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[2018] ZAGPPHC 493
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M.T v R.M.T (67085/2014) [2018] ZAGPPHC 493 (9 March 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE N0:67085/2014
9/3/2018
In the matter between:
M
T
PLAINTIFF
and
R
M
T
DEFENDANT
JUDGMENT
RANCHOD J:
[1]
This matter was on the trial roll before Rabie J on 13 June 2016 for
determination
of the parties· divorce action. The learned
Judge ordered in terms of Rule 33(4) of the Uniform Rules of Court
that the
issue of which marital regime was applicable to the marriage
between the parties be determined separately from the other issues.
The trial was postponed
sine die
with costs to be costs in the
cause.
[2]
Accordingly, the issue for determination
before me is whether or not the parties had concluded a verbal
ante-nuptial contract prior
to the solemnisation of their civil
marriage on 18 September 2012 before a marriage officer at an office
of the Department of Home
Affairs.
[3]
It is the plaintiff's case that the
parties had in fact concluded a verbal ante-nuptial contract prior to
the solemnisation of their
marriage and that it was a specific term
of the said agreement that the accrual system was not applicable to
their marriage.
[4]
The defendant on the other hand denies
the existence of such a verbal ante-nuptial contract. She avers that
the parties never even
discussed the issue of which matrimonial
property regime would apply to their marriage. It is further
contended by the defendant
that the issue of their matrimonial
property regime was also not raised by the marriage officer during
the solemnisation of their
marriage on 18 September 4012.
[5]
It is clear that there is a factual
dispute as to whether the parties entered into a verbal ante-nuptial
contract with the exclusion
of the accrual system as alleged by the
plaintiff.
[6]
At the commencement of the trial
plaintiff's counsel stated that the plaintiff's case was based on
claim 1 of the particulars of
claim. The other claims are claims in
the alternative to claim 1. It was conceded that the onus was on the
plaintiff to prove his
case. However, it is not in dispute that the
parties concluded a civil marriage on 18 September 2012. It was also
common cause
that the main, reason for the plaintiff wanting to
conclude a civil marriage was that he intended to establish a Church
and to
that end he had to appear to be a pastor in good standing by
registering his marriage to the defendant to whom he had been married
by customary law in 1996. The parties had first met in 1991. I will
revert to this aspect presently.
[7]
At the commencement of the trial
plaintiff's counsel also sought to hand up a supplementary trial
bundle which contained documents
that were not previously discovered
by the plaintiff. Defendant's counsel objected and plaintiff's
counsel then said she was prepared
to proceed with the trial without
the supplementary bundle. I ruled that no documents in the
supplementary trial bundle discovered
only during course of the trial
week may be used as evidence in the trial.
[8]
The plaintiff is a practising specialist
medical doctor and also a professor at a University. The defendant is
a housewife. She
matriculated in Zimbabwe whereafter she studied for
a course in office administration and typing at a technical college.
She also
did a course in beauty therapy.
[9]
Their marriage is the plaintiff's fourth and the defendant's first.
The parties have
two children, namely, a son over 20 years of age and
a twelve year old daughter. The plaintiff also has a child from his
second
wife. The child is presently eleven years old.
[10]
A brief chronology of the background facts which are common cause
between the parties are as
they emerged from the evidence is:
10.1
The
parties met each other in 1991;
10.2
The
plaintiff married his first wife T N in-community of-property in
1992;
10.3
In
1996, whilst still going through divorce proceedings with N , the
plaintiff paid lobola for the defendant and they had a 'white
wedding'. (The plaintiff referred to it as a 'blessing' rather than
as a wedding or marriage when he testified). The customary
marriage
was not registered;
10.4
The
plaintiff and N were eventually divorced in 1997;
10.5
The
plaintiff and defendant's son was born in 1997;
10.6
In
1999 the plaintiff married Rosemary Nkosi by ante-nuptial contract
and the accrual system was applicable to the marriage;
10.7
Plaintiff's
marriage to Nkosi ended in divorce in 2007;
10.8
In
the s me year plaintiff entered into a written ante-nuptial contract
with the defendant with exclusion of the accrual system.
(More on
this aspect later);
10.9
In
2009 the plaintiff instituted proceedings in the North Eastern
Divorce Court in Lebowakgomo to have the customary marriage entered
into with the defendant in 1996 declared void. The proceedings were,
however. not finalised because according to the plaintiff
the parties
reconciled;
10.10
In
2011 the plaintiff married B M out of community of property but with
the exclusion of the accrual system. They were divorced
in 2012.
10.11
On 18 September 2012 the plaintiff and
defendant registered their marriage at the office of the Department
of Home Affairs in Akasia,
Pretoria.
10.12
It
is apparent that the customary marriage between the plaintiff and
defendant remained in force until the registration of their
marriage
in 2012.
[11]
As I said, the issue for determination is whether an oral
ante-nuptial contract was entered
into between the parties.
[12]
The plaintiff testified that because of
the experience he had regarding the matrimonial property regime with
his first wife when
there was a division of the joint estate because
it was a marriage in community of property and the second one where
the accrual
system applied and he therefore had to share the accrual
with his then wife he made sure he married the third and fourth time
by
ante-nuptial contract with the exclusion of the accrual system.
This, it was argued, made the plaintiffs version more probable that
he had entered into an oral ante-nuptial contract with the defendant.
[13]
A written ante-nuptial contract
purportedly entered into by the plaintiff and the defendant was
tendered in evidence by the plaintiff.
The ante-nuptial contract was
signed on 31 October 2007 before Notary Public Johannes Frederick
Moolman by Mr Malesela Emmanuel
Moloto on behalf of the plaintiff and
defendant by virtue of a power of attorney dated 26 October 2007. The
Notary's protocol number
602/07 appears thereon. Plaintiff testified
that the parties did not thereafter solemnise their marriage.
[14]
However, what is not clear is why, if
the plaintiff and the defendant had entered into a written
ante-nupital contract he would
rely on an oral agreement in the
pleadings. The plaintiff repeatedly stated when testifying that the
ante-nuptial contract had
been 'registered', presumably in the Deeds
Office. During the course of the trial, plaintiffs counsel sought to
cross examine
the defendant on the written ante-nuptial contract
signed by the parties. Defendant's counsel objected on the basis that
plaintiffs
case was based on an oral contract. Plaintiff's counsel
submitted that plaintiff indeed relied on the oral agreement. The
written
ante-nuptial contract was introduced in evidence merely to
show the intention of the parties as regards choice of the marital
regime.
Yet during his evidence, the plaintiff repeatedly referred to
the written agreement of 2007. When asked in cross-examination which
contract he was relying on - the alleged verbal one or the written
one he gave the rather convoluted answer that the written one
reflected his previous intention but when he was getting married in
2012 (to the defendant) it was the oral one. He said the question
was
not fair to him as he was a lay person. He then repeated that the
written contract was registered in 2007. This begs the question:
if
it was registered then why rely on an oral contract? The plaintiff
was unable to provide a satisfactory answer to this question.
Unless,
of course, the plaintiff was aware that he would have difficulty
relying on the written contract in which case the defendant’s
version that she was not aware she was signing an ante-nuptial
contract but rather a marriage certificate carries weight.
[15]
The defendant testified that at some
stage in 2007 she and the plaintiff were on their way to a church
seminar to be presented by
a well-known preacher by the name of Miles
Munroe when the plaintiff requested that they pass by his attorney's
office. She said
on arrival there she was merely told to sign certain
documents which were never read or explained to her or their
significance.
She was only told that it was in her best interests
since her husband was a businessman. She thought she was signing a
marriage
certificate. The defendant also testified, that the Mr
Moloto in whose favour the power of attorney was allegedly signed was
not
present when she signed the papers in the plaintiff's attorney's
office. Whilst the power of attorney and the ante-nuptial contract
signed by Moloto before the notary are part of the papers, the draft
ante-nuptial contract, which it is alleged in the power of
attorney
was initialled by the parties for identification purposes, is not.
[16]
Under cross-examination the defendant
said she asked plaintiffs attorney what the documents were about that
she was being asked
to sign. The attorney told her she was signing a
marriage certificate and she would not be liable for plaintiffs
debts. She still
believed her marriage was one in community of
property.
[17]
Curiously, the plaintiff would not admit
that his marriage to the defendant prior to 18 September 2012 was a
customary marriage.
He repeatedly referred to it as a 'blessing' but
under cross-examination conceded that he was married to the
defendant. It is not
in dispute that the defendant had been
co-habiting with the plaintiff during the time he was going through
all three of his previous
divorces.
[18]
The plaintiff also relied on the
Marriage Register which was completed on 18 September 2012 at the
Department of Home Affairs. A
copy was introduced in evidence. Under
the heading 'Particulars of Marriage' the date and place of marriage
is stated as 18 September
2012 and Akasia respectively. Directly next
to the date of marriage is written in large capital letters 'A.N.C'.
The plaintiff
said this was written by the marriage officer on being
told that the marriage was to be one with an ante-nuptial contract.
The
marriage officer was Mr Peter Eric Mogashoa. He did not testify
so plaintiff's assertion in this regard is not confirmed by Mogashoa.
The plaintiff had apparently subpoenaed Mogashoa to testify in these
proceedings and he had attended court on previous occasion
when the
matter was postponed. It was contended on behalf of the plaintiff
that the reason why Mogoshoa was not available to testify
was that he
had since resigned from the Department of Home Affairs and plaintiffs
attorneys were unable to have a subpoena served
on him to appear
before this court. The plaintiffs attorney was not called to testify
in this regard. In any event, there is no
provision in the register
for indicating whether the marriage is in or out of community of
property. The letters 'A.N.C.' were
simply added in randomly.
[19]
The plaintiff testified that he told the
marriage officer that the parties had an ante-nuptial contract, the
defendant confirmed
it and the marriage officer noted it. He said he
did not produce it because it was registered and it could therefore
be traced.
I think I can take judicial notice of the fact that where
a written ante-nuptial contract is said to exist a marriage officer
will
insist on a letter from the attorney or notary confirming that
fact and it would be noted accordingly. In any event, the plaintiff
relies on a verbal agreement which I deal with below.
[20]
The defendant testified that when she
signed the marriage register the letters 'A.N.C' were not written in
the register and she
did not know who wrote them. She also did not
hear the plaintiff telling the marriage officer that their marriage
was by ante-nuptial
contract. She testified that a certain lady at
the Department of Home Affairs counselled the parties before they
signed the marriage
register. The defendant says she signed before
this lady to be married in community of property. When asked in
cross-examination
whether this lady said anything about their
marriage system she said she does not remember her talking about it.
The lady referred
to was not called to testify.
[21]
The defendant testified that she has
been married to the plaintiff for twenty-one years and she has always
believed it to be a marriage
in community of property. In my view, no
inference can be drawn that the letters 'A.N.C.' were meant to
indicate that the parties
were married by a verbal ante nuptial
contract or that they were written by the marriage officer. As I said
Mogoshoa did not
testify to confirm that he wrote the letters and why
he did so.
[22]
The plaintiff's case is that because of
his experience with regard to his previous marriage she would never
have consented to register
their marriage as one in community of
property. It was always his intention to marry out of community of
property and this intention
was communicated to the defendant.
However, at no stage did he testify that the defendant agreed to his
intention to be so married.
[23]
The plaintiff's reliance on an alleged
oral agreement simply does not make sense. As I said, he does not
rely on the written ante-nuptial
contract which, he insists, was
registered. No evidence that it was registered in the Deeds Office
was tendered. And if it was
not so registered it would still be valid
inter-partes as would a verbal ante-nuptial contract. So the question
arises why enter
into another (verbal) contract?
[24]
It is of significance in this regard
that the plaintiff testified that he only became aware of the fact
that the ante-nuptial contract
entered into between the parties in
2007 was not binding on their marriage when informed of this by his
attorney when instituting
the divorce proceedings. This means that
until then he believed that the written contract was valid but when
informed that it was
not, he changed his stance nd alleged that there
was a later verbal ante-nuptial agreement. This, in my view, is
opportunistic.
[25]
The plaintiff also testified as further
evidence that the marriage was one out of community of property the
fact that after the
registration of the marriage in 2012 he acquired
an immovable property for R4 000 000.00 in his own name and ABSA bank
registered
a mortgage bond over it without requiring the defendant's
consent. This would not have been possible if they were married in
community
of property. It seems to me that the only inference that
can be drawn is that the bank must have relied on the written
ante-nuptial
contract of 2007. I think it highly improbable that a
financial institution would rely on a verbal ante-nuptial contract.
[26]
It is clear, in my view, and
notwithstanding plaintiff's assertion that the payment of lobola
resulted in a 'blessing' whatever
it means, that it in fact resulted
in a customary marriage.
[27]
Section 4(9) of the Recognition of
Customary Marriages Act 120 of 1998 (the Act) provides that failure
to register a customary marriage
does not affect the validity of that
marriage. It seems to me therefore that a valid customary marriage
subsisted between the parties
from April, 1996 until 18 September
2012.
[28]
Subsections (1) and (2) of section 1O of
the Act provide -
'(1) A man and a wornan between
whom a customary marriage subsists are competent to contract a
marriage with each other under the
Marriage Act, 1961 (Act No.25 of
1961), if neither of them is a spouse in a subsisting customary
marriage with any other person.
(2) When a marriage is concluded
as contemplated in subsection (1) the marriage is in community of
property and of profit and loss
unless such consequences are
specifically excluded in an antenuptial contract which regulates the
matrimonial property system of
their marriage.'
[29]
It would seem therefore that up until 18
September 2012 the parties' marriage was governed by customary law.
When the marriage was
registered on 18 September 2012 and no
acceptable or convincing evidence is produced that the marriage was
to be governed by the
terms of a verbal ante-nuptial contract then
the marriage is one in community of property.
[30]
The plaintiff bears the onus to prove
his case on a balance of probabilities. He has failed to do so.
[31]
In the circumstances I make the
following order:
31.1
It
is hereby declared that the marriage between the plaintiff and the
defendant which was registered on 18 September 2012 is one
in
community of property.
31.2
The
costs are to be paid by the plaintiff.
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Plaintiff
: Att. M de Klerk
Instructed
by
: DDKK Attorneys
Counsel
on behalf of Defendant
: Att. V Mabe
Instructed
by
: T.C Rampatla Inc.
Date
heard
: 31 October 2018
Date
delivered
: 9 March 2018