L[....] H[....] v Z[....] H[....] (775/2020) [2021] ZASCA 130; 2022 (1) SA 384 (SCA) (30 September 2021)

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[2021] ZASCA 130
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L[....] H[....] v Z[....] H[....] (775/2020) [2021] ZASCA 130; 2022 (1) SA 384 (SCA) (30 September 2021)

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Certain
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 775/2020
In the matter
between:
L[….]
H[….]

APPELLANT
and
Z[….]
H[….]

RESPONDENT
Neutral
citation:
L[….]
H[….] v Z[….] H[….]
(775/2020)
[2021] ZASCA 130
(30 September 2021)
Coram:
MBHA, MOCUMIE,
SCHIPPERS, GORVEN and HUGHES JJA
Heard:
Appeal disposed of
without the hearing of oral argument in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
.
Delivered:
This judgment was handed down
electronically by circulation to the parties’ representatives via
email, publication on the Supreme
Court of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be 11h00 on
30 September 2021.
Summary:
Matrimonial
Property Act 88 of 1984
– interpretation of
s 18
– amount
received as non-patrimonial delictual damages prior to marriage in
community of property – part of the joint estate
– not excluded
by
s 18
(a)
of the Act –
appeal in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
.
ORDER
On
appeal from:
Eastern
Cape Division of the High Court, Mthatha (Majiki and Jaji JJ and
Mababane AJ sitting
as
court of appeal):
1
The appeal is upheld with no order as to costs.
2
The order of the Eastern Cape Division of the High Court, Mthatha is
set aside
and replaced with the following order:
‘
2.1
The appeal is upheld with no order as to costs.
2.2
The investment of the respondent is to be included in the joint
estate for the purposes of division
of the estate.’
JUDGMENT
Hughes JA (Mbha,
Schippers and Gorven JJA concurring):
[1]
This appeal concerns the interpretation and
application of
s 18
(a)
of the Matrimonial Property Act 88 of 1984 (the Act). The parties
were married in community of property on 22 December 2015. In 2011,
the respondent was involved in a motor vehicle accident and was
awarded non-patrimonial damages in the amount of R800 000. She
invested an amount of R550 000 with Standard Bank in an
interest-bearing account (the investment). The appellant contended
that
prior to the marriage the respondent had made him aware of the
investment.
[2]
In these proceedings the parties agreed that the
appeal may be disposed of without an oral hearing in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
. Further, the respondent also
sought condonation for the late filing of her heads of argument,
which was nine days overdue. There
is no opposition from the
appellant, the period is not excessive and a reasonable explanation
has been proffered. Accordingly, the
non-compliance is condoned.
[3]
In 2018 the appellant instituted divorce
proceedings in the Mthatha Regional Court seeking a decree of divorce
and division of the
joint estate. The respondent in her amended plea
contended that the investment did not form part of the joint estate
and should be
excluded as it constituted non-patrimonial damages
received as a result of a delict committed against her in terms of s
18
(a)
of the Act.
Section 18
(a)
of the
Act states as follows:
‘
Notwithstanding
the fact that a spouse is married in community of property—
(a)
any amount recovered by him or her by
way of damages, other than damages for patrimonial loss, by reason of
a delict committed against
him or her, does not fall into the joint
estate but becomes his or her separate property;
(b)
he or she may recover from the other
spouse damages in respect of bodily injuries suffered by him or her
and attributable either wholly
or in part to the fault of that spouse
and these damages do not fall into the joint estate but become the
separate property of the
injured spouse.’
[4]
The
respondent placed reliance on
Van
Den Berg v Van Den Berg
.
[1]
She contended that the non-patrimonial damages received as a result
of the motor vehicle collision in 2011 were personal in nature
and as
such should be excluded from the joint estate.
Van
Den Berg
is not relevant to the determination of this matter as it dealt
primarily with the question of whether damages received by a spouse
during the course of a marriage in community of property were either
contractual or delictual in nature. That court reasoned:
‘
The
damages received by the defendant are of a personal nature. The
purpose and objective is to take care of the defendant during
or
throughout his disabled life. Should the Legislature have intended
that such damages form part of the joint estate, the purpose
and
objective of such payment would be negated. It is, besides, fair and
equitable to exclude the money from the joint estate notwithstanding
the ethos of a marriage in community of property.’
[2]
[5]
Upon conclusion of the divorce proceedings, the
regional court ordered the division of the joint estate, but excluded
the investment
from the division. The regional court stated that the
meaning of ‘married in community of property’ in s 18
(a)
of the Act referred ‘to the stage when it has to be determined if
that property will be included in the joint estate’. That being
the
case, this would be at the stage of divorce as opposed to when such
damages accrued to a person, thus the investment would fall
out of
the joint estate.
[6]
Unhappy with the outcome in the regional court,
the appellant appealed to the Eastern Cape Division of the High
Court, Mthatha (high
court). The high court was split two to one, the
majority, Majiki and Jaji JJ, confirmed the regional court’s order
excluding the
investment from the joint estate. It acknowledged that
s 18
(a)
applied only
to a spouse injured after the conclusion of their marriage, but went
on to state:
‘
Still, I would not view the
non-reference to the spouses who were injured and paid before their
marriage in community of property
as an intentional exclusion. The
failure to specifically provide for them appears to be more of an
omission than an exclusion.
Therefore, in the light of the
fact that I find no exclusion of the class of people in the
respondent’s position, I would conclude
that their personal injury
[pay-out] too, should not form part of the joint estate.’
[7]
Mbabane AJ in a minority judgment concluded that
s 18 ‘by its design, applies where there is a joint estate. The
concept of a joint
estate comes into being on the date of the
marriage’. He understood that the object of the section was to
protect spouses and that
the respondent had a choice to exclude the
investment, one way of which was by entering into a marriage out of
community of property.
Thus, when the parties were married in
community of property that investment formed part of the joint
estate.
[8]
The proper approach to the interpretation of a
statute was recently restated in
C:SARS v
United Manganese of Kalahari (Pty) Ltd
:
‘
It
is an objective unitary process where consideration must be given to
the language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to those
responsible for its production. The approach is as applicable to
taxing statutes as to any other statute. The inevitable point
of
departure is the language used in the provision under
consideration.’
[3]
[9]
The context of s 18 must be read in its entirety,
and apparent therefrom is the plain language and words used. The
section highlights
that delictual damages received by a spouse during
the course of a marriage in community of property, which are
non-patrimonial in
nature (s 18
(a)
);
and damages for bodily injuries owing to the fault of one’s spouse
in terms of s 18
(b)
must be excluded from the division of the joint estate on divorce.
[10]
The protection afforded by s 18
(a)
applies notwithstanding a marriage in
community of property. In such a case, damages recovered during such
a marriage for non-patrimonial
loss becomes the property of the
injured spouse and does not form part of the joint estate. It does
not apply to damages recovered
prior to such a marriage.
Consequently, the damages attained by the respondent which were
received before the conclusion of
the marriage between the parties
were the property of the respondent. On being married in community of
property, the property of
each party to the marriage fell into the
joint estate, inclusive of any damages for non-patrimonial losses
recovered prior to the
marriage.
[11]
Thus, the respondent’s contention that she was
entitled to the protection afforded by s 18
(a)
is misplaced, absent the adoption of a different matrimonial property
regime which excluded the investment by way, for example, of
an
antenuptial contract. Therefore, the appeal must succeed.
[12]
In the result the following order is granted:
1
The appeal is upheld with no order as to costs.
2
The order of the Eastern Cape Division of the High Court, Mthatha is
set aside
and replaced with the following order:
‘
2.1
The appeal is upheld with no order as to costs.
2.2
The investment of the respondent is to be included in the joint
estate for the purposes of division
of the estate.’
__________________
W HUGHES
JUDGE OF APPEAL
Mocumie JA
[13]
I
have had the benefit of reading the judgment of Hughes JA in which my
other colleagues concur. However, I find myself in respectful
disagreement with her conclusion that the appeal ought to succeed on
the basis that ‘
the respondent’s
contention that she was entitled to the protection afforded by s
18
(a)
is misplaced,
absent the exclusion of the investment by way of an antenuptial
contract.’
[14]
The
majority disagrees with the crux of the respondent’s plea. They are
of the view that ‘
the
non-patrimonial damages received as a result of the motor vehicle
collision in 2011 were personal in nature and as such should
be
excluded from the division of the joint estate. Thus, the reliance on
Van
Den Berg v Van Den Berg
.’
[4]
However, they accept that ‘the damages [paid to] the respondent
which were received before the conclusion of the marriage [in
community
of property] between the parties were the property of the
respondent. They also hold the view that ‘on being married in
community
of property, the property of each party to the marriage
fell into the joint estate.’ In addition, they hold that ‘
Van
Den Berg
is not relevant to the determination of this matter as it dealt
primarily with the question of whether damages received by a spouse
during the course of a marriage in community of property were either
contractual or delictual in nature.’
[15]
As the majority in this judgment has mentioned, the principles of
interpretation of statutes are trite.
[5]
The Act does not define the word ‘damages’. The point of
departure must be the common cause fact which the majority judgment
also acknowledged that the damages were non-patrimonial and thus
personal in nature. In
Van
der Merwe v Road Accident Fund and Another
,
[6]
the Constitutional Court in interpreting the word ‘damages’
stated that the notion of damages is best understood not by its
nature
but by its purpose. The primary purpose of awarding damages is
to place, to the fullest possible extent, the injured party in the
same position [they] would have been in, but for the wrongful
conduct.
[7]
The court in
Van
den Berg
in defining the nature of this category of damages stated as follows:
‘
The
damages received by the defendant are of a personal nature. The
purpose and objective is to take care of the defendant during
or
throughout his disabled life. Should the Legislature have intended
that such damages form part of the joint estate, the purpose
and
objective of such payment would be negated. It is, besides, fair and
equitable to exclude the money from the joint estate notwithstanding
the ethos of a marriage in community of property.’
[8]
[16]
Besides the fact that ‘this matter …dealt primarily with the
question of whether damages received
by a spouse during the course of
a marriage in community of property were either contractual or
delictual in nature…’ as the
majority contends, the damages the
respondent received are exactly the same in nature and were awarded
for the same purpose as the
damages
Van
der Merwe
and
Van den Berg
dealt with. From the time that the RAF awarded the respondent
non-patrimonial damages, those were ring-fenced for her personal use
and for her personal injuries. The nature and purpose of the damages
could not be changed by the respondent entering into a marriage
in
community of property. If these damages are ordinarily excluded from
being divided, it matters not when the respondent received
them. In
any event, as a general rule, non-patrimonial damages are personal to
a particular person, and are therefore not divisible
whether or not
they are expressly excluded. Therefore, portions of the settlement
designated as ‘pain and suffering’ or ‘loss
of consortium’
are not divisible between the spouses. This is the same rule that
applies to gifts and inheritance – it is the
spouse’s ‘personal
property’ and not divisible.
[17]
The other significant principle in interpretation the majority
judgment lost sight of is the aspect that
deals with the context and
the purpose for which the text or section is intended for. The
textual interpretation preferred by the
majority does not assist in
resolving the issue in this matter as it undercuts the purpose of the
section. The issue requires a close
examination of the relevant
context and purpose of the section.
Should the
Legislature have intended that such damages form part of the
joint estate, the purpose and objective of such payment
would be
negated
.
[18]
First, in my considered view, the judgment of the Constitutional
Court in
Van
der Merwe,
laid
the foundation upon which s 18 in its entirety should be interpreted.
The RAF contended that the applicant chose to marry in
community of
property and should have been held to the proprietary consequences of
her choice, therefore, respondent waived the right
to attack the
validity of the laws.
[9]
The Constitutional Court held that
the
objective validity of a law is derived from the Constitution and not
personal choice or preference. It stated as follows:
‘
Section
39(2) obliges courts to interpret legislation in a manner that
promotes the spirit, purport and objects of the Bill of Rights.
And
importantly, s 172(1) makes plain that when deciding a constitutional
matter within its power, a court must declare that any law
that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency. Thus,
the
constitutional obligation of a competent court to test the objective
consistency or otherwise of a law against the Constitution
does not
depend on and cannot be frustrated by the conduct of litigants or
holders of the rights in issue. Consequently, the submission
that
a
waiver
would, in the context of this case, confer validity to a law that
otherwise lacks a legitimate purpose, has no merit
(Emphasis added).’
[10]
[19]
In this case, even if ‘the validity of the law’ was not
challenged, as the minority of the full court
held, which the
majority in this Court seems to uphold, the approach propounded in
Van der Merwe
means that this Court and so too the regional
court and the full court, is bound to interpret s 18
(a)
in
line with the dictates of s 39(2) of the Constitution which binds
courts when interpreting any legislation; by taking into account
the
spirit and purport of the values underpinning the Constitution
including s 9, the equality clause. To do otherwise would be unjust
and inequitable.
[20]
Second, the regional court correctly held that the division of the
estate must be determined at the time
of the dissolution of the
marriage, not when the marriage was entered into. So, in my view, and
in line with the interpretation I
espouse above, as at the time of
the division of the joint estate the respondent was entitled to the
same protection which ‘a spouse
in a marriage in community of
property’ provided by s 18(1)
(b)
. That RAF awarded the
respondent the damages before her marriage in community of property
cannot be used to disadvantage her. The
law cannot impose such an
interpretation of the joint estate on the parties as suggested by the
majority.
[21]
In conclusion, conscious of the role of courts in the determination
of issues before them and the responsibility
to defer certain matters
to the legislature, I would be remiss if I do not state that this is
an opportunity for the legislature
to study this judgment, and make
express provision for this class of persons as the respondent in this
matter to avoid any confusion
in the future.
[22]
Finally, if s 39(2) is invoked, as it ought to be, this Court is
bound to follow the interpretation and
logic propounded in
Van
der Berg
and
Van
der Merwe.
In
the result, I would find that the damages paid by RAF to the
respondent for her non-patrimonial/special damages meant for her
personal
use, before her marriage in community of property, do not
fall into the joint estate. The appeal ought not to succeed.
BC MOCUMIE
JUDGE
OF APPEAL
APPEARANCES
For appellant:

Z Z Matebese SC (with H Kelaotswe)
Instructed
by:
Caps Pangwa & Associates, Mthatha
Bokwa
Inc., Bloemfontein.
For respondent:

L L Sambudla (with Z Badli)
Instructed by:

Manitshana Tshozi Attorneys, Mthatha
Gcasamba
Inc., Bloemfontein
[1]
Van Den Berg v Van Den
Berg
2003 (6) SA 229
(T).
[2]
Ibid para 12.
[3]
C:SARS v United
Manganese of Kalahari (Pty) Ltd
[2020] ZASCA 16
;
2020 (4) SA 428
(SCA) para 8.
[4]
Van Den Berg v Van Den
Berg
2003 (6) SA 229
(T) para 12.
[5]
See
para 8 above. This approach was endorsed recently by the
Constitutional Court in
Road
Traffic Management Corporation v Wymark Infotech Pty Ltd
(440/2017)
[2018] ZASCA 11
(6 March 2018).
[6]
Van der
Merwe v Road Accident Fund and Another
(CCT48/05)
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) (30 March 2006).
[7]
Paragraph 37.
[8]
Van Den Berg v Van Den
Berg
2003 (6) SA 229
(T) para 12.
[9]
The
Van
der Merwe case
para 59.
[10]
Ibid
at para 61.