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[2018] ZAGPJHC 626
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G v G (A5045/2017) [2018] ZAGPJHC 626 (13 November 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number:
A5045/2017
In
the matter between:
J
G
Appellant
And
J
G
Respondent
JUDGMENT
FISHER
J, (MAUMELA J & MAIER-FRAWLEY AJ CONCURRING):
INTRODUCTION
[1]
This
is an appeal against a judgment of Van Oosten J handed down in
relation to a separated issue in the divorce action which prevails
between the parties. The appeal is with the leave of the SCA.
[2]
The
issue determined by the learned Judge
a
quo
was a dispute in relation to the matrimonial property regime which
applies to the marriage of the parties.
FACTS
AND DISCUSSION
[3]
The
parties are married out of community of property. The antenuptial
contract executed by the parties and duly notarized and registered
reflects an agreement that the accrual system apply. This is by
virtue of the operation of section 5 of the Matrimonial Property
Act
which provides that the accrual system applies to every marriage out
of community of property, except in so far as that system
is
expressly excluded by the antenuptial contract. There being no
express exclusion of the accrual system in the antenuptial contract
in issue, the default position set out in section 5 operates.
[4]
The
appellant, Mr G claims that this failure to exclude the accrual
system came about by mistake. He says that the intention
of the
parties in signing the antenuptial contract was to exclude the
accrual system. He explains that the instructions given to
the
attorney who drafted the antenuptial contract were that the accrual
system not apply. Mrs G the respondent denies this. She
says that it
was at all times her understanding that the marriage would be out of
community of property with the inclusion of the
accrual system.
[5]
In
light of this departure in the parties' versions of the property
regime applicable to the marriage, Mr G pleaded a case of
rectification
in respect of the antenuptial contract. He asked
that the contract be amended to expressly exclude the accrual system.
It
is this case that was adjudicated as a separate issue by the
learned Judge
a
quo.
[6]
In
order for Mr G to succeed in his claim for rectification he had to
show that the common intention of the parties was that the
accrual
system not apply to their marriage. The learned Judge
a
quo
found that he had not established this.
[7]
Mr G
testified that, when the parties met, he was practising as a “junior
accountant”. Mrs G was a widow. She
had been married to
her late husband with the accrual system. She had inherited her
late husband’s estate which comprised
a number of video
shop businesses and other interests.
[8]
Mr G
testified that, at the stage that the parties decided to get married,
both of them had business interests in companies and
trusts. He
testified that it was because of these interests that the parties
made the decision to marry out of community of property
without the
application of the accrual system. Mrs G on the other hand stated
that she always understood that the marriage was
to be in terms of
the accrual system. She testified categorically that she would never
have agreed to marry on the basis of any
other property system.
[9]
The
learned Judge
a
quo
in his judgment sets forth a detailed evaluation of the evidence of
all the witnesses who testified, being the parties and Ms Geyser,
the
attorney who drew up the antenuptial contract and attended to its
notarization and registration.
[10]
After
such evaluation he reaches the conclusion that both the parties were
truthful witnesses. It is accepted by him that Mr G intended
to marry
without the accrual system. It is accepted also that Mr G instructed
Ms Geyser to draw the contract on the
basis of an exclusion of
the accrual system and that a mistake in her office led to the
document being framed as reflecting a marriage
out of community of
property without the accrual system being specifically included.
[11]
He
accepted also however that, on all the evidence, Mrs G did not
understand that she was entering into a marriage which was without
the accrual system. The testimony of Ms Geyser does not contradict
this as the thrust of her evidence was that she was instructed
by Mr
G and assumed that he was conveying the instructions of Mrs G.
[12]
Mr
Wannenberg, for Mr G, argued in the appeal that the probabilities
favoured the finding that the parties intended to enter into
a
marriage excluding the accrual system. He pointed to the fact that
the parties both had relatively substantial estates when they
decided
to marry and that this pointed to a likelihood that they would marry
in a way that kept their estates separate. Mrs G however
explained
that her estate was comprised to a large extent of the inheritance
from her late husband and that she understood that
this was excluded
from any accrual calculation in any event.
[13]
It
was not disputed that Mr G had taken control of the process of having
the antenuptial contract drawn up and that he was generally
dominant
in handling the parties’ finances. Mrs G also indicates that
she contributed substantial resources to the growth
of the estates in
that she invested amounts in improving the property at the Vaal on
which the parties lived and conducted the
business of letting out
cottages which were constructed thereon. She makes the point that she
would not have done so had she believed
she would not share in the
enterprise.
[14]
Mr
Wannenberg sought to make much of a statement of assets provided to
ABSA, which revealed that the parties were married without
the
accrual system. The explanation of Mrs G as to the fact that she
signed this document was that she accepted that it had
been
filled out correctly by Mr G . This was accepted by the learned Judge
a
quo
as
truthful.
[15]
What
concerned the learned Judge a quo was the lack of detail and clarity
in the evidence of Mr G in relation to the agreement which
he relied
on. In contrast Mrs G was categorical in her evidence to the effect
that she would never even have contemplated marrying
without the
accrual.
CONCLUSION
[16]
To my
mind, the learned judge’s evaluation of the evidence cannot be
faulted and neither can the conclusion reached by him
in relation
thereto.
[17]
Added
to this is the generally accepted principle that an appeal court will
be slow to disturb credibility findings made by a trial
court who has
had the benefit of seeing, hearing, and evaluating the witnesses (see
Estate
Parry v Murray
1961(3) SA 487 (T) at 488 C- F).
COSTS
[18]
As to
costs, I am reluctant to award costs of the appeal against Mr G. This
is because of the finding that the parties were both
honest in their
understanding of the contract and that, in essence, they were
operating at cross purposes. Given the nature of
the dispute –
being matrimonial - there is scope for departing from the usual
approach to costs. It seems to me that the
separated issue at hand is
central to the entire divorce and thus should be treated as part of
the entire cause. I note also
that the learned Judge
a
quo
took the same approach in relation to the costs. Accordingly, to my
mind, a fair order would be that the costs be in the cause.
ORDER
[19]
In
the circumstances, I make the following order:
a.
The
appeal is dismissed.
b.
The
costs of this appeal are in the cause of the action for divorce.
______________________________________
FISHER
J
HIGH
COURT JUDGE
GAUTENG
DIVISION, JOHANNESBURG
I
concur,
______________________________________
MAUMELA
J
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur,
______________________________________
MAIER-FRAWLEY
AJ
ACTING
JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing:
10
October 2018.
Judgment
Delivered:
October
2018.
APPEARANCES:
For
the Appellant
:
Adv WF Wannenburg
Instructed
by
:
Esthe Muller Inc.
For
the Respondent
:
Adv J Vermaak-Hay
Instructed
by
:
Leany Attorneys Inc.