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[2017] ZASCA 64
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Holomisa v Holomisa (564/2016) [2017] ZASCA 64 (29 May 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 564/2016(ECM)
In the matter between:
SANGO
PATEKILE
HOLOMISA
APPELLANT
and
BUKELWA NOLIZWE
HOLOMISA RESPONDENT
Neutral
citation:
Patekile
Holomisa v Nolizwe Holomisa
(564/2016)
[2017] ZASCA 64
(29 May 2017)
Coram:
Cachalia, Tshiqi,
Saldulker and Dambuza JJA and Mbatha AJA
Heard:
16
May 2017
Delivered:
29
May 2017
Summary:
Civil marriage solemnized in December
1995 in the erstwhile Transkei: the Marriage Extension Act 50 of 1997
did not alter the matrimonial
property regime of parties who married
without an ante-nuptial contract after 27 April 1994: marriage out of
community of property.
ORDER
On
appeal from:
Eastern
Cape Division, Mthatha High Court, (Smith J and Renqe AJ sitting as
court of appeal):
1
The appeal is upheld.
2
The order of the High
Court dismissing the appeal is set aside and in its stead the
following order is substituted:
a)
The appeal is upheld
and the order of the Regional Court is substituted to the limited
extent that paragraph 4 is deleted;
b)
The defendant’s
counterclaim is dismissed.
JUDGMENT
Tshiqi
JA (Cachalia, Saldulker and Dambuza JJA and Mbatha AJA concurring):
[1]
The issue in this
appeal is whether a civil marriage between the appellant and the
respondent, solemnized on 16 December 1995, in
Mqanduli, an area
located in the erstwhile Transkei, Eastern Cape, was in or out of
community of property. The issue arose in a
divorce action initiated
by the appellant (as plaintiff) in the Regional Division of the
Eastern Cape, Mthatha, in which he alleged
that the marriage
relationship was out of community of property. The respondent (as
defendant) in her plea alleged that the marriage
was in community of
property whereas in his plea to the respondent’s counterclaim
he stated that they were married in terms
of s 39(1) of the Transkei
Marriage Act 21 of 1978 (the Transkei Act) – and that the
marriage was consequently out of community
of property. The parties
were in agreement that the marriage relationship had broken down
irretrievably with no prospects of the
restoration of a normal
marriage relationship between them. In the regional court the parties
settled all issues relating to parental
responsibilities towards
their minor children, but could not reach agreement on their
matrimonial property regime.
[2]
On the day of the
hearing the respondent did not appear in court and was not
represented. Before hearing evidence, the regional
magistrate invited
the appellant’s legal representative to address the court on
the legal consequences of the Marriage Extension
Act 50 of 1997 (the
Extension Act) on the matrimonial property regime of the parties.
After hearing argument on this issue, it
found that the retrospective
operation of the Extension Act meant that all marriages concluded
without an ante-nuptial contract
after 27 April 1994, in the former
TBVC areas were deemed to be South African marriages. It further held
that the Transkei Act
was ‘either amended or repealed
impliedly’ by the Extension Act and that consequently the
parties were married in community
of property and profit and loss.
The court consequently made the following order:
‘
1)...
2) Decree of
divorce is hereby granted;
3) The two minor children shall
primarily reside with the plaintiff, defendant shall have reasonable
contact;
4) By virtue of the ruling by the
court that the marriage is in community of property, division of the
joint estate is ordered;
5) Each party to
pay its own costs.
[1]
’
[3]
The appellant appealed
to the High Court, Eastern Cape, Mthatha, contending that the
regional court erred in concluding that the
Extension Act had the
effect that all marriages concluded without an ante-nuptial contract
in the erstwhile Transkei, after 27
April 1994 were in community of
property. The high court found in favour of the appellant on this
issue and said that ‘[t]he
notion that the legislature may by
statute, and with retrospective effect, alter the matrimonial
property regime of married couples,
is fundamentally repugnant to the
tenets of our matrimonial jurisprudence and Chapter 2 of the
Constitution’. It found it
difficult ‘to conceive of any
justification for such a draconian provision in a free and open
democratic society’.
It thus concluded that the retrospective
operation of the Extension Act did not have the effect of altering
the matrimonial property
regimes of parties whose marriages were
solemnized after 27 April 1994.
[4]
Having determined that
issue, which was the only matter it had to resolve in the appeal, the
high court mero motu went further and
said that ‘[t]he
respondent’s contention that the appellant failed to adduce
sufficient evidence to establish that
the marriage was solemnized in
terms of the Transkei Act, however, ha[d] greater merit and
compel[led] thorough consideration’.
The court then referred to
the following evidence which it said was the appellant’s
testimony regarding the issue of domicile:
‘
Mr Mgxaji:
Where do you reside?
Witness: I reside in Xongxo [Ngqungqu]
administrative area in Mqanduli.
Mr Mgxaji: Where are you employed?
Witness: I am employed as a member of
Parliament in Cape Town.
Mr Mgxaji: And it is correct that in
between your being in Cape Town and [Ngqungqu] you stay in Cape Town?
Witness: Yes, when Parliament is in
session I stay in Cape Town, when it is not, I stay in Mqanduli
Mr Mgxaji: Is it correct that in this
divorce action you are suing the defendant who is Bukelwa Nolizwe
Holomisa?
Witness: That is correct
Mr Mgxaji: Is it correct that you and
the defendant married each other on 16 December 1994 out of community
of property [and] profit
and loss, [and] such marriage [still]
subsists?
Witness: That is correct.’
The
Court concluded that the above evidence ‘fell far short of
establishing that either he or the respondent was domiciled
in the
territory of the former Republic of Transkei’, and that
consequently the appellant could not claim that s 39(1) of
the
Transkei Act was applicable. On this basis it dismissed the appeal.
This appeal is with the leave of this court.
[5]
The appellant contends,
correctly, in my view, that the high court erred in considering the
domicile of the parties as this issue
was not raised in the appeal
and was common cause between the parties. The respondent, in her
counterclaim admitted that ‘the
plaintiff is domiciled within
the area of jurisdiction of this court [regional court]’. Once
the high court found that the
Extension Act did not alter the
matrimonial regime of parties who married in terms of the Transkei
Act after 27 April 1994, it
was not necessary for it to deal with any
other issue. The evidence by the appellant – on which the high
court based its
conclusion – that domicile was not established,
was not led to prove the domicile of either party, but was led to
establish
the regional court’s jurisdiction in the divorce
proceedings. Counsel for the respondent properly accepted this in
this court.
[6]
However, she contended
that the issue pertaining to the matrimonial property regime of the
parties had not been properly ventilated
in the regional court and
urged this court to refer the matter back to that court so that more
evidence could be led on this aspect.
In the alternative, Counsel
submitted that
s 7(3)
of the
Divorce Act 70 of 1979
was
unconstitutional in that it did not allow the respondent and other
vulnerable women married in terms of the Transkei Act, without
an
ante-nuptial contract, to seek a redistribution of the husband’s
assets, as was afforded to women married in terms of
s 22(6) of the
Black Administration Act
38
of 1927
.
[7]
The first contention
can be disposed of easily on the basis that no purpose will be
achieved by referring the matter to trial: First,
the marriage
certificate of the parties – which was not placed before the
regional court, and which Counsel agreed would
be placed before the
regional court if the matter was referred to it – showed that
the marriage was out of community of property.
Second, it is common
cause that the marriage was solemnised in Mqanduli, which is within
the territory of the erstwhile Transkei,
and the Transkei Act was
applicable at the time of the conclusion of the marriage. The
respondent in her counterclaim agreed that
the appellant was
domiciled in that area. A referral of the matter to trial would thus
not rescue her case.
[8]
The
constitutional argument must also fail: It was raised for the first
time in this appeal and it was not traversed at all in the
pleadings.
A court will not allow a new point to be raised for the first time on
appeal unless it was covered by the pleadings.
[2]
Secondly, s 39(2)
(a)
and
(b)
of the Transkei Act provided that parties who did not wish to marry
out of community of property could make a declaration to that
effect,
jointly before a magistrate or a marriage officer at any time before
the solemnisation of the marriage or could conclude
an ante-nuptial
contract. The respondent did not make the election and there is no
evidence to suggest that she wished to do so
but was unable to. The
court cannot make a new contract for the parties
[3]
and is thus obliged to enforce the terms of their marriage contract.
For those reasons the appeal must succeed. The appellant agreed
to
forego the costs of the appeal and there will thus be no costs order
against the respondent.
[9]
I make the following
order:
1
The appeal is upheld.
2
The order of the High
Court dismissing the appeal is set aside and in its stead the
following order is substituted:
a)
The appeal is upheld
and the order of the Regional Court is substituted to the limited
extent that paragraph 4 is deleted;
b)
The defendant’s
counterclaim is dismissed.
___________________
Z L L Tshiqi
Judge
of Appeal
APPEARANCES
For
the Appellant:
S Mgxaji
Instructed
by:
Mgxaji Incorporated, Mthatha
Matsepe
Incorporated, Bloemfontein
For
the Respondent:
E Crouse
Mbuyisa
Neale Attorneys
Legal
Aid South Africa, Bloemfontein
[1]
The
order does not deal with the maintenance of the minor children but
in response to a question from the bench in this court,
the
appellant’s representative stated that the appellant is
responsible for the maintenance of the children.
[2]
Road
Accident Fund v Mothupi
[2000] ZASCA 27
;
2000 (4) SA 38
(SCA);
[2000] 3 ALL SA 181
(A) para
30;
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) para 39.
[3]
Bath
v Bath
(952/12)
[2014] ZASCA 14
(24 March 2014) para 20.