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[2016] ZAKZPHC 117
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Masondo v Masondo and Others (AR385/16) [2016] ZAKZPHC 117 (21 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
Case
No: AR 385/16
In
the matter between:
ZANYANA
MONICA
MASONDO APPELLANT
and
MSIZI JOEL
MASONDO FIRST
RESPONDENT
GOVERNMENT EMPLOYEES
PENSION FUND SECOND
RESPONDENT
THEMBA ARCHIBALD
NGXINGWENI THIRD
RESPONDENT
Coram: Vahed et
Poyo Dlwati JJ
Heard: 13 June
2016
Delivered: 21
June 2016
ORDER
On
appeal from the Durban Regional Court, Mr S B Msani sitting as a
court of first instance:
‘
The
appeal is dismissed with costs
JUDGMENT
POYO
DLWATI J
[1]
This is an appeal against the decision of the Durban Regional
Magistrates’ Court dismissing the appellant’s application
to vary an order it made on 30 October 2013, with costs.
[2]
The appellant and the first respondent were married to each other in
community of property on 18 November 1983. Exhibit ‘A’
which is
a
copy of their marriage certificate handed in as evidence in the court
a quo
reflects
this much. Attached to the marriage certificate is an extract from
the marriage register (also referred to as the declaration)
signed by
both parties on the date of their wedding and this was marked as
Exhibit ‘B’. In paragraph 14 of Exhibit
‘B’,
the following is endorsed: ‘In community of property and of
profit and loss in terms of Section 22(6) of
Act No.38 of 1927’.
[3]
During October 2012, the appellant instituted divorce proceedings
against the first respondent. Paragraph 4 of the particulars
of claim
attached to the summons reads as follows:
‘
4.1 The
parties were married to each other in Durban by civil rights on 18
November 1983.
4.2 By virtue of
section 22(6) of the Black Administration Act No.38 of 1927; as
amended, civil marriages of black persons entered
into prior to the
commencement date of the Marriage and Matrimonial Property Law
Amendment Law Act 3 of 1988 are regarded as being
marriages out of
community of property.
4.3 The Marriage and
Matrimonial Property Law Amendment Act 3 of 1988 came into operation
on 2 December 1988.
4.4 The parties did
not conclude a joint written declaration within one month prior to
their marriage to the effect that it is their
intention and wish that
their marriage should be in community of property.
4.5 The parties have
not changed the matrimonial system applicable on their marriage.
4.6 As such parties
are married to each other, out of community of property’.
[4]
Prior to the date of hearing of the divorce proceedings
correspondence was exchanged between the appellant’s (Mr
Nzimande)
and the first respondent’s (Mr Buthelezi) legal
representatives regarding, amongst other issues, the matrimonial
regime applicable
to the marriage and the division of the joint
estate of the parties. One such correspondence is a letter dated 24
July 2013 from
Mr Nzimande addressed to Mr Buthelezi and the second
line of that letter reads:…we confirm having now taken
instructions
from client who accepts the extract can be regarded as
the required declaration.’ It was common cause between the
parties
that this was in reference to the extract from the marriage
register attached to the marriage certificate.
[5]
Thereafter, on 30 October 2013 during the divorce proceedings, Mr
Nzimande, applied, which application was granted, for the
amendment
of paragraph 4 of the plaintiff’s particulars of claim to read
that the parties were married to each other by civil
rights on 18
November 1983 in community of property. After the appellant’s
evidence was led the learned magistrate made the
following order:
‘
1. Order of
decree of divorce is granted.
2. No order as to
costs.
3. The joint estate
shall be divided equally.
4. The Plaintiff’s
pension fund is to be endorsed 50 percent in favour of the defendant
against the Government Employees Pension
Fund’.
[6]
Apparently, after the divorce proceedings the parties could not agree
on how the joint estate was to be divided and an application
was
launched for the appointment of the third respondent as the
liquidator of the joint estate. The third respondent did not take
any
part in these proceedings. Before that application could be heard the
appellant launched an urgent application in the Durban
High Court
seeking to interdict the third respondent from liquidating the joint
estate until an application to vary the court order,
dated 30 October
2013, could be made.
[7]
Subsequently and on 4 June 2014, the appellant launched an
application in the Durban Regional Court seeking the following order:
‘
That the
decree of divorce order granted in favour of the applicant on 30
October 2013 under case number RC 4890/12 is hereby varied
and to
order and/or declare as follows:
a.
That the marriage
relationship that existed between the parties is declared to have
been ‘Out of community of property’.
b.
That the bonds of marriage
subsisting between the plaintiff and the defendant be and are hereby
dissolved;
c.
That there is no division
of estate and/or pension interest;
d.
That there is no order as
to costs.’
[8]
The gist of the appellant’s claim in the court
a
quo
was that it was
incorrect for her attorney to have sought an amendment in the
particulars of claim that her marriage was in community
of property
whereas it was out of community of property. She contended that she
was never advised of this amendment beforehand
and further it was
wrong as it sought to change her marriage regime from one out of
community of property to one in community of
property without
complying with the provisions of the Matrimonial Property Act 88 of
1984 (‘the MP Act’). She further
contended that in terms
of section 22 of Act 38 of 1927 her marriage was out of community of
property as they (she and the first
respondent) had not signed a
declaration or otherwise 30 days prior to their date of marriage. She
therefore sought the variation
of the order so that her marriage
would remain out of community of property and that she did not have
to pay the first respondent
half of her pension interest accumulated
with the second respondent.
[9]
The application was opposed by the first respondent and he pointed
out various inconsistencies in the appellant’s affidavit
and to
the affidavit the appellant had made in her interdict application to
the Durban High Court. These were also in contradiction
of the
various concessions made by Mr Nzimande to Mr Buthelezi. Perhaps it
is important to note at this stage that the appellant
was represented
by another attorney. The respondent further drew the court’s
attention to the contents of the marriage certificate
and the
marriage register as alluded to in paragraph 2 above. The respondent
further averred that the parties had agreed in 2013,
prior to the
date of divorce that their marriage was in community of property.
This fact, the respondent averred, was also supported
by the fact
that the title deed of their immovable property, situated at 12 Aloe
Road, Amanzimtoti, described them as being married
in community of
property. Furthermore, all of the negotiations that subsequently
followed regarding the division of the joint estate
were premised on
the fact that the marriage was in community of property.
[10]
The learned magistrate, after having considered the lengthy arguments
presented to him by both parties dismissed the application
with
costs. It is that decision that is the subject of this appeal.
However, before dealing with the merits of the appeal, the
appellant
applied for condonation for the late delivery of the appeal record.
This, she averred, was due to the fact that there
were delays by
Sneller Recordings in producing a transcribed record of the
proceedings. The application was not opposed by the
first respondent.
We were satisfied that the delay was sufficiently explained and we
granted the application for condonation.
[11]
The main ground of appeal was that the learned magistrate had erred
in accepting that the marriage between the parties was
one in
community of property. He ought to have taken cognisance of the fact
that section 22 of Act 38 of 1927 read with section
35 of the KwaZulu
Act on the Code of Zulu Law No.16 of 1985 provides that a civil
marriage between Black citizens shall
‘
produce the
legal consequences of a marriage out of community of property between
the spouses: Provided that the intending spouses
may, at any time
within one month prior to the celebration of such marriage, declare
jointly before any Commissioner or Magistrate
or other marriage
officer … that it is their intention and desire that community
of property and of profit and loss shall
be included in their
marriage’.
The
other grounds are interlinked to this ground and I will therefore
deal with the issues simultaneously.
[12]
As correctly found by the learned magistrate, the parties had agreed
prior to the date of the divorce proceedings that their
marriage was
one in community of property contrary to what was initially averred
in the particulars of claim. This seems to have
been borne out by the
marriage certificate itself which indicates this much and the
marriage register which seems to have been
produced by the first
respondent during the course of the settlement negotiations between
the parties. This, it seems to me, was
the reason why Mr Nzimande
applied for the amendment of the particulars of claim. It
therefore cannot be argued that the
amendment of the particulars of
claim was tantamount to an amendment of the parties’
matrimonial regime as contemplated in
section 21 of the MP Act.
[13]
As the amendment was supported by the production of the marriage
certificate and the marriage register signed by both parties,
it put
to rest the issue of the marriage regime between the parties. It
therefore was not open to the learned magistrate to make
a finding
about the marriage regime as it was not in issue. That the marriage
register was not signed one month prior to the marriage
is neither
here nor there. The fact of the matter is that it was signed before
they got married. The important factor, and I am
of the view that
this was the intention of the legislature, is that both parties had
declared their intention to be married in
community of property by
signing the declaration prior to them getting married. And as alluded
to earlier, it was not open to the
learned magistrate to require
evidence in this regard as it was not an issue before him. As the
issue was not canvassed at trial,
it is therefore not justiciable on
appeal
[1]
.
[14]
Furthermore, the evidence was that the parties had, throughout their
marriage, conducted their affairs as though they were
married in
community of property. This was evidenced by the fact that when the
respondent had resigned from his employment at the
Department of
Education, he used some of his pension benefits to buy a motor
vehicle for the appellant. This was never disputed
by the appellant.
Furthermore the title deed of their Amanzimtoti residence reflects
their marriage regime to be one of in community
of property, a fact
which was never disputed until the divorce proceedings.
[15]
Finally when the appellant was giving evidence during the divorce
proceedings in the court
a
quo,
she
was asked whether it was correct that she had no objection to the
records of the Government Employees Pension Fund (second respondent)
being endorsed to reflect the respondent’s share in the said
fund and her response was ‘no problem’. It is therefore
disingenuous for the appellant to put blame on anyone at this stage
that she was never privy to what the consequences would be
once the
decree of divorce was granted. In my view, she knew that there would
be a division of the joint estate and hence the issue
of their
marriage regime was never at issue. In any event, the learned
magistrate could only vary his court order if any of the
circumstances mentioned in section 36(1) of the Magistrates Court Act
32 of 1944, as amended, existed.
[2]
I am satisfied that these do not apply in this matter.
[16]
As the essential function of an appeal court is to determine whether
the court below came to a correct conclusion
[3]
,
in this instance it did. Accordingly, the learned magistrate,
correctly in my view, dismissed the application to vary the order
of
30 October 2013. There is no misdirection that he committed and in
the circumstances, the appeal must fail.
[17]
Order
I
propose the following order:
‘
The appeal is
dismissed with costs’
__________________
I agree
__________________
POYO
DLWATI J
VAHED J
Date
of Hearing
: 13 June 2016
Date
of Judgment
: 21
June 2016
Counsel
for Appellant
: Mr Sarjoo
Instructed
by
: N M Sithole & Associates
Counsel
for Respondent : Mr
Buthelezi
Instructed
by
: Buthelezi Incorporated
[1]
See:
Mostert v Old Mutual Life Assurance Company (SA) Ltd 2001 JDR 0681
SCA at para 20
[2]
S
36(1) The court may, upon application by any person affected hereby,
or, in cases failing under paragraph (c),
suo
motu
–
(a) rescind or vary
any judgment granted by in the absence of the person against whim
that judgement was granted,
(b) rescind or vary
any judgment granted by it which was void
ab origine
or was
obtained by fraud or by mistake common to the parties;
(c) correct patent
errors in any judgment on respect of which no appeal is pending;
(d) rescind or vary any judgement in respect of which
no appeal applies.
[3]
See: Quatermark Investments
(PTY) Ltd v Mkhwanazi ans another
2014 (3) SA 96
SCA at para 20