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[2016] ZAGPPHC 968
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Erasmus v Erasmus NO (54914/2014) [2016] ZAGPPHC 968 (24 November 2016)
REPUBLIC
OF SOUTH AFRICA
OFFICE
OF THE CHIEF JUSTICE
(GAUTENG
DIVISION. PRETORIA)
CASE
NO: 54914/2014
MARIA
MADALENA GONSALVES ERASMUS
Plaintiff
and
GERALDEAN
JAYDE
ERASMUS N.O.
Defendant
JUDGMENT
Fourie
AJ
1.
The
applicant for leave to appeal was the plaintiff in a trial that came
before me
as a stated case.
2.
The issue was whether the defendant, as
executrix in the deceased estate of the plaintiffs late husband, is
bound by the commencement
values set out in the antenuptial contract
concluded by the plaintiff and her late husband. The defendant is
also the sole heir
to the estate, and was cited as defendant in both
these capacities.
3.
I found in favour of the defendant and the
plaintiff subsequently gave notice of her intention to apply for
leave to appeal to the
full bench of the Gauteng on of the High Court
of South Africa,
alternatively
the
Supreme Court of Appeal, against my judgment. I assume this to be the
whole of my judgment.
4.
The first ground upon which the application
is based is that there are conflicting decisions in relation to the
question of law
that I was called upon to determine. The cases are
Olivier v Olivier,
1998
(1) SA 550
(D),
Jones
&
Another v Beatty NO & Others,
1998
(3) SA 1097
(T), and
Thomas v Thomas,
1999 JDR 0296 (NC), all of which I
discussed in my
judgment.
5.
That the cases may be conflicting is true,
but it is somewhat of a distinction without a
difference.
6.
In
Olivier,
a
divorce, the husband pleaded that the commencement values in the
antenuptial contract were incorrect, that in terms of section
6(3)
these were
prima facie
proof
only, and that the contrary may therefore be proven. While the court
expressed the
obiter
view
that section 6(3) does apply to an antenuptial contract reflecting
commencement values, and not only to a so-called statement
of values,
the court held that only third parties, and not the parties to the
antenuptial contract, can rely on that provision.
The parties to the
antenuptial contract, on the other hand, can attack the commencement
values reflected therein on the common
law grounds of
misrepresentation, duress, undue influence, etc.
7.
In
Jones,
the
commencement values were disputed by the heirs in a deceased estate,
on the ground that they were incorrect, and exception was
taken,
inter alia,
that
it was not open to third parties, such as the plaintiffs, to question
the accuracy of the commencement values. Although the
court held that
as the parties had declared commencement values in their antenuptial
contract, section 6(3) had no application,
the plaintiffs were not
non-suited as at common law the plaintiffs, as heirs, would be
entitled to challenge the commencement values
in the antenuptial
contract and the parol evidence rule does not apply to them as
strangers to the contract. See also
Traub
v Barclays National Bank Ltd; Kalk v Barclays National Bank Ltd,
1983
(3) SA 619
(A).
8.
In
Thomas,
also a divorce, the court decided on
two issues relevant hereto.
In
the first instance, the Court held that section 6(3) applies to the
commencement values in both an antenuptial contract and in
a
so-called statement, and the declared commencement values in both
documents are
prima facie
proof thereof. Further, that the
spouses as well as third parties, would be free to prove the actual
value (see page 14.)
9.
From the aforegoing summary it is clear
that in each one of these cases the Court recognised the right of
third parties to challenge
the commencement
values
recorded in antenuptial contracts. The difference lies in whether
such party is entitled to rely on the provisions of section
6(3) in
so doing.
10.
I found the defendant, who is the executor
of the deceased estate and the sole heir thereto, to be a third party
to the antenuptial
contract. That this finding is incorrect, did not
form a ground of appeal, but it was argued by Mr Hitchings that I
erred in so
doing. Apart from what I said in my judgment in respect
of the position of the executor, Combrinck J made it clear in
Olivier
that an heir and a creditor are
considered third or interested parties. It was not in dispute in
Jones.
In
fact, what would constitute a third or interested party was not in
issue in any of the
cases.
11.
Even if I was wrong in aligning myself with
Thomas
regarding
the application of s 6(3), as I did, this does not avail the
plaintiff. As the defendant is a third party to the antenuptial
contract, and did not confine herself to reliance on s 6(3) (nor
indeed even refer to the section), it matters not which decision
is
correct. The outcome remains the same. This ground cannot succeed.
12.
The second ground of appeal is that I erred
in finding that the defendant had in her pleadings made out a case to
attack the commencement
values recorded in the antenuptial contract.
There is no merit in this. In
Jones
(as
in
Olivier)
the
plaintiff pleaded merely that the commencement values were
"incorrecf'.
Judge
MacArthur, who had been called upon to consider
an
objection
to a proposed amendment
to
the
pleadings on the basis that the allegation did not disclose a cause
of action as there were no allegations indicating why the
commencement value is incorrect, found that the allegation did
disclose a cause of action, even if the particulars pleaded were
scanty and could be considered vague.
13.
I have already dealt with the third ground
advanced by the plaintiff. The defendant is not bound by the
commencement values. Nothing
further need be said.
14.
The
fourth ground is that there are reasonable prospects that another
court may reach a different decision to that made by this
court. That
may be so, but that is no longer the criteria for the grant of leave
to appeal. In terms of
section 17
of the
Superior
Courts Act,
10
of 2013
, leave to appeal may only be given where the judge or judges
concerned are of the opinion that the appeal would have a reasonable
prospect of
success.
15.
For
the reasons already stated, I am of the view that the appeal does not
have any prospects of success.
16.
16.
The application for leave to
appeal is dismissed with costs.
______________________________
HR FOURIE
ACTING JUDGE OF THE
HIGH COURT