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[2016] ZAGPPHC 779
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MMGE v GJE N.O (54914/2014) [2016] ZAGPPHC 779 (26 August 2016)
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IN
THE
REPUBLIC
OF
SOUTH
AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NO: 54914/2014
DATE:
26/8/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
M
M G
E
…........
Plaintiff
and
G
J E
N.O.
.
Defendant
JUDGMENT
Fourie
AJ
1.This matter came
before the court
as
a
stated case in terms of Rule 33(1) of the Uniform
Rules of Court.
2.
The defendant is the nominated executrix in the estate of her late
father, [G J E]
("the
deceased"). The deceased was
married to the plaintiff, out of community of property subject to the
accrual system as intended
by section 3 of the Matrimonial Property
Act, 88 of 1984
("the Act' ).
The marriage was
dissolved by the death of the deceased.
3.
The plaintiff instituted action against the defendant wherein she
claimed,
inter
alia,
an order for the immediate
division of the accrual
"concerned"
and an order
that the defendant includes the plaintiff's accrual claim in the
final liquidation and distribution account and makes
payment of such
accrual to which the plaintiff is entitled in terms of the Act. To
this end, the plaintiff pleaded in paragraph
6 of the particulars of
claim that:
"The
accrual
of the plaintiff's
estates
smaller
than
the
accrual
of
the deceased's
estate
and consequently, by virtue of the
provisions
of section
3 of the Act, the plaintiff
’s
entitled
to an amount equal to half of the
difference between
the accrual
of the
respective
estates
of the parties, which amount
s
to be
calculated in
the manner
provided
for in terms of the provisions
of
sections 4 and 5 of the Act."
4.
In answer to this the defendant pleaded as follows in paragraph
4.2:
"4.2.1.
the declared net value of the parties' respective
estates as
recorded in the (antenuptial contract) are incorrect;
4.2.2.
the defendant was not
a
party to the (antenuptial
contract) and is not bound thereto;
and
4.2.3.
the calculation of any accrual, if it is found that the
plaintiff has
a
claim in terms of section 3 of the Act, which
is
denied, should be determined having regard to the
correct commencement values of the respective estates at the
time of the conclusion of the marriage between the
parties."
5.
The parties agreed that at the hearing of the matter, the
Court would deal only with the legal principle raised by the
defendant
in paragraph 4.2 of her plea in regard to whether the
executrix is bound by the
commencement
values set out in the
antenuptial contract.
6.
The parties further agreed to appoint experts to determine the
accrual according to the method proposed by the plaintiff (being the
declared values), as well as in accordance with the method proposed
by the defendant (being the determined values). Such experts
have
been appointed, however, counsel informed me that they had not yet
been able to make any determination. This has no bearing
on the
question I am required to consider.
7.
Clause 5 of the antenuptial contract provides as follows:
"That
for the purposes of proof of the nett value of their respective
estates at the commencement of the intended marriage
the intended
spouses declared the nett value of their respective estates to be as
follows:
That
of [G J E ] 3 401
To
be 120.00
Consisting
of:
1
Sectional Scheme Unit
Situated
at Unit [E...] SS Dolphin 4, Marine Drive,
Milnerton,
Western Cape
....................
R 450
000.00
Less
outstanding (Bond)
.....................
R
340 000.00
......................
R 110
000.00
2
Sectional Scheme Unit
Situated
at Unit [1…] SS Sabuti,
Simbithi,
KwaZulu-Natal
.....................
R2 900
000.00
Less
outstanding (Bond).
....................
R
0.00
..............................
R 2
900 000.00
3
Immovable
property situated
at
[1…]
Drennan Drive, Lonehi/1,
Gauteng
............................................
R
390 000.00
Less
outstanding (Bond)
..................
R
0.00
.......................
R 390 000.00
4
50% share in
Immovable
Property
situated at Estate
No.
[1…],
Helderfontein
.........................
R
2
240.00
..............
R
1
120.00
TOTAL
R 3 401 120.00
That
of
[M M G C]
To
be
…...
R 1 120.00
Consisting
of:
1
50% Share
in
Immovable Property situated at Estate No.[1…],
Helderfontein
............................
R
1 120.00
................
R 1 120.00
TOTAL
..................................................................................
R
1 120.00"
8.
It is common cause that the value accorded to the
Helderfontein property is incorrect and that the antenuptial contract
should be
rectified to reflect a total value of R 2 240 000.00.
9.
Accordingly, the commencement values of the spouses'
respective estates, as reflected in the antenuptial contract, and as
rectified
as aforesaid, should be the following:
9.1.
The deceased - R 4 520 000.00;
9.2.
The plaintiff - R 1 120 000.00.
10.
These will be referred to as the rectified declared
commencement values.
11.
The parties have different views as to what the commencement
values will amount to, should the defendant not be bound to the
rectified
declared values. These will be referred to as the factual
commencement values. Suffice to say there is a significant difference
but this will be resolved by the experts appointed for that purpose,
if necessary.
12.
The plaintiff seeks an order that the calculation of any
accrual in terms of section 3 of the Act be determined having regard
to
the rectified declared commencement values of the respective
estates.
13.
The
defendant seeks an order that the calculation of any accrual in terms
of section 3 of the Act be determined having regard to
the factual
commencement values of the respective estates at the time of the
conclusion of the marriage between the plaintiff and
the deceased,
such values to be agreed or determined.
14.
Section 6 of the Act is relevant:
14.1.
Ss 6(1) provides that
"(w)here
a
party to an intended
marriage
does
not for the purpose of proof of the net value of
his
estate
at
the commencement of his marriage
declare that value in the
antenuptial contract
concerned, he may for such purpose declare that
value
before the marriage
is
entered into or within six months
thereafter
in
a
statement, which shall be signed by the other party, and cause the
statement
to be attested
by
a
notary
and
filed
with
the copy
of the antenuptial contract of the
parties in the
protocol of the notary before
whom
the
antenuptial
contract
was
executed."
14.2.
In terms of ss 6(3),
"(a)n antenuptial contract contemplated
in
ss
(1)
...
or
a
statement
signed
and
attested
in
terms
of
ss (1)
... ,
serves
as
prima facie
proof
of the nett value of the
estate
of
the spouse
concerned
at
the
commencement of
his
marriage".
15.
This subsection has not received much attention but has been
considered in the judgments that I will refer to below.
16.
The thrust of the argument of Mr Grabler, who appeared for the
defendant, is that the defendant, as executor and heir, was not party
to the conclusion of the antenuptial contract and that she is for
purposes thereof, a third party. She is accordingly not bound
to
accept the rectified declared commencement values as correct. For
this contention he relied on the following authorities.
17.
In
Olivier v Olivier,
1998 (1) SA 550
(D), the
defendant contended in a divorce action that the declared
commencement value of his estate only served as
prima facie
proof
thereof and that he should be allowed to prove and use the correct
value in the determination of the accrual.
17.1.
The first issue was whether ss 6(3) pertained to an
antenuptial contract. The court concluded that the words
"contemplated in
ss
(1)"
with reference to
the antenuptial contract, were inserted
per incuriam. "(l)f
a
statement made in terms of
ss
(1) signed by the other party
and
attested
to by
a
notary
serves as
prima
facie
proof
of the
nett
value of the
estate
of
a
party, then
so
too
should an antenuptial
contract in which the value of
the
estates is set
out,
serve as
such
proof."
17.2.
The Court was however of the view that ss 6(3) only applies to
a third party who wishes to challenge the commencement values, and
does not apply to the spouses. Third parties with an interest in the
initial value of the estates of the parties would be heirs
and
creditors at the dissolution of the marriage. Where the parties had
contracted with one another that the nett value of their
respective
estates would be nil, the written document is conclusive proof of the
terms of their agreement and it can only be attacked
on the
recognised grounds of misrepresentation, duress etc; rectification
could be sought if the contract did not correctly reflect
the
agreement due to common error.
17.3.
The purpose of agreeing the nett asset value of the respective
parties in an antenuptial contract is to have certainty when effect
has to be given to the accrual system, and the Court questioned why
the Legislature would wish to introduce uncertainty. In this
regard
the Court held that the common law was not altered by the provisions
of the Act and the parties thereto are accordingly
bound by the
provisions of the antenuptial contract.
17.4.
The defendant was accordingly held to be bound by the
provisions of the antenuptial agreement that he had concluded.
18.
In this Division, and in
Jones & Another v Beatty NO &
Others,
1998 (3) SA 1097
(T), the plaintiffs, who were heirs in a
deceased estate, challenged the amount of the accrual in the
deceased's estate, contending
that the commencement value was
incorrect.
18.1.
Although the learned judge was referred to the recent
Olivier
decision, he declined to follow it on the basis that ss 6(3) was
not applicable as the parties had declared commencement values.
18.2.
However,
"at common law the plaintiffs are entitled to
challenge
the computation of the account and the
commencement value of
the estate in the antenuptial
contract. The parole evidence rule relating
to
extrinsic evidence, being irrelevant to
challenge
a
written agreement, does not apply to strangers or third parties to
the agreement."
See 11018-C. On that basis the
plaintiffs - as heirs and not parties to the contract - were entitled
to lead evidence to challenge
the commencement values.
19.
Shortly thereafter, having carefully considered both
Olivier
and
Jones,
the Court came to a different conclusion
in
Thomas v Thomas,
[1999] 3 All SA 192
(NC).
19.1.
Buys J convincingly motivates why ss 6(3) of the Act is
applicable both to the nett values stipulated in the antenuptial
contract,
as well as in the ss 6(1) statement, and why the declared
nett values in both these documents serve as
prima facie
proof
only.
19.2.
The Court rejected the argument that the spouses are bound to
the declared values and can only challenge these values on the basis
of recognised common law grounds, but that third parties are not.
"Ek
het reeds probeer aantoon dat die bedoeling van die Wetgewer
was
om
te bepaal dat die verklaarde netto waarde in
die
huweliksvoorwaarde kontrak sal
dien
as
bewys van
sodanige waarde wanneer die aanwas bereken word. Die Wetgewer
tref geen
onderskeid, vir die doeleindes van hierdie
berekening, of dit
geskied
op aandrang van
een van
die
gades
-
soos
dit in die
praktyk meestal
sal gebeur
-
of
op aandrang van derdes nie. Wanneer die Wet
dan
bepaal dat die verklaarde netto waardes slegs
prima
facie
bewys
is van sodanige
waardes het dit volgens my oordeel betrekking op enige belanghebbende
by die berekening van die aanwas: die gades
sowel as derdes. As die
Wetgewer dit nie so bedoe/ het nie, sou ek
verwag het
dat
hy dit
uitdruiklik sou
gese
het."
19.3.
The Court concluded that the legislator had expressly altered
the common law in this respect and he said, for good reason - there
may be grounds upon which the declared commencement values may be
challenged, where the common law remedies are of no assistance
and
rectification does not apply. The learned judge also referred to the
situation arising where one spouse dies and the other
spouse and
third parties are heirs. The third parties would be able to challenge
the commencement values, but the surviving spouse
not. This result is
unfair and could not have been intended by the legislator.
19.4.
Accordingly the Court held that the spouses, as well as third
parties, are free to challenge the declared commencement values by
tendering evidence of the actual values.
20.
I must align myself with the reasoning of Buys J in
Thomas.
It does not, with respect, appear that the matters were properly
ventilated in
Jones,
and the learned judge did not have the
benefit of the comprehensive judgment of Buys J. For this reason I am
of the view that the
stated commencement values in an antenuptial
contract may be challenged, and that they may be challenged by both
the other spouse,
as well as third parties. See also
The law of
divorce and dissolution of life partnerships in South Africa,
Heaton,
page 64.
21.
I now turn to consider the plaintiff's arguments.
22.
In his heads of argument, Mr Hitchings, who appeared for the
plaintiff, contended that the defendant, as executor in the deceased
estate, is not a third party. In this regard he relied on
Ex
parte
Spinazze
&
Another
NNO,
1985 (3) SA 650
(A) at 666:
"Where one of the parties to
the (antenuptial)
contract
has
died,
then obviously
the
contract
would be operative
as
between
the estate of the deceased party and the surviving party or
parties. It would determine,
inter
p
artes.
their property rights."
23.
On this basis he argued that the executrix is not a third
party to the antenuptial agreement and has simply stepped into the
shoes
of the deceased. Furthermore, Chapter 1 of the Act makes it
clear that a claim for accrual in a marriage terminated by death lies
against the estate. and the estate is represented by the executrix.
The purpose of the Act would be stultified should the executrix
be
free to ignore the declared values.
24.
It may be so that the executor assumes certain obligations
incurred by the deceased in his lifetime. The intention or knowledge
of the deceased when concluding the agreement, cannot, however, be
attributed to the executor. The executor and the deceased are
separate
personae.
The whole estate, consisting of an
aggregate of assets and obligations, vests in the executor and she is
required to administer
and distribute it according to the law.
SA
General Electric Co. (Pty) Ltd v Sharfman & Others NNO,
1981
(1) SA 592
(YV) at 597-598,
Van den Bergh v Coetzee,
2001 (4)
SA 93
{T). In the latter case, the Court held that the wrong-doings
of the deceased cannot by operation of law be imputed to the
executor.
Where it appeared that the deceased had knowledge of latent
defects in his property, which was sold by the executor after his
death,
that knowledge cannot by law be imputed to the executor who
was unaware of the defects. An executor does not succeed the person
of the deceased. Even if she does, for the reasons I have explained,
in my view both the surviving spouse and third parties may
challenge
the stated commencement values provided they have reason to do so.
25.
The references made to third parties in the heads of argument
do not take the matter any further. In the context of the authorities
referred to by Mr Hitchings the third parties had established rights
as against the estate of one or other of the spouses. They
are not
the party disputing the validity or correctness of the antenuptial
contract, but are parties may potentially be affected
by the result
of such a dispute. In this case, it is the third party that is
disputing the content of the contract pleaded that
she is not bound
to the declared commencement values as she is a third party. She did
not say that the declared commencement values
are wrong. This is not
correct. The defendant pleaded in the first instance that the
declared net value of the parties' respective
estates as recorded in
the antenuptial contract are incorrect and in the second instance,
that she was not a party to the antenuptial
contract and is not bound
thereto.
27.
It may be that the allegations lack detail, but on the other hand,
the plaintiff did not replicate in order to refute the allegation
that the declared values were incorrect.
28.
I therefore find that the defendant is entitled to challenge the
rectified commencement values, and that on the pleadings, she
has
made out a case for doing so.
29.
The following order is made:
29.1.
The calculation of any accrual in terms of
section 3
of the
Matrimonial Property Act, 88 of 1984
, is to be determined having
regard to the factual commencement values of the respective estates
at the time of the conclusion of
the marriage between the plaintiff
and the deceased, Garth Joseph Erasmus, such values to be agreed or
determined.
29.2.
The balance of the issues between the parties are separated in terms
of rule 33(4) of the Uniform Rules of Court and postponed
sine
die;
29.3.
The plaintiff is ordered to pay the costs of the action to date of
this order.
H
R FOURIE
ACTING
JUDGE OF THE HIGH COURT
FOR
THE PLAINTIFF ADVOCATE: BD HITCHINGS
ATIORNEYS:
VAN WYK VAN DEVENTER INC, SANDTON
FOR
THE DEFENDANT ADVOCATE: JF GROBLER
ATIORNEYS:
VAN DER HOF INC, PRETORIA