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[2016] ZAFSHC 202
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S v S (71/2015) [2016] ZAFSHC 202 (15 December 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 71/2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
V I
S
Plaintiff
and
M
A
S
Defendant
HEARD
ON:
28 OCTOBER 2016
JUDGMENT
BY:
TSATSI, AJ
DELIVERED
ON:
15 DECEMBER 2016
INTRODUCTION
[1]
This is an exception in terms of Rule 23 (1) of the Uniform
Rules of Court (“the Rules) brought by the plaintiff
against
the defendant (“the parties”) on the basis that the
defendant’s amended plea lacked the averments which
are
necessary to sustain a defence and also that the averments were bad
in law.
The defendant delivered a counter notice in response
to the exception.
[2]
The plaintiff has instituted a divorce
action against the defendant. The divorce is founded on the basis
that the marriage relationship
between the parties has irretrievably
broken down and has reached such a state of disintegration that there
is no reasonable prospect
of the reconciliation or the restoration of
a normal marriage relationship. For the sake of convenience the
parties will be addressed
as plaintiff and defendant.
FACTS
[3]
The defendant’s amended plea raised among others the following
issues:
“
6.
Ad paragraph 6:
The
marriage officer who was also a magistrate in Phuthaditjhaba
magistrate court solemnized the alleged “marriage”
under
the Black Administration Act 38 of 1927
section 22(6).
The
Magistrate asked the parties whether do they want to get “married”
In or Out of Community of Property.
The Plaintiff answered
that the parties have agreed to get “married”
Out of
Community of Property
. The declaration was then written down in
the Marriage Register and the parties, two witnesses and the
magistrate signed. The Defendant
and two witnesses were also made to
sign a declaration that : ”
there is no customary union
subsisting between me and any woman”.
The two documents
were stamped with the Department of Justice stamp dated 9 May 1996.
In
the Plaintiff’s Combined summons, Case No. 71/2015 stamped
8
th
January 2015, the Plaintiff instituted a ‘divorce
action” against the Defendant and claimed that the parties were
“married”
to each other In
Community of Property
on the 9
th
May 1996. The parties conducted themselves in
accordance of their “agreement”
(OUT OF COMMUNITY OF
PROPERTY)
as stipulated in the Marriage Register K373551.
Both
the Plaintiff and Defendant bought their assets separately”.
[4]
Plaintiff raised five exceptions which were as follows:
“
1.1
Plaintiff instituted a divorce action against the Defendant and claim
that the parties were married to each other in community
of property
on the 9
th
May 1996;
1.2
Section 22 (6) of the Black Administration Act, 38 of 1927 has been
repealed by the Marriage and Matrimonial Property Law Amendment
Act,
3 of 1988 with the result that civil marriages entered into between a
man and a woman after 2 December 1988, the date of which
Act 3 of
1988 came into operation will be governed by the Matrimonial Property
Act.
1.3
The Plaintiff and the Defendant did not enter into an antenuptial
contract and therefore the marriage regime applicable on the
parties
marriage is that of in community of property and in accordance with
the Matrimonial Property Act.
1.4
Therefore the marriage is not null and void.
1.5
The Defendant did not join the Department of home Affairs and The
State in the matter, therefore the plea constitute a non-joinder”.
ISSUES
[5]
The issue was to determine whether or not the amended plea
lacked the averments which were necessary
to
sustain a defence and whether or not the said averments were bad in
law.
The other issue was whether or
not the plaintiff
has discharged the required onus of proof
for this Court to uphold the exception.
SUBMISSIONS
[6]
Counsel for the plaintiff, Adv Els, submitted that the parties are
married in community of property not out of community of
property as
submitted by the defendant. He further submitted that no facts
outside pleadings can be brought into the issues. He
argued that the
defendant’s amended plea did not make mention of the
Constitutional rights. He referred me to paragraph 3.3
of his heads
where he argued that “
in order to succeed an excipient has
the duty to persuade the Court that upon every interpretation which
the pleading in question,
and in particular the document on which it
is based, can reasonably bear, no cause of action or defence is
disclosed; failing this
the exception ought not to be upheld”.
He further submitted that an exception provides a useful
mechanism for weeding out cases without legal merit. His argument
was
that if a pleading is bad in law, the answer is to except.
[7]
The submission on behalf of the plaintiff was that the defendant
failed to file the amended pages. The amended pages were only
filed
on 8 August 2016. Counsel for the plaintiff further submitted that
the defendant should have joined the Magistrate and the
Department of
Home Affairs. He argued that the amended plea constituted a
non-joinder.
[8]
It was submitted on behalf of the plaintiff that counter notice of
the defendant should be disregarded. He further submitted
that a
conclusion that the defendant made was not a defence. This conclusion
by the defendant was that the marriage was null and
void. Further
submission on behalf of the plaintiff was that at the time when the
parties got married the Black Administrative
Act, 1927 (Act No. 38 of
1927) (BAA), was repealed. Counsel for the plaintiff
further submitted that argument by the
defendant that the
signing of section 22 (6) of the Black Administration Act is
inconsistent with the supremacy of the Constitution
and that the
Black Administration Act cannot be law, was bad in law. Counsel for
the plaintiff urged me to uphold the exception
with costs, struck out
the defendant’s amended plea as set out on paragraph six and
order the defendant to pay the costs
of the exception.
[9]
Mr S. represented himself. He argued his own case. He submitted that
as far as he was concerned the marriage was null and void.
He further
submitted that the Court could not compel him to be married in
community of property. He referred me to page six of
his heads which
stated that the defendant’s submission was that on the 2
nd
of December 1988 the alleged unlawful “marriage” did not
exist at the time at which the repeal took effect. It was
further
submitted that section 12 (2) (b) did not result in the continued
existence of section 22 (6) of the Black Administration
Act, 1927
(Act No. 38 of 1927). The defendant’s further submission was
that section 22(6) of the Black Administration Act
did not regain the
force of law on the 9
th
of May 1996 and therefore its
reference in the
Matrimonial Property Act 88 of 1984
as amended and
Divorce Act 70 of 1979
as amended respectively, refers to marriage
entered into before the commencement of
Matrimonial Property Act 88
of 1984
as amended. Mr S. relied on a document (annexure “B”)
which was a copy of the original, certified as a true copy of
the
original as indicated on the stamp of the Director General of home
Affairs dated 11 February 2015. This document, purported
to be a
marriage certificate with the Department of Justice (dated …..
1996) and Home Affairs’ (dated 11 February
2015) official
stamps. The full date on the document was not legible. The said
document is titled “Marriage Register”.
[10]
He further submitted that his constitutional rights have been
infringed especially his right to dignity and respect. He has
been
labouring under the impression that he was married out of community
of property only to discover after eighteen (18) years
that he was
allegedly married in community of property. He argued that during the
marriage with his wife they conducted their marriage
as if they were
married out of community of property not in community of property.
They both have been keeping their
assets and property
separately. He urged me to dismiss the plaintiff’s exception
with costs, uphold paragraph six of his
amended plea and then
submitted that the plaintiff should pay the costs of the exception.
THE
LAW
[11]
Rule 23
(1) provides as follows: “Where any pleading is
vague and embarrassing or lacks averments which are necessary to
sustain
an action or defence, as the case may be, the opposing party
may, within the period allowed for filing any subsequent pleading,
deliver an exception thereto and may set it down for hearing in terms
of paragraph
(f)
of subrule (5) of rule (6): Provided that
where a party intends to take an exception that a pleading is vague
and embarrassing he
shall within the period allowed as aforesaid by
notice afford his opponent an opportunity of removing the cause of
complaint within
15 days: Provided further that the party excepting
shall within ten days from the date on which a reply to such notice
is received
or from the date on which such reply is due, deliver his
exception”.
[12]
Rule 18 (4) of the Uniform Rules of Court provides as follows:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, defence
or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto”.
[13]
The object of pleadings is to define the issues. In
Imprefed
(Pty) Ltd v
National Transport
Commission
, Kumleben JA and Nienaber JA referred with
approval to
Odgers’ Principles of Pleading and Practice in
Civil Actions in the High Court of Justice
, 22
nd
ed at
113 and stated the fundamental principle of pleadings as follows:
“
The
object of pleading is to ascertain definitely what is the question at
issue
between the parties; and this object can only be obtained
when each party states his case with precision
[1]
”.
[14]
In
Benson
and Simpson v Robison
1917
WLD 126
,
the general principles of pleading were explained by Wessels J -
"The
plaintiff must not set out the evidence upon which he relies, but he
must state clearly and concisely on what facts he
bases his claim and
he must do so with such exactness that the defendant will know the
nature of the facts which are to be proved
against him so that he may
adequately meet him in court and tender evidence to disprove the
plaintiff's allegations."
[15]
Beck’s : Theory and
Principles of Pleading in Civil Actions
at page 46 sets the position as follows:-
"Although
pleadings must be carefully drawn and be well turned out, the court
ought not to read them pedantically. The rules
do not require that
pleadings be drawn up in perfect language, but that the allegations
of the parties should be clearly cognisable.
Thus the court will not
hold that a pleading is bad in law provided that such pleading shows
the other party what the claim or
defence, as the case may be, is,
with reasonable clarity even though there may be allegations in such
pleading which are unnecessary
(though not prejudicial to the
opposite party) and even though such pleading may not be elegant."
At page 47 it continues
as follows:
The fundamental
principles which governs all pleadings can be summarized as follows:
(a)
Pleadings must be brief and concise and couched in summary form. …
(b)
Pleadings should state facts and facts only, that is to say they
should not contain statements of either law or the evidence
required
to establish the facts.”
[16]
In
Jowell
v Bramwell Jones
1998
(1) SA 836
(W)
at 898 the Court emphasised that an exception will not be upheld
where it is directed at a particular paragraph within a cause
of
action. At 902-3, Heher J stated the following:
"Furthermore,
in approaching these exceptions, I shall bear in mind the following
general principles:
(a)
minor blemishes are irrelevant;
(b)
pleadings must be read as a whole; no paragraph can be read in
isolation;
(c)
a distinction must be drawn between the facta probanda, or primary
factual allegations which every plaintiff must make, and
the facta
probantia, which are the secondary allegations upon which the
plaintiff will rely in support of his primary factual allegations.
Generally speaking, the latter are matters for particulars for trial
and even then are limited. For the rest, they are matters
for
evidence;
(d)
only facts need be pleaded; conclusions of law need not be pleaded;
(e)
bound up with the last-mentioned consideration is that certain
allegations expressly made may carry with them implied allegations
and the pleading must be so read:
cf
Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd
1982
(4) SA 371
(D)
at 377, 379B, 379G--H.”
[17]
As indicated in
Absa
Bank v Boksburg TLC
(Government
of the Republic of South Africa, third party)
[2]
,
a pleading will not be excipiable where the party knows adequately
what the plaintiff's case is and its attorneys are able to
take
instructions and record a meaningful response to such pleading. The
defendant bears the onus of persuading the Court that
on every
interpretation no cause of action has been revealed. See
Francis
v Sharp
2004
(3) SA 230
(C)
at 237D-I.
[18]
On 2 December 1988, section 22 of
the BAA was amended by section 1 of the Marriage and Matrimonial
Property Law Amendment Act 3
of 1988. A civil marriage concluded in
contravention of this section did not dissolve the customary union.
As the amendment was
not retroactive, the position before 2 December
1988 was left unchanged.
Section 22 in its
amended form was ultimately repealed by Recognition of Customary
Amendment Act
(“RCMA”)(Bakker
& Heaton
2012 TSAR 586
587).
The
Marriage and Matrimonial Property Law Amendment Act, 1988
(MMPLAA) provides as follows:
18.1
Amendment of section 7 of Act 70 of 1979 as amended by
section 36 of act 88 of 1984 provides that:
(2)
Section 7
(3)
of the
Divorce Act 1979
provides that “ (3) A court granting a
decree of divorce in respect of a marriage out of community of
property---
(a) entered into before the commencement of the
Matrimonial Property Act,1984, in terms of an antenuptial
contract by
which community of property community, community of
profit and loss and accrual sharing in any form are excluded or (b)
entered
into before the commencement of the Marriage and Matrimonial
Property Law Amendment Act, 1988, in terms of section 22 (6) of the
Black Administration Act, 1927 (Act No. 38 of 1927), as it
existed immediately prior to its repeal by the said Marriage and
Matrimonial Property Law Amendment Act, 1988, may, subject to the
provisions of subsections (4), (5) and (6), on application by
one of
the parties to that marriage, in the absence of any agreement between
them regarding the division of their assets, order
that such assets,
or such part of the assets, of the other party as the court may deem
just be transferred to the first- mentioned
party”.
18.2
Amendment of section 21 of Act 88 of 1984 as amended by section 1
of Act 91 of 1986 provides that:
(3)
Section 21 of the Matrimonial Property Amendment Act 1988 was amended
as follows: “(a) Notwithstanding anything to the
contrary in
any law or the common law contained, but subject to the provisions of
paragraphs (b) and (c), the spouses to the marriage
out of community
of property------- (i) entered into before the commencement of this
Act in terms of an antenuptial contract by
which community of
property and community of profit and loss are excluded; or (ii)
entered into before the commencement of the
Marriage and Matrimonial
Property Law Amendment Act,1988, in terms of section 22(6) of
the Black Administration Act, 1927(Act
No. 38 of 1927), as it was in
force immediately before its repeal by the said Marriage and
Matrimonial Property Law Amendment Act,
1988, may cause the
provisions of Chapter I of this Act to apply in respect of their
marriage by the execution and registration
in a registry within
two years after [that] the commencement of this Act or, in the case
of a marriage contemplated in subparagraph
(ii) of this paragraph,
within two years after the commencement of the said Marriage and
Matrimonial Property Law Amendment Act1988,
as the case maybe,
or such longer period, but not less than six months determined by the
Minister by notice in the
Gazette
of a notarial contract
to that effect”.
18.3
Amendment of section 25 of Act 88 of 1984 as amended by section 2
of Act 91 of 1986 provides that:
“
4.
Section 25
of the
Matrimonial Property Act is
amended as follows:
“(2) Notwithstanding anything to the contrary in any law or the
common law contained, the spouses to
a marriage [other than a
marriage contemplated in subsection (1)] entered into before the
commencement of this Act and in
respect of which matrimonial property
system was not governed by section 22 of the Black Administration
Act, 1927 (Act No. 38 of
1927), may------ (a) if they are married in
community of property, cause the provisions of Chapters II and
III of this Act
to apply to their marriage; or (b)if they are married
out of community of property and the wife is subject to the marital
power
of the husband [was not excluded in terms of the antenuptial
contract concerned], cause the provisions of Chapter II of this Act
to apply to their marriage, by the execution and registration in a
registry within two years after the said commencement or such
longer
period, but not less than six months, determined by the Minister by
notice in the Gazette, of a notarlal contract to that
effect, and in
such a case those provisions apply from the date on which the
contract concerned was so registered”;
and by the addition of
the following subsection: “(3) Notwithstanding anything to the
contrary in any law or the common law
contained, the spouses to a
marriage entered into before the commencement of the Marriage
and Matrimonial Property Law Amendment
Act, 1988, and in
respect of which the matrimonial property system was governed
by section 22 of the Black Administration
Act, 1927 (Act No. 38 of
1927), may------ (a) if they are married in community of property,
cause the provisions of Chapter II
and III of this Act to apply to
their marriage; or (b) if they are married out of community of
property and the wife is subject
to the marital power of the husband,
cause the provisions of Chapter II of this Act to apply to their
marriage by the execution
and registration in a registry within two
years after the said commencement or such longer period, but not less
than six months,
determined by the Minister by notice in the
Gazette, of a notarial contract to that effect, and in such a case
those provisions
apply from the date on which the contract concerned
was so registered”.
[19]
In
Moola
& others v Aulsebrook NO & others
[3]
the court summarised the requirements of a putative marriage
was as follows:
‘
(a)
there must be bona fides in the sense that both or one of the parties
must have been ignorant of the impediment to the marriage;
(b)
the marriage must be duly solemnised;
(c)
the marriage must have been considered lawful in the estimation of
the parties, or of that party who alleges the bona fides.’
[20]
In
Ngubane
v Ngubane
1983 (2) SA 770
(T) [16] at 773, 774
a requirement for
the law’s recognition of a putative marriage was said to be a
“marriage ceremony performed by a marriage
officer”.
The
Court in
Ngubane (supra)
may have doubted whether the decisions relied upon in [
Ramayee
v Vandiyar
1977 (3) SA 77
(D)
] ought to have been convincing. It
is convenient to distinguish three levels of protecting the . . .
bona fides
of
parties. These are:
(a)
The parties may do everything required by law to create a valid
marriage but despite proper solemnising thereof, the marriage
is a
prohibited one.
(b)
Parties equally do whatever the law requires . . . but
find that their efforts were in vain. Thus although the
marriage is
permissible, their best efforts could not achieve the desired result
because the purported marriage officer was not
authorised to act as
such.
(c)
The parties make no attempt to comply with the civil law. They may
even, as I understand the present case, make no attempt to
establish
what those requirements are.
[21]
As regards the mis-joinder
the matter is
regulated by Rule 10, the relevant portion of which provides:
“
10(3)
Several defendants may be sued in one action either jointly, jointly
and severally, separately or any alternative, whenever
the question
arising between them or any of them and the plaintiff or any of the
plaintiffs depends upon the determination of substantially
the same
question of law or fact which, if such defendants were sued
separately, would arise in each separate action.
”
[22]
The test to determine whether or not there is a mis-joinder is
whether or not the party has a direct and substantial interest
in the
subject matter of the action that is a legal interest in the subject
matter of the litigation which may be affected prejudicially
by the
judgment of the Court
[4]
.
[23]
An objection of misjoinder of causes of action will be well-founded
only where all three of the following requirements are satisfied:
(1)
The defendants are separate and distinct (meaning that there are no
common defendants); (2) each cause of action is separate
and distinct
and (3) there is no question of law or fact that is common to the
separate causes of action.
Herbstein
and Van Winsen
The
Civil Practice of the Superior Courts in South Africa
4
th
ed at 189
and
the reference therein to
Ackermann
v Pasquali and Montagu Divisional Council
1913
CPD 296.
Rule
10(3) requires that the questions of law and fact upon which the
right to relief depends must be “
substantially
”
the same. This means that the questions of law and fact must “
in
the main
”
or in their “
principal
essentials
”
be “
essentially
”
the same.
Dreyer
and Others v Tucker’s Land and Development Corporation (Pty)
Ltd
1981
(1) SA 1219
(T) at 1224F-1225B.
[24]
Convenience is a further relevant consideration. At common law a
number of defendants may be joined whenever convenience so
requires
.
Morgan
and Another v Salisbury Municipality
1935
AD 167
at
171;
Rabinowitz
and Another NNO v Ned-Equity Insurance Co Ltd and Another
1980
(3) SA 415
(W)
at 419E-F.
APPLICATION
OF THE LAW TO FACTS
[25]
An excipient must clearly and concisely state the grounds upon which
the exception is taken, and is bad in law. In
casu
the purpose of the exception was that the defendant’s amended
plea was bad in law. Defendant’s contention was that
the
marriage between him and the plaintiff is null and void as the
marriage took place under the BAA whilst the said Act was repealed.
There is no reason why that defence is bad in law. This is a very
important fact that should be considered by this Court. The second
ground on which the exception was based, was that the amended plea
did not disclose a cause of action, the third ground was that
the
defendant failed to join the Department of Home Affairs and the
Magistrate who was the Marriage Officer. The non-joinder
point
is not valid. This is a divorce matter which is a personal and
intimate relationship between two parties. The defence is
not bad in
law on the grounds stated in the exception and because of the effect
of marriage under BAA which was repealed at the
time may
have far reaching legal consequences for the parties.
[26]
In any exception application
prejudice to the
excipient is the ultimate test. An
exception will not be
allowed unless the excipient will be seriously prejudiced if the
offending allegations were not expunged.
In
casu
the
plaintiff omitted to mention in her pleadings that the parties got
married under the Black Administration Act, out of community
of
property even though the said Act was repealed. Both parties
will be prejudiced if the exception is upheld.
[27]
I am of the view that the amended plea, though not elegant and badly
drawn as it was supposedly drafted by Mr S. himself, disclosed
what
the defence was.
Thus this Court cannot hold
that the amended plea was bad in law. The amended plea showed the
plaintiff what the cause of action
was, with reasonable clarity even
though there may be allegations which were unnecessary.
The plaintiff knew what the
defendant’s defence was.
In
order to succeed, the plaintiff had the duty to persuade the Court
that upon every interpretation which the pleading in question
could
reasonably bear, no cause of action was disclosed by the defendant,
failing this, the exception ought not to be upheld.
[28]
Black persons’ marriage who married in terms of the Black
Administration Act, the marriage was contracted out of community
of
property by virtue of the provisions of section 22(6) of the Black
Administration Act, No. 38 of 1927 (BAA) which was repealed
on 2
December 1988 by section 1(e) of the Marriage and Matrimonial
Property Act, No. 3 of 1988. In terms of section 22(6) of the
BAA,
marriages between black persons were deemed to be, and were
automatically out of community of property. If the prospective
parties to a marriage covered by the Act chose to be married in
community of property, such parties were required to make a joint
declaration of their intention to be married in community of property
to a magistrate, commissioner or marriage officer, thirty
days prior
to the marriage. With the repeal of the BAA, the Legislator could
never have intended that marriages out of community
of property would
automatically be rendered in community of property. Marriage being a
private matter between two people in love,
founded on consent, would
require that those two people decide on their own to change their
matrimonial property. I am of the view
that it was not the intention
of the persons who were married out community of property under the
BAA, and who chose to be so married,
suddenly found themselves
married in community of property through the unilateral action by the
State, after 1988. In
casu
it was long after the BAA was
repealed. There are clear commercial, economical, emotional and
psychological considerations which
militate against the aforesaid
interpretation favoured by the plaintiff.
28.1
The interesting part is that Counsel for the plaintiff argued
and conceded on pages five to six on paragraph 4.1 in his heads that:
“
A
marriage between Blacks contracted after the commencement of the
Black Administration Act shall not produce the legal consequences
of
the marriage in community of property between the spouses, provided
that in the case of a marriage contracted otherwise than
during the
subsistence of a customary union between the husband and any other
woman other than the wife, it shall be competent
for the intending
spouses to declare jointly before any magistrate that it is their
intention and desire that community of
property and profit and loss
shall result in their marriage, except as regards any land in a
allocation held under quitrant tenure,
such land shall be excluded
from such community”.
In
casu
the parties did not declare jointly before any magistrate
that it was their intention and desire that community of property and
profit and loss shall result in their marriage. Therefore it is clear
that the parties are still married out of community of property.
The only problem is that in
casu
the marriage was not
contracted after the commencement of the BAA but after its repeal.
[29]
According to section 21 (1) of the Matrimonial Property Act married
persons who wished to change their
matrimonial property
system, including the marital power whether married before or after
the commencement of the Matrimonial Property
Act may jointly apply to
court for leave to change the matrimonial property system,
including the marital power, which applies
to their marriage.
The court may grant the order, if satisfied that the reasons given
are sound, sufficient notice is given
to the creditors and no person
will be prejudice.
In casu
no such application took
place so the parties are still married out of community of property.
There is no basis in law or fact upon which I can find for the
plaintiff.
[30]
The marriage between the plaintiff and the defendant complies with
the requirements of a putative marriage as described above.
There
are
bona fides
between the parties in the sense that both of them have been ignorant
of the fact that when they married the BAA was repealed and
therefore
they could not have married under the BAA. They were unaware of this
impediment to the marriage. Secondly their marriage
was duly
solemnized by the magistrate. Thirdly they bona fide believed that
their marriage was valid. In my view, the defendant’s
averments
do reveal a cause of action for a putative marriage.
[31]
In this matter it is common cause that both parties in good faith
believed that they were lawfully married, the plaintiff believed
that
the marriage was in community of property whereas the defendant
believed that the marriage was out of community of property.
If the
plaintiff indeed acted and succeeded in changing their matrimonial
property regime, from out of community of property to
in community of
property she ought to have been in possession of some reliable
documentary proof that their matrimonial property
regime had been
amended. Besides she could not have acted alone excluding the
defendant in changing their matrimonial property.
The Act is very
clear, parties must act jointly not unilaterally. In the
absence of such proof, the veracity of the plaintiff’s
version
of how they are married in community of property is highly
questionable. What the plaintiff may be seeking to rely
on
was a remedy derived from the law of partnership. Hence for her
claim to succeed she has to establish that she and
the defendant were
not only living together as husband and wife, but that they were
partners
[5]
. Although the
plaintiff did not specifically allege that the universal partnership
between her and the defendant came into existence
by tacit agreement,
from the averments in her particulars of claim, she appears to rely
on universal partnership to ground her
claim against the defendant
although not specifically pleaded. This is despite the fact that she
alleged that the marriage was
in community of property. Where a party
claims universal partnership she must allege and prove that the
contracting parties
agreed to put in common all their property both
future or existing (
universorum
bonorum)
or
that they contracted that whatever they acquire during the marriage,
from any kind of commerce will be property of the partnership
(
universorum
quae ex quaestu venlunt)
.
But prior to an examination of the averments of the party relying on
universal partnership, the antenuptial contract that governs
the
marriage of the parties needs be examined
[6]
.
[32]
There was a copy of the marriage certificate in the file from
Department of Home Affairs that was issued on 23 June 2000. The
defendant produced a detailed marriage register that purported to be
a marriage certificate issued by the Phuthaditjhaba Magistrate
Court.
What is written in section E is “
Out of community of
property”,
indicating that the parties are married out of
community of property. Attached to the said marriage register was
another document
titled, “
Declaration under section 22 (3)
of the Black Administration Act, 1927(Act 38 of 1927) as amended
”.
Below the said document was a clause which provided that:
“
This
form must accompany the marriage register and copy of the register
when those documents are forwarded to the relevant regional
office/district office of the Department of home Affairs.”
[33]
This exception can be readily disposed of. What falls to be
considered is whether it is competent for the defendant to join
the
Department of Home of Affairs and the Magistrate. I do not agree with
counsel for the plaintiff that these two parties should
be joined for
now.
The argument places the cart before the horse. The
putative marriage as it stands is prejudicial to the parties. I agree
with counsel
for the plaintiff that Mr S. raised issues of his
constitutional rights at athe hearing of this exception, which were
not in his
amended plea. Mr S. was bound by what was contained in his
amended plea. He cannot be allowed to raise issues outside his
amended
plea.
[34]
Counsel for the plaintiff did not refer me to specific
authority that he relied on to argue that the plaintiff changed the
marriage
from out of community of property to in community of
property. There is no such authority as both parties needed to make a
joint
application to court for leave to change their matrimonial
property system. I am of the view that the marriage between the
parties
is not null and void but is putative.
I
am satisfied that
the amended plea disclosed an adequate
defence and that such a defence was not bad in law.
I
am not persuaded that the plaintiff
discharged the required
onus of proof for this Court to uphold the exception.
[35]
In the circumstances, the exception must fail.
[36]
I hereby give the following order:
36.1
The exception is dismissed.
36.2
The defendant is granted leave to amend the plea
36.3
The defendant is ordered to file his amended plea within ten days
from the date of this order.
36.4
The costs are reserved for decision by the trial Court.
______________
E.
K. TSATSI, AJ
On
behalf of the plaintiff: Adv J Els
Instructed
by: Honey
Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Mr. M.A. S.
(Represented
himself)
BLOEMFONTEIN
[1]
1993 (3) SA 94
(AD) at 107D
[2]
1997
(2) SA 415
(W)
at 422C-D
[3]
1983
(1) SA 687
(N) at 690H.
[4]
Henri
Viljoen Pty (Ltd) Awerbunch Brothers
1953 (2) SA 151
(
O) at 168 - 170.
[5]
Butters
v Mncora
2012
(4) SA 1
(SCA) para 11.
[6]
Wiid
v Wiid
[2011]
JOL 27572
(NCK
).