attorney and the draft ANC when he duly
notarised
the
ANC and entered it into his protocol as number 321/2016.
7.
The copy obtained from Mr. Williams is an “Antenuptial Contract
with the
exclusion of the Accrual system in terms of the
Matrimonial
Property Act, 1984
”, with Protocol No. 32/2016, in terms
whereof Wendy Noila Kapp, duly
authorised
by Special Power of Attorney, signed
by Xolani Humprey Mkhwanazi and Bongekile Cynthia Makhathini on 17
January 2016, appeared before
him, being Grant Douglas Williams, on
17 February 2016, to declare that the marriage to be
solemnised
between the parties will be out of
community of property and that the accrual system is expressly
excluded. According to this duly
signed document and attested to by
witnesses, the Power of Attorney together with the original of this
document was filed in Mr.
Williams’ Protocol.
8.
Mr. Williams, according to his confirmatory affidavit was unable to
locate the
copy of the signed power of attorney but averred that he
would not have
notarised
the
ANC without having had sight of the signed power of attorney together
with the draft ANC at the time. He also confirmed
that he did
not lodge the notarized ANC to be registered in the deed’s
office because he was waiting for the original power
of attorney and
attached ANC to be forwarded to him, but these documents were never
received.
9.
The first respondent conceded in her answering affidavit that she and
the deceased,
“
had
spoken after the lobola was concluded of the possibility of signing
an Ante Nuptial Contract (ANC). This was a mere discussion
but
the deceased never went through with it. That was the first
and the last time that the deceased and I ever discussed
the
possibility of an ANC.”
but
denied that a draft ANC was prepared.
10.
She also admitted that they consulted a lawyer, Grant Williams, since
she was convinced
that her future had to be protected, and that she
requested Mr. Williams to draft a contract, but
“
thereafter
consultations with my husband who really saw no need in having
such a stringent contract in our marriage which
he was convinced
its eternal and for the best, we then didn’t proceed with the
ANC.”
11.
The first respondent denied that she was contacted by Mr. Williams to
prepare an ANC and
specifically denied that she and the deceased
concluded or signed any contract or that she signed any power of
attorney.
She also denied the correctness of the content of the
letter referred in paragraph 4 above.
12.
On consideration of the affidavits filed, it is evident that there is
a dispute regarding
the agreement between the parties to enter into
an ANC prior to their marriage in February 2016.
MOTION
PROCEDURES
13.
It is trite law that motion proceedings are decided on the papers
filed by the parties and
in case there is a factual dispute which can
only be resolved through oral evidence, it is appropriate that action
proceedings
should be used unless the factual
dispute is not real and genuine.
14.
In
Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
,
[1]
the
court held that where there is a dispute
of facts final relief should only be granted
in motion
proceedings if the facts as stated by the respondent
together with the facts in the applicant's affidavit, justify an
order.
15.
In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[2]
Corber JA concluded:
‘
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those
facts averred in the applicant's affidavits which
have been
admitted by the respondent, together with the facts alleged by the
respondent, justify such an order. The power of the
Court to give
such final relief on the papers before it is, however, not confined
to such a situation. In certain instances the
denial by
respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or bona fide dispute
of fact . . . If in such a
case the respondent has not availed himself of his right to apply for
the deponents concerned to be
called for cross-examination under
Rule 6(5)(g) of the Uniform Rules of Court . . . and the Court is
satisfied as to the inherent
credibility of the applicant's factual
averment, it may proceed on the basis of the correctness thereof and
include this fact
among those upon which it determines whether the
applicant is entitled to the final relief which he seeks . . .
Moreover, there
may be exceptions to this general rule, as, for
example, where the allegations or denials of the respondent are so
far- fetched
or clearly untenable that the Court is justified in
rejecting them merely on the papers . . .’
16.
In
National
Director of Public Prosecutions v Zuma
[3]
Harms DP specifically found that that the general rule may not apply
‘if the respondent’s version consists of bald
or
uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, farfetched or so clearly untenable that
the
court is justified in rejecting them merely on the papers’. He
also warned, that, the more serious the allegation or
its
consequences, the stronger must be the evidence before a court before
it will find the allegation established.
17.
In
Lohan
Civils (Pty) Ltd v Tokologo Local Municipality
[4]
Opperman J discussed dispute of facts as follows:
“
IV
DISPUTE OF FACT
[19] A
real dispute of fact can arise in one or other of the following ways:
1.
Where the court is satisfied that the party who purports to raise the
dispute
has in his affidavit, seriously and unambiguously, addressed
the facts said to be disputed;
2.
The respondent may deny
one or more of the material allegations made on the
applicant’s behalf and produce evidence to the contrary, or
apply for the leading of oral evidence of witnesses who are
not
presently available or who, though averse to making an affidavit,
would give evidence if subpoenaed;
3.
The respondent may admit
the applicant’s affidavit evidence but allege other
facts,
which the applicant disputes;
4.
The respondent, while
conceding that he has no knowledge of one or more material
facts
stated by the applicant, may deny them and put the applicant to the
proof, and himself giving or proposing to give evidence
to show that
the applicant and his deponents are biased and untruthful or
otherwise unreliable, or that certain facts upon which
the applicant
relies to prove the main facts, are untrue. The absence of positive
evidence directly contradicting an applicant’s
main
allegations, does not render a case such as this free of a real
dispute of fact. In other words, a respondent is entitled
to seek a
reference to oral evidence or to trial under circumstances where it
is unable to produce affidavits containing positive
allegations that
prima facie establishes a defence. This requires of the deponent to
set out the import of the evidence which
the respondent proposes to
elicit (by way of cross-examination of the applicants’
deponents or other persons he proposes
to subpoena) and explain why
the evidence is not available. Importantly, the deponent must satisfy
the court that there are reasonable
grounds for believing that the
defence would be established.
5.
If the respondent`s
version is farfetched and untenable there is not a dispute.
6.
A bare denial is not a
dispute.”
THE
FACTS AND DISPUTES
IN CASU
18.
On consideration of all the facts, the only undisputed fact is that
the deceased and the
first respondent consulted Mr. Williams, prior
to their marriage, to discuss their marriage regime.
19.
The consequences of their consultation and whether an agreement to be
married out of community
of property was reached, are in dispute.
As indicated above, the first respondent agreed that they consulted
Williams, but
was definite in her denial of the agreement and the
fact that she never signed a power of attorney and ANC.
20.
On behalf of the applicants it is argued that the first respondent in
paragraph 37 of her
answering affidavit confirmed that Williams was
consulted and that the contract was in fact drafted and signed, but
paragraph 37
cannot be regarded as confirmation.
“
I
deny these allegations. At the time of consulting the lawyer,
Grant Williams, I personally was adamant that I needed
to
protect my future as I was young and my husband’s erratic
behaviour
was
of great concern to me. I asked if Grant could draft a
contract and thereafter consultations with my husband who really
saw
no need in having such a stringent contract in our marriage which he
was convinced its eternal and for the best, we then didn’t’
proceed with the ANC.”
21.
The applicants’ strongest argument that there was an agreement
to enter into an ANC,
is based on the evidence of Mr. Williams, who
confirmed that he was instructed by both parties to prepare an ANC
and that he drafted
the ANC and a power of attorney to
authorise
one of
his
employees to execute the draft ANC before him. He further
confirmed that he received a scanned copy of the signed power
of
attorney and draft ANC and that on strength of these scanned signed
documents proceeded to
notarise
the ANC and entered
it into his protocol, as number 321/2016.
22.
Mr. Williams, unfortunately only has the originally signed ANC, which
was signed in his
presence by Kapp, his assigned employee according
to the power of attorney, in his protocol and not the scanned signed
power of
attorney and signed draft ANC. He stated that he did not
lodge the
notarised
ANC to be registered
in the deed’s office, because he was waiting for the original
power of attorney and attached ANC to be
sent to him, but he did not
receive these documents.
23.
I accept Mr. Williams’ statement that he would never have
notarized the ANC without
having had sight of the signed power of
attorney together with the attached draft ANC, but without the signed
documents, and in
view of the first respondent’s denial that
she signed these documents, I cannot find that it was the first
respondent’s
signature on these documents.
24.
The fact that Mr. Williams was on his own version only prepared to
not
arise
the ANC on strength
of the scanned signed documents, but not to register it in the deed’s
office, confirms the importance
of the originally signed documents
and at this stage I do not even have a scanned copy of the signed
documents to confirm the parties’
signatures.
25.
On behalf of the applicants it was furthermore argued that the fact
that there was a previous
application by the deceased and first
respondent to change their marriage regime, confirmed the fact that
they intended to be married
out of community of property.
However, Ms. Calaca, the attorney who held the instruction to move
the previous application,
did not confirm that she was instructed by
both the deceased and the first respondent. She only
confirmed that the
deceased instructed her to draft an application.
He apparently told her that it was with the agreement of the first
respondent,
but the first respondent never instructed her or agreed
to her personally to the bringing of the application.
26.
The first respondent’s denial of the existence of an agreement
to be married out of
community of property and her denial that she
signed the power of attorney and draft ANC, cannot, in view of her
version about
the consultation with Williams and subsequent
discussions with the deceased be regarded as only a bare denial.
27.
I am not persuaded that the first respondent’s version is
unattainable or false and
can be rejected on the papers. The
parties’ version about the agreement to enter into an ANC is
material and cannot
be resolved on the papers.
28.
I therefore grant the following order:
The
application is dismissed with costs.
ACTING
JUDGE JF BARNARDT
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
OF THE HIGH COURT, PRETORIA
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines.
The date for
hand-down is deemed to be 13 July 2021.
APPEARANCES
For
the applicants:
Adv. BD
Stevens
Instructed
by:
Kotze and Roux Attorneys Inc.
For
the respondent:
Adv K Mvubu
Instructed
by:
Ningiza Horner Attorneys
Date
of hearing: 9 March 2021
Date
of Judgment: 13 July 2021
[1]
1957(4)
SA 234 (C) at 235 E- G
[2]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635C
[3]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26
[4]
Saflii
(2676/2019)
ZAFSHC 20 2020 (14 February 2020)