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
>>
2019
>>
[2019] ZAGPPHC 259
|
|
Williams v Nolan NO and Others (60400/2017) [2019] ZAGPPHC 259 (20 June 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 60400/2017
20/6/2019
In
the matter between:
RALPH
HILTON WILLIAMS
APPLICANT
And
ANNE
MARIE NOLAN
N.O.
FIRST RESPONDENT
MASTER
OF THE HIGH
COURT
SECOND RESPONDENT
PRETORIA
THE
REGISTRAR OF
DEEDS
THIRD RESPONDENT
PRETORIA
ROLAND
CHRISTOPHER MELLOW
INTERESTED PARTY
JUDGMENT
RAMAPUPUTLA
AJ:
INTRODUCTION
[1]
This is an application for an order in
terms of section 87(1), alternatively, section 88 of the Deeds
Registries Act 47 of 1937
(the Act).
[1]
The applicant, Ralph Hilton Williams, is the son of Mina Williams. He
approaches this court for an order which will have as its
end, the
registration in the Deeds Registry of an ante-nuptial agreement
regulating the matrimonial regime between Mina Williams
and Roland
Christopher Mellow (the interested party).
FACTUAL
BACKGROUND
[2]
On 6 February 2014 Mina Williams and
Roland Christopher Mellow (the spouses), signed an ante nuptial
contract with the intention
to regulate their matrimonial regime
(before Attorney Jacobus). On 31 March 2014 the spouses were married
without an ante nuptial
contract. On 16 November 2014, Mina Williams
(the deceased) passed away. The estate was reported to the Master of
High Court, Pretoria
(the second respondent), as though the spouses
were married with an antenuptial contract. A liquidation and
distribution account,
dated 13 March 2017, was lodged with the second
respondent who refused to confirm it because it reflects that the
spouses were
married out of community of property whereas the
marriage certificate reflects in community of property. As a result,
the applicant
has approached this court for relief.
[3]
According to Mr Jacobus, the spouses
signed a power of attorney in terms of which they Instructed him to
appear before a notary
public, Mr Adriaan Booysens, and have their
ante.nuptial contract attested and registered with the Deeds
Registry.
[4]
However, Mr Jacobus did not appear
before the notary public because he did not receive payment of the
registration fee in the amount
of R1 500-(0ne Thousand Five Hundred
Rands) as per fee agreement signed between the deceased and Jacobus
Attorneys. Consequently,
the ante-nuptial contract was never attested
to by a notary public and was not lodged with the Deeds Registry for
registration.
DISPUTE BETWEEN THE APPLICANT AND
THE INTERESTED PARTY
[5]
The applicant contends that the
ante-nuptial contract was duly executed since it was signed by the
deceased and Roland Christopher
Mellow (the interested party) in the
presence of their attorney and was in the process to be attested to
by the notary public.
Now
the applicant is approaching this court for the following orders:
1.
That the time period provided in section
87(1) of the Deeds Registries Act 47 of 1937(as amended) be extended.
2.
That he be granted leave to register the
ante-nuptial contract which was executed on 0 February 2014 and which
is attached to the
founding statement as annexure "RWS".
3.
That this order will lapse if the
ante-nuptial contract is not registered by the registrar of Deeds
within 3 months from the date
of granting of this order.
4.
That this order will not prejudice the
rights of any creditor of the applicant as at date of the
registration of the ante-nuptial
contract. (This court notes that the
applicant is the son of the late spouse, therefore this judgement
does not concern the creditors
of the applicant but it concerns the
creditors of the spouses to the marriage).
5.
Further and alternative relief.
[6]
The interested party signified its intention to oppose the
application, filed his
answering affidavit but failed to file his
heads of argument and to appear in court on the 23
rd
of
April 2019 despite having received a notice
of
set down on the
20
th
of February 2019. His opposing affidavit states that
he opposes this application on two grounds.
1.
The
first is a point
in limine.
The
interested party stated in his affidavit that section 87 of the Act
is only applicable where an ante-nuptial contract is executed
by a
notary. For this reason, the interested party argues that the
applicant is not entitled to the relief sought and the application
should be dismissed.
2.
Secondly,
the interested party states that he and the deceased had no intention
of continuing with the registration of the ante-nuptial
contract and
thus they did not pay the registration fee (as per agreement with
their attorney).
LEGAL
ISSUES RAISED
[7]
The issues for determination by this
court are:
i.
Whether
the mere signing of an antenuptial contract regulating a marriage
without attestation by a notary public is regarded as
execution of
such.
ii.
Whether
the practice directive applies in circumstances where parties seek to
change the existing matrimonial regime by registration
of an
ante-nuptial contract in terms of
sections 87
or
88
of the
Deeds
Registries Act.
iii
.
Whether
the time period taken to apply for registration of the ante-nuptial
contract is unreasonable.
iv.
Whether
the beneficiary or heir has
locus
standi
to make an application for
postnuptial execution of ante-nuptial contract.
POINT
IN LIM/NE
[8]
The interested party raised a point
in
limine
that section 87 of the Act is
only applicable where an ante-nuptial contract is executed by a
notary. Indeed, the process of execution
of an ante-nuptial contract
is complete when a notary public attests to such contract.
Registration of the ante-nuptial contract
shall take place in a deeds
registry within three months after the date of execution. The court
may, on application, allow extended
period of registration.
[2]
Therefore the assertion by the applicant that the ante-nuptial
contract was duly executed because it was signed by the spouses
in
the presence of Mr Jacobus and was in the process to be attested to
by the notary public is incorrect and is therefore rejected.
[9]
The point
in
limine
raised by the interested
party that section 87 of the Act is only applicable where an
ante-nuptial contract is executed by a notary
is correct. Therefore,
the applicant is not entitled to the relief sought In terms of
section 87 of the Act.
ALTERNATIVE
PRAYER
[10]
The applicant seeks an alternative prayer in terms of which the court
must order post-nuptial
execution of the ante-nuptial contract.
REASONS
FOR JUDGMENT
[11]
The court is expressly bestowed with the
power to authorize postnuptial execution of a notarial contract
having effect of an ante-nuptial
contract under certain
circumstances. The court may subject to such conditions as it may
deem desirable, authorize postnuptial
execution of a notarial
contract having the effect of an ante-nuptial contract. The terms
thereof must have been agreed upon between
the intended spouses
before the marriage. In such a case the court may order the
registration of the notarial contract so executed
within a specified
period.
[3]
[12]
To be successful, the parties must meet
the following requirements:
(i)
they must have agreed upon the terms of
the contract before their marriage;
(ii)
they must show good reason as to why
they have failed to execute the contract in proper form before they
were married; and
(iii)
they must act with reasonable
promptitude after discovering the necessity for an application to
court.
[4]
[13]
There is evidence to support the
assertion that the deceased and the interested party intended their
marriage to be regulated in
terms of the ante-nuptial contract. The
supporting affidavit of Mr Jacobus confirms that the spouses signed
the ante-nuptial contract
and hence instructed him to appear before a
notary public Mr Booysen. This evidence is also supported by the
interested party himself.
There is further supporting documentary
evidence in the form of a signed power of attorney, fee agreement and
a signed ante-nuptial
contract.
[14]
The terms upon which the spouses agreed
are clearly stated in the ante-nuptial contract as follows:-
."(i) There
shall be no community of property between the husband and wife.
(ii)
The community of profit and loss between
the husband and the wife is hereby excluded.
(iii)
The accrual system referred to in
Chapter 1 of the
Matrimonial Property Act No.84 of 1984
but excluding
any subsequent amendment thereto will be specifically excluded."
[15]
Mr Jacobus explained that he failed to
register the ante-nuptial contract for the mere reason that he did
not receive payment of
the registration fee in the amount of R1
500-(0ne Thousand Five Hundred Rands) as per agreement with the
deceased and the interested
party. I accept this as good reason for
the failure to register this ante-nuptial contract but not as
justification for the failure
to take steps to ensure that it is so
registered. Furthermore, the interested party fails to disclose why
the spouses failed to
advise Mr Jacobus or the notary public of their
intention to discontinue with the registration of the ante-nuptial
contract. I
find it highly improbable that they could have taken such
a big decision without informing Mr Jacobus. It is only after such
disclosure
that this court will possibly be satisfied under the
general balance of probabilities that the alleged agreement with its
specified
terms, was no longer needed. I do not accept the interested
party's assertion that he and the deceased had no intention of
continuing
with the registration of the ante-nuptial contract and
thus they did not pay the registration fee as per agreement. The
interested
party did not sign the fee agreement in the first place
and I conclude that he never had the intention of paying anyway.
[16]
This application was launched with due
promptitude because the applicant did not waste time upon hearing
that the Master of the
High Court has refused to confirm the
liquidation and distribution account. There are cases where courts
held that the mere lapse
of time, being 27 years did not operate to
ban the court from being satisfied that the terms of the contract
sought to be registered
were agreed upon prior to the marriage.
[5]
THE REGISTRAR OF DEEDS REPORT
[17]
The registrar of deeds compiled a
report. The core of the report is the applicant's suitability to make
this application. The Registrar
of Deeds is of the opinion that the
applicant does not have
locus standi
and therefore is not entitled to
make an application in terms of sections 86, 87 and 88 of the Act.
According to the report this
application cannot succeed because the
applicant is not a party to the ante-nuptial contract. The report
states "sections
86, 87 and 88 read together state that any
application to register an ante-nuptial contract whether before
marriage or post-nuptial
execution according to section 88 after
marriage must-be done by both the parties to the contract and cannot
be applied to by a
person who is not party thereto".
[18]
The above analysis is completely correct
but only covers circumstances where both spouses are alive. Where one
or both of the spouses
are deceased, the beneficiary or the heir is
entitled to make such application.
[6]
The executor of an estate is also not prohibited from making such
application if there is evidence indicating that the parties
had the
intention to have their matrimonial regime being regulated by
ante-nuptial contract.
APPLICATION OF THE PRACTICE
DIRECTIVE
[19]
Counsel for the applicant submits that
paragraph 15.6 of this court's practice directive is not applicable.
This submission is completely
wrong because paragraph 15.6 of the
practice directive recognizes change to any matrimonial regime.
Paragraph 15.6 gives directions
that must be followed in all
instances having an end result changing of any matrimonial regime.
The purpose of complying with the
practice directive is to ensure
that creditors are treated fairly. This is a procedural step
prescribed as indispensable by the
practice directive for all
applications resulting in a change to any matrimonial regime,
including this application.
[20]
Without publication, the ante-nuptial
contract is only valid and effective as between the parties
themselves and their heirs. It
has no force or effect as against
anyone not a party to it.
[7]
Where parties have agreed informally that their marriage is to be out
of community of property, that is the basis of the marriage.
The
effect of registration is to give notice to the world of the
existence of the ante-nuptial contract , and to bind persons who
are
not parties thereto including creditors.
[8]
[21]
Therefore without publication as per the
practice directive, the parties are married in community of property
(as reflected on the
marriage certificate) as against third parties
and creditors. The only people who were bound by the antenuptial
contract were the
deceased (while she was still alive) and the
interested party. The practice directive applies to all applications
changing the
matrimonial regime including this application.
CONCLUSION
[22]. The terms
of the agreement perspicuously state that the spouses intended to
regulate their matrimonial regime.
However, such agreement was not
formalised in that it was never attested to by the notary public and
never registered with the
Registrar of Deeds. The spouses failed to
execute the ante-nuptial contract as envisaged by section 86 of the
Act. The execution
of the ante-nuptial contract would have been
complete if the notary public had attested thereto.
[23]
There is enough evidence to corroborate
the spouses intention to have their matrimonial regime being
regulated by an ante-nuptial
contract. Such evidence is found in the
affidavits submitted by the interested party, Attorney Jacobus,
signed power of attorney,
fee agreement and the signed ante-nuptial
contract albeit unattested. The existence of a signed ante-nuptial
contract justifies
an inference that the spouses intended to regulate
their matrimonial regime. There is also an explanation why the
spouses failed
to complete the registration of the ante-nuptial
contract. I am incredulous at the assertion that the spouses failure
to pay their
attorney's fees is an indication of their change of
intention to register the ante-nuptial contract. I find this highly
improbable.
[24]
This application was also brought to
court with reasonable promptitude. The applicant did not waste any
time after learning of the
second respondent's objection to the
estate being reported as if the spouses were married in community of
property.
[25]
It is evident that
section 88
of the
Deeds Registries Act is
applicable in the present case, in so far as
it allows this Court to authorize the execution of a postnuptial
contract having the
effect of an ante-nuptial contract. The court has
a discretion to grant or refuse application for postnuptial execution
and registration
of a notarial contract provided it is satisfied that
the necessary requirements have been met.
[26]
The applicant being a beneficiary, has
locus standi
to
make this application. Therefore the Registrar of Deeds report is
incorrect in this regard.
[27]
The practice directive does apply in the
present application because it only prescribes the procedure for
publication for fair treatment
of creditors.
[28]
I am now satisfied that all requirements
have been met. In order to avoid prejudicing the rights of existing
creditors, the order
is not retrospective.
Wherefore, I make the following
order:
ORDER
1.
Condonation for late filing of the
replying affidavit is granted.
2.
The postnuptial execution of a notarial
contract entered between the deceased and the interested party having
the effect of an ante-nuptial
contract is authorised.
3.
The
applicant is granted leave to complete the execution of the
antenuptial contract.
4.
The
applicant must publish this order in
a government gazette within (seven) days.
5.
The Registrar of Deeds must make an
endorsement that the parties are married in terms of an ante-nuptial
contract within a period
of 90 days.
6.
This order is not retrospective.
7.
No order as to costs.
N.E. RAMAPUPUTLA
Acting Judge, Gauteng Division
of
the High Court of South Africa,
Pretoria
Heard
on:
26 April 2019
Date of Judgment:
20 June 2019
APPEARANCES
On
behalf of Applicant:
Adv S F Fisher-Klein
Counsel:
On
behalf of Respondent:
NO APPEARANCE
Counsel:
[1]
Deeds Registries Act 47 of 1937 (herein referred to as the Act).
[2]
Section87 of the Act.
[3]
Section 88 of the Act .
[4]
Ex parte Kloosmon
1947 (1) All SA S1
(T) 55 .
[5]
Ex parte Roche
1947
3
All SA 536
(D) page 540.
[6]
See
In re Langston' s Estate
1932 NPD 191.
[7]
Ex Porte Kloosman
et Uxor 1947(1) SA 342 (T) 347.
[8]
Ex Porte Spinazze and Another NNO
1985(3) SA 650 (A)658;
Section 86
of the
Deeds Registries Act