CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 293/22
In the matter between:
D H B Applicant
and
C S B Respondent
Neutral citation: D H B v C S B [2024] ZACC 9
Coram: Zondo CJ, Maya DCJ, Kollapen J, Mathopo J, Rogers J,
Schippers AJ, Theron J, Tshiqi J and Van Zyl AJ
Judgments: Theron J (majority): [1] to [63]
Schippers AJ (dissent): [64] to [114]
Heard on: 12 September 2023
Decided on: 22 May 2024
Summary: Prenuptial agreement — providing for maintenance — pleaded as
unspecified donation — Divorce Act 70 of 1979 — section 7 —
not triggered
Prenuptial agreement — providing for maintenance — valid and
enforceable vis -à-vis the antenuptial contract — not chang e
anything stante matrimonio
2
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria):
1. Leave to appeal is granted.
2. The appeal is dismissed with costs.
JUDGMENT
THERON J (Kollapen J, Mathopo J, Rogers J, Tshiqi J and Van Zyl AJ concurring):
Introduction
[1] This application for leave to appeal relates to the enforceability of a prenuptial
agreement which provides for, amongst other things, maintenance upon the dissolution
of marriage.
Background and litigation history
[2] In anticipation of th eir marriage, the applicant, Mr D H B, and the respondent,
Mrs C S B, concluded an antenuptial contract, which declared their marriage to be out
of community of property with the exclusion of the a ccrual system. The
antenuptial contract was registered on 22 January 2015.
[3] On 20 February 2015, the parties concluded a further agreement
(prenuptial agreement). The prenuptial agreement , which was written in Afrikaans,
provided that: the parties’ marriage shall be in terms of their antenuptial contract (out
of community of property with the exclusion of the accrual system ); the
THERON J
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prenuptial agreement is to be read together with the antenuptial contract; and upon the
dissolution of their marriage, by either divorce or death, the applicant agreed to donate
to the respondent a residential dwelling to the value of R1 500 000, a motor vehicle to
the value of R250 000, monthly contributions in respect of the respondent’s medical aid
membership, the payment of the premiums of a life policy during the respondent ’s
lifetime and R20 000 per month in respect of the respondent ’s life-long spousal
maintenance (“lewenslange onderhoud tussen gades” in the Afrikaans text).
[4] The parties were married o n 19 May 2015. On 8 August 2018, the applicant
instituted divorce proceedings against the respondent in t he Regional Court for the
Regional Division of Gauteng held at Springs (Regional Court). These proceedings are
pending. In defending the action, the respondent filed a counter -claim in which she
sought enforcement of the terms of the prenuptial agreement.
[5] The applicant filed a plea to the counter-claim and admitted having executed the
prenuptial agreement, but denied that its terms were enforceable, given the existence of
the antenuptial contract. The applicant contended that the parties abandoned the
prenuptial agreement when their antenuptial contract was registered
(abandonment defence). Alternatively, the applicant contended , in the event that the
Regional Court was to find the prenuptial agreement enforceable, that the respondent
had made herself guilty of gross ingratitude and he was entitled to revoke the donation
(ingratitude defence).
[6] The parties requested that the Regional Court separately adjudicate the issue of
whether the prenuptial agreement was enforceable. The enforceability of the prenuptial
agreement forms the basis of the proceedings before us.
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Litigation history
Regional Court
[7] In the Regional Court, the parties argued the following legal point: whether the
prenuptial agreement was valid and enforceable vis -à-vis the antenuptial contract, that
is, whether the prenuptial agreement could co -exist with the antenuptial contract
(incompatibility issue).
[8] The Regional Court found that the prenuptial agreement was enforceable and
held that it should be read together with the antenuptial contract. In reaching this
conclusion, t he Regional Court relied on the principles of pacta sunt servanda
(agreements must be kept) and freedom of contract.
High Court
[9] The applicant appealed to the High Court of South Africa, Gauteng Division,
Pretoria (High Court). Before the High Court, the applicant advanced two arguments.
First, the antenuptial contract and the prenuptial agreement have materially different
terms and cannot be read together. To read the agreements together, according to the
applicant, is tantamount to introducing an amendment of the antenuptial contract via
the back door. Second, the prenuptial agreement was unenforceable because it ousted
the divorce court’s discretion as provided for in section 7 of the Divorce Act 1
(ousting issue).
1 70 of 1979. Section 7 of the Divorce Act reads in relevant part:
“(1) A court granting a decree of divorce may in accordance with a written agreement
between the parties make an order with regard to the division of the assets of the parties
or the payment of maintenance by the one party to the other.
(2) In the absence of an order made in terms of subsection (1) with regard to the payment
of maintenance by the one party to the other, the court may, having regard to the
existing or prospective means of each of the parties, their respective earning capacities,
financial needs and obligations, the age of each of the parties, the duration of the
marriage, the standard of living of the parties prior to the divorce, their conduct in so
far as it may be relevant to the break -down of the marriage, an order in terms of
subsection (3) and any other factor which in the opinion of the court should be taken
into account, make an order which the court finds just in respect of the payment of
maintenance by the one party to the other for any period until the death or remarriag e
of the party in whose favour the order is given, whichever event may first occur.”
(Emphasis added.)
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[10] The respondent repe ated the submissions she advanced in the Regional Court
and argued that she merely sought specific performance of a donation agreement.
[11] The High Court set aside the decision of the Regional Court and held that the
prenuptial agreement was unenforceable. Relying on S T v C T,2 the High Court
reasoned that to hold that the prenuptial agreement was enforceable mean t that the
respondent would receive life -long maintenance couched as a donation where no
agreement existed in terms of section 7(1) of the Divorce Act. This would preclude a
divorce court from exercising its discretion under section 7(2) of the Divorce Act.
[12] Further, in order to have the prenuptial agreement made an order of court, the
respondent was required to comply with the Eke factors.3 The High Court noted that a
court was required to lend its imprimatur to the agreement in order to make it
enforceable. As the prenuptial agreement did not relate to a legal issue at the time of
its making, the agreement should not be enforced. It was not concluded at a time when
divorce proceedings were pending or contemplated and was thus not in settlement of
any dispute.
[13] Lastly, the High Court held that the Regional Court’s conclusion that the
prenuptial agreement should be enforced, to honour the maxim of pacta sunt servanda,
was untenable in the face of the requirements of section 21 of the Matrimonial Property
Act4 (MPA), because the agreement introduce d terms that were contradictory to the
2 S T v C T [2018] ZASCA 73; 2018 (5) SA 479 (SCA) (S T v C T).
3 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) (Eke) at paras 25-6. In Eke,
the Constitutional Court held that when parties approach a court to make a settlement agreement an order of court,
the agreement must be competent and proper in that the agreement must: relate directly or indirectly to the dispute
between the parties; not be objectionable in that it must accord with the Constitution and the law and not be
offensive to public policy; and it must hold some practical and legitimate advantage. These are referred to as the
so-called “Eke factors”.
4 88 of 1984. Section 21(1) of the MPA provides:
“(1) A husband and wife, whether married before or after the commencement of this Act,
may jointly apply to a court for leave to change the matrimonial property system,
including the marital power, which app lies to their marriage, and the court may, if
satisfied that—
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antenuptial contract.5 The High Court held that the parties should have sought an
amendment of their antenuptial contract.6
Supreme Court of Appeal
[14] The respondent appealed to the Supreme Court of Appeal where she advanced
four arguments. First, that there was no conflict between the antenuptial contract and
the prenuptial agreement, and that they can co-exist and remain valid and enforceable
as two distinct and separate legal agreements. Second, she relied on pacta sunt
servanda and argued that her claim was of a contractual nature, based on donations in
her favour which were made by the applicant with full knowledge of the contents of the
antenuptial contract. Third, she contended that sections 7(1) and (2) of the Divorce Act
were not applicable. Fourth, relying on Odgers,7 the respondent contended that the
donation made by the applicant , in which he undertook to pay lifelong maintenance ,
was neither unusual nor impermissible.
[15] The Supreme Court of Appeal ruled in favour of the respondent.8 It held that the
two legal instrum ents could co-exist because the antenuptial contract regulated the
matrimonial regime of the parties stante matrimonio (while the marriage was in force),
whereas the prenuptial agreement had no bearing at all on the nature of the matrimonial
regime and the respective estates of the parties.9
(a) there are sound reasons for the proposed change;
(b) sufficient notice of the proposed change has been given to all the
creditors of the spouses; and
(c) no other person will be prejudiced by the proposed change,
order that such matrimonial property system shall no longer apply to their
marriage and authorise them to enter into a notarial contract by which their
future matrimonial property system is regulated on such conditions as the
court may think fit.”
5 B v B , unreported judgment of the Gauteng Division of the High Court, Pretoria , Case No A135/2020
(28 April 2021) (High Court judgment) at para 14.
6 Id.
7 Odgers v De Gersigny [2006] ZASCA 125; 2007 (2) SA 305 (SCA).
8 C B v D B [2022] ZASCA 123; 2023 (1) SA 381 (SCA) (Supreme Court of Appeal judgment) at para 7.
9 Id at para 9.
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[16] Further, the Supreme Court of Appeal held that the finding of the High Court –
that the prenuptial agreement purported to vary the antenuptial contract or the parties’
matrimonial regime contrary to section 21 of the M PA – was fundamentally flawed.10
The Supreme Court of Appeal held that the legal effect of the prenuptial agreement was
that a portion of the patrimonial consequences upon divorce or death would flow from
the prenuptial agreement and not from the matrimonial regime . T hus neither party
would have a claim against the other based on the Divorce Act or the MPA.11
[17] The Supreme Court of Appeal found that, as the parties never intended for the
prenuptial agreement to rectify or amend the antenuptial contract, section 7(1) of the
Divorce Act was not applicable, nor was A M v H M.12 The import of section 7(1) was
to confer upon a divorce court the power to make a written settlement agreement,
concluded by divorcing parties which relates to the payment of mai ntenance, an order
of court.13 The respondent did not ask for a settlement agreement to be made an order
of court under section 7(1), she merely advanced a contractual claim for specific
performance.14 The fact that the prenuptial agreement referred to a lifelong monthly
payment of “maintenance” did not render it an attempt to settle a pending divorce
action.15
[18] Further, the Supreme Court of Appeal held that the prenuptial agreement did not
fall within the ambit of the provisions of section 7(2) of the Divorce Act because that
discretion only arises when a claim is made under that section. 16 In this matter, the
respondent was not claiming maintenance under section 7(2), but simply requesting the
10 Id.
11 Id.
12 A M v H M [2020] ZACC 9; 2020 JDR 0852 (CC); 2020 (8) BCLR 903 (CC) ( A M v H M); Supreme Court of
Appeal judgment above n 8 at para 11.
13 Supreme Court of Appeal judgment above n 8 at para 11.
14 Id.
15 Id.
16 Id at para 15.
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divorce court to enforce the terms of the prenuptial agreement.17 Therefore, in the view
of the Supreme Court of Appeal, the agreement did not oust the discretion conferred on
the divorce court in terms of section 7(2).18
[19] Lastly, the Supreme Court of Appeal found, on the authority of Odgers, that the
divorce court was not under a duty to ensure that the best interests of the divorcing
parties were served during proceedings.19 Rather, “[e]verybody may bind his estate, by
contract no less firmly than by will, to pay maintenance after his death”.20
[20] The Supreme Court of Appeal replaced the High Court’s order with one
dismissing the appeal against the Regional Court’s judgment. Therefore, the
Regional Court’s judgment on the incompatibility issue was reinstated.
In this Court
Jurisdiction
[21] This matter engages our constitutional jurisdiction . It potentially raises the
question whether a prenuptial agreement purporting to regulate the patrimonial
consequences of divorce , including maintenance, is contrary to public policy and
unenforceable for the reason that it imp ermissibly ousts the jurisdiction conferred on
the divorce court in terms of section 7(2) of the Divorce Act.21
Issues
[22] The following are the main issues that arise for consideration:
17 Id.
18 Id.
19 Id at para 13.
20 Id.
21 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC).
THERON J
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(a) Was the enforceability of the prenuptial agreement in relation to
section 7(1) and (2) of the Divorce Act properly before the High Court
and the Supreme Court of Appeal?
(b) If yes, was the conclusion reached by the Supreme Court of Appeal , that
the prenuptial agreement was enforceable, correct?
The enforceability of the prenuptial agreement
[23] In the Regional Court, the respondent filed a plea and counter-claim wherein she
claimed specific performance by the applicant of his obligations in terms of the
prenuptial agreement. The applicant , in his plea to the respondent ’s counter -claim,
admitted the conclusion of the prenuptial agreement but pleaded that it was
unenforceable for the following reasons: first, because the parties concluded the
agreement under “emotional circumstances and upon the insistence” of the respondent;
and secondly, that the parties had abandoned the prenuptial agreement.
[24] The applicant further pleaded in the alternative that , if the agreement was to be
enforced, the respondent “made herself guilty of gross ingratitude and in the premise
the [applicant] was entitled to revoke the donat ions”. At the hearing of the matter in
the Regional Court, the parties agreed to argue the legal point “ whether the agreement
was valid and enforceable vis-à-vis the [antenuptial contract]”.
[25] It is important to note that the point in limine (preliminary point) was determined
solely on the pleadings. On the pleadings, it was common cause that the prenuptial
agreement was a donation. No evidence was led by either party as to the nature of the
prenuptial agreement, n or was any evidence led as to the characterisation of the
donation itself. All remaining issues in the divorce action were postponed sine die
(adjourned indefinitely) by the Regional Court.
[26] The applicant contended that the prenuptial agreement was unenforceable for the
following reasons : the respondent had not pleaded rectification of the antenuptial
contract; the parties had not followed the legally recognised means of amending their
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antenuptial contract; and the prenuptial agreement contradicted the terms of the
antenuptial contract and therefore had the effect of impermissibly varying the
antenuptial contract.
[27] The respondent’s case in the Regional Court was that the agreements should and
could be read together. Th e respondent did not seek rectification, variatio n or
amendment of the antenuptial contract, merely specific performance of the
prenuptial agreement.
[28] It is clear from the judgment of the Regional Court that the only question that
was argued before that Court was the enforceability of the prenuptial agreement on the
narrow basis set out. It is recorded in the judgment that “[a]fter extensive submissions
[made by the legal representatives acting on behalf of the parties] it was agreed that the
issue of whether the agreement was valid and enforceable vis-à-vis the [antenuptial
contract] is what was to be argued”. 22 In the Regional Court, the enforceability of the
prenuptial agreement was “attacked simply because of the existence of a registered
[antenuptial contract] concluded prior to [the prenuptial agreement] being signed by the
parties”.23 On this question the Regional Court reasoned as follows:
“It is a valid agreement that regulates what would happen in the future event taking
place and seeks to govern the patrimonial consequences of the respective parties’ debt
on divorce or death of the plaintiff. There is no legislative prerequisite prescribing that
the [prenuptial] agreement in its form concluded prior to the marriage [must] be
registered. The end result is that a portion of the patrimonial consequences of this
divorce flow from the [prenuptial] agreement and not from the marital regime and
arguably in existence stante matrimonio.”24
22 B v B, unreported judgment of the Springs Regional Court, Case No GP/SPR/RC352/2018 (21 November 2019)
(Regional Court judgment) at 3.
23 Id at 16.
24 Id.
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[29] In adjudicating the dispute, the Regional Court noted that the applicant had not
sought to attack the prenuptial agreement on the basis that it was “illegal, contrary to
the boni mores [legal convictions of the community] , incoherent or that it is uncertain
or vague and embarrassing”.
[30] The judgment goes on to deal with the impact of the prenuptial agreement on the
estates of the parties. It reasons that their estates remain separate. The judgment
continues:
“Mention is made of specific items that the [applicant] will . . . donate to her as her
exclusive property, a house . . . , a car . . . , medical aid . . . , spousal maintenance and
the [applicant] will pay the premiums on a life insurance policy as long as the
[respondent] lives. This does not suggest infringements or violations of the antenuptial
contract. Indeed, the agreement itself intends that it be read with the ant enuptial
contract and [had] the parties intended otherwise, they would . . . no doubt have made
that patently clear.”25
[31] The Regional Court held that the prenuptial agreement was enforceable and
could be read with the antenuptial contract. In concluding that the prenuptial agreement
was enforceable, it did not decide anything more than that the subsequent registration
of the antenuptial contract did not render the prenuptial agreement unenforceable. This
is because the Regional Court was not asked to decide anything else. Despite the
Regional Court not making a formal order, its judgment should be understood as
rejecting the contention that when the parties’ antenuptial contract was registered, they
abandoned their prenuptial agreement. Any other issue, including the issue of gross
ingratitude, was to stand over for later determination.
[32] The applicant thereafter appealed to the High Court against the decision of the
Regional Court. The applicant, in his amended notice of appeal, alleged that the
prenuptial agreement impermissibly amount ed to a settlement agreement entered into
25 Id at 17.
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prior to their marriage i n settlement of their divorce (that is, at a time when a divorce
was not contemplated) and, for the first time, he invoked the provisions of section 7 of
the Divorce Act. In particular, the applicant further reli ed on section 7(2) of the
Divorce Act for the contention that the prenuptial agreement purport ed to
impermissibly divest the divorce court of its discretion in regard to the determination of
spousal maintenance.
[33] The applicant raised the public policy argument for the first time in the amended
notice of appeal. He alleged that it would be contra bonos mores (against public policy)
to hold that an agreement entered into by parties, prior to their marriage, including
provision for the division of assets and for maintenance of one of the parties in the event
of divorce, was enforceable in that it ousted a divorce court’s discretion in terms of the
provisions of sections 7(1), (2) and (9) of the Divorce Act.
[34] The argument of the parties in the High Court has not been placed before this
Court. It would appear that the applicability of section 7 of the Divorce Act, as
foreshadowed in the amended notice of appeal, was considered on appeal. It is not clear
from the record on what basis this was considered and determined by the High Court.
This is not dealt with in that judgment. It was correctly recorded in the first paragraph
of that judgment that the appeal concerned an appeal in which the applicant contend ed
that the Regional Court had erred in holding that the prenuptial agreement was
enforceable and could be read together with the antenuptial contract. That this was the
sole issue before the Regional Court, and the issue before it on appeal, seems to have
subsequently escaped the High Court.
[35] The judgment of the High Court, under the heading “Discussion”, dealt at length
with the provisions of section 7 of the Divorce Act and referred to S T v C T. It then,
somewhat surprisingly, conclude d that “we are not dealing with a waiver of
maintenance [as in S T v C T], but an executory donation with terms that are
THERON J
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contradictory to those of the parties’ antenuptial contract”. 26 The judgment then went
on to find that the Regional Court had erred, in that the effect of its finding that the
prenuptial agreement was enforceable ousted the discretion of a divorce court called
upon to determine the question of maintenance in terms of section 7(2) of the
Divorce Act. The High Court reasoned thus:
“[T]he respondent will end up with an order of life long maintenance, couched as a
donation, where no agreement existed in terms of section 7(1) and in circumstances
where the court would effectively have been ousted from exercising its discretion in
terms of section 7(2) of the Divorce Act . Such a result cannot be countenanced. On
this score, the court [of first instance] erred. The ineluctable conclusion we reach is
that the [prenuptial] agreement cannot be enforced.”27
[36] The High Court held that the prenuptial agreement was not enforceable. The
reasoning of the High Court was that , if one were to uphold the agreement as
enforceable, the applicant would end up paying lifelong maintenance where no
agreement existed in terms of section 7(1) of the Divorce Act and this would oust the
discretion of the court under section 7(2). It reasoned that the court retains the statutory
power to enquire into the reasonable needs of the spouse who requires maintenance, the
existing and prospect ive means of the spouses, their ages, to mention but a few, and
make an order for the payment of maintenanc e. The Court held that “in terms of
section 7(1) and (2) [of the Divorce Act] the authority to make orders in respect of
matters such as maintenance, even where the parties have agreed, vests with the
court.”28 Reliance for this finding was placed on the decision of the Supreme Court of
Appeal in S T v C T.
[37] In addition, the High Court held that , in order for a court to lend its imprimatur
to an agreement and make it enforceable, it must, in the first place, rela te to litigation
or a legal issue between the parties at the time of its making. This was not the case with
26 High Court judgment above n 5 at para 11.
27 Id.
28 Id at para 10.
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the prenuptial agreement and on this basis alone, the agreement could not be enforced.
Reliance for this finding was placed on the decision of the Supreme Court of Appeal in
H M v A M.
[38] A further reason why the High Court found that the prenuptial agreement could
not be enforced, with reliance on the legal principle of pacta sunt servanda , is that it
would be legally untenable in the face of the requirements of section 21 of the MPA.
This was so, in the High Court’s view, because the agreement introduce d terms that
were contradictory to the antenuptial contract. Before marrying each other, and by
following the relevant provisions of the Deeds Registr ies Act,29 the parties could have
effected changes to the antenuptial contract via registration with the Registrar. The only
option for the parties to achieve what they now sought was to apply to court for an
amendment of the terms of their antenuptial contract in terms of section 21 of the MPA.
[39] The High Court judgment specifical ly made a finding that the Regional Court
erred in regard to the impact of section 7 of the Divorce Act . It is no t clear on w hat
basis it reached that finding when this was not an issue raised before the Regional Court
or determined by it. The High Court judgment is also silent on how this issue came to
be raised on appeal for the first time. Further, it also fails to deal with any prejudice to
the parties.
[40] It is important to revisit the pleadings in this matter. In her counter-claim, the
respondent specifically pleaded that the prenuptial agreement was a donation agreement
and that one of its material terms was that the applicant would, on the dissolution of the
marriage, whether by death or divorce, donate certain property to her. In his plea to the
counter-claim, the applicant admitted “the terms of the agreement as pleaded” by the
respondent.
29 47 of 1937.
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[41] On the ple adings, the applicant thus clearly admitted t hat the agreement was a
donation. In his plea he went on to plead the abandonment and ingratitude defences
previously mentioned.
[42] I stress, that on the pleadings, it was common cause that the prenuptial agreement
was a donation agreement. Furthermore, on the pleadings, there remains a live issue
between the parties whether the applicant is entitled to revoke the donation agreement
on the basis that the respondent was guilty of gross ingratitude . On appe al, the
High Court was not entitled to decide a dispute that was raised for the first time on
appeal. Once it is accepted that, on the pleadings as they stood, the prenuptial agreement
is a donation agreement, and as the pleadings do not tell us whether t he agreement is a
pure or a remuneratory donation, neither was any evidence led on this aspect, it cannot
be said with any degree of certainty that the donation fell within the ambit of section 7
of the Divorce Act.
[43] The general rule is that a court should only decide issues before it, as pleaded by
the parties. In Fischer,30 the Supreme Court of Appeal said:
“[I]t it is for the parties, either in the pleadings or affidavits (which serve the function
of both pleadings and evidence), to set ou t and define the nature of the dispute, and it
is for the court to adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human rights guaranteed by our Constitution,
for ‘it is impermissible for a party to rely on a constitutional complaint that was not
pleaded’. There are cases where the parties may expand those issues by the way in
which they conduct the proceedings. There may also be instances where the court may
mero motu [of its own accord] raise a question of law that emerges fully from the
evidence and is necessary for the decision of the case. That is subject to the proviso
that no prejudice will be caused to any party by its being decided. Beyond that it is for
the parties to identify the disp ute and for the court to determine that dispute and that
dispute alone.”31
30 Fischer v Ramahlele [2014] ZASCA 88; 2014 (4) SA 614 (SCA).
31 Id at para 13, affirmed by this Court in Public Protector v South African Reserve Bank [2019] ZACC 29; 2019
(6) SA 253 (CC); 2019 (9) BCLR 1113 (CC) at para 234.
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[44] The purpose of pleadings is to define the issues for the other party and for the
court. The court is called upon to adjudicate the disputes that arise from the pleadings
and those disputes alone.32 There are instances where the court may mero motu raise a
question of law that emerges fully from the evidence and which is necessary for the
determination of the matter, provided its consideration on appeal involves no unfairness
to the other party against whom it is directed.33 It is however impermissible for a court
to decide issues falling outside the pleadings, without determining issues of fairness and
prejudice.34 It is impermissible for a party to plead a particular case and seek to establish
a different case at the trial.35
[45] This principle i s equally applicable, and perhap s more so, to appeals. A party
should generally not be allowed to argue new issues on appeal that were not raised or
considered by the lower court. There are exc eptions and circumstances when a party
may be allowed to rely on an issue which was not covered in the pleadings. In Slabbert,
the Supreme Court of Appeal articulated these circumstances:
“This occurs where the issue in question has been canvassed fully by both sides at the
trial. In South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd, this court
said: ‘However, the absence of such an averment in the pleadings would not necessarily
be fatal if the point was fully canvassed in evidence. This means fully canvassed by
both sides in the sense that the court was expected to pronounce upon it as an issue.’”36
[46] This Court, in Notyawa,37 expressed its disapproval of a litigant changing its case
as the matter proceeded through the various courts. It said:
32 Molusi v Voges N.O. [2016] ZACC 6; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC) at paras 27-8.
33 Id.
34 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) at paras 11-2.
35 Id.
36 Id.
37 Notyawa v Makana Municipality [2019] ZACC 43; 2020 (2) BCLR 136 (CC); (2020) 41 ILJ 1069 (CC).
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“Before us this finding was not challenged, but the applicant changed tack. The
consequential relief was no longer sought, but he submitted that a live controversy
between the parties remained. This related to what further consequential remedy, in
the form of a claim for damages, might be available to the applicant. This would be
pursued in different proceedings.
This change in strategy cannot avail the applicant, not least because the point is being
raised for the first time in this Court. There was nothing to prevent the applicant from
seeking an amendment to the relief he sought in the High Court . Yet there is no
explanation why he did not do so, nor why this Court should do so as a court of first
instance. That this should not readily be countenanced was recently re-affirmed by this
Court in Tiekiedraai. There is no reason to do so here.”38 (Emphasis added.)
[47] The question of unfairness and prejudice must be considered where a party raises
an issue for the first tim e on appeal . What might be “unfair” was considered by this
Court in Barkhuizen, albeit in a slightly different context, where the Court noted that:
“Unfairness may arise where, for example, a party would not have agreed on material
facts, or on only those facts stated in the agreed statement of facts had the party been
aware that there were other legal issues involved. It would similarly be unfair to the
other party if the law point and all its ramifications were not canvassed and investigated
at trial.”39
[48] It also noted that:
“The mere fact that a point of law is raised for the first time on appeal is not in itself
sufficient reason for refusing to consider it. If the point is covered by the pleadings,
and if its consideration on appeal involves no unfairness to the other pa rty against
whom it is directed, this Court may in the exercise of its discretion consider the point.”40
[49] An appeal court can deal with an issue that was not raised in the lower courts
and not considered by the lower courts. However, this can only be done in exceptional
38 Id at paras 59-60
39 Barkhuizen above n 21 at para 39.
40 Id.
THERON J
18
circumstances.41 A court will not entertain a new issue on appeal where it causes
prejudice or unfairness to the other party.
[50] In the matter before this Court, the issues expanded from what was originally
before the Regional C ourt. The issu e before the Regional Court was whether the
prenuptial agreement was enforceable vis -à-vis the antenuptial contract. This then
morphed into questions about section 7 of the Divorce Act and public policy before the
High Court, the Supreme Court of Appeal and in oral argument before this Court.
[51] The Supreme Court of Appeal in Fischer noted that although parties are
generally bound by their pleadings, there are cases where parties may expand those
issues by the way they conduct proceedings. This provides an exception to the rule that
parties are generally bound by their pleadings. However, in my view, the applicant did
not conduct himself in such a way to suggest that he wanted to challenge the nature of
the prenuptial agreement. As mentioned, before the Regional Court he argued two
points, namely that the agreement was concluded under emotional circumstances and
further that the parties, by their conduct, had abandoned the prenuptial agreement.
[52] If the applicant had intended to raise the issue of the nature of the prenuptial
agreement, he would have led evidence in regard thereto or amended his pleadings.
Furthermore, the lower courts would have dealt with this issue sufficiently and allowed
for its proper ventilation. A failure to do so by both the parties and the lower courts has
meant that it would be prejudicial and improper for this Court to determine a factual
issue, without evidence, for the first time on appeal. In Naude, the Supreme Court of
Appeal said “[i]t has often been held that it is open to a party to raise a new point of law
on appeal for the first time if it involves no unfairness to the other party and raises no
new factual issues”.42
41 A M v H M above n 12 at para 38.
42 Naude v Fraser [1998] ZASCA 56; 1998 (4) SA 539 (SCA) at 558; Paddock Motors (Pty) Ltd v Igesund
1976 (3) SA 16 (A) at 24BG (Paddock Motors); and Bank of Lisbon and South Africa Ltd v The Master 1987 (1)
SA 276 (A) at 290EI.
THERON J
19
[53] In any event, and if it can be said that the ousting issue arose on the pleadings,
the expansion of the issues was impermissible for a number of reasons. First, the issues
had not been properly covered by the pleadings. Secondly, and crucially, the question
of unfairness or prejudice was not considered by the High Court or the Supreme Court
of Appeal. Thirdly, a s mentioned, the matter was presented as a stated case in the
Regional Court. The respondent did not have an opportunity to present evidence as to
the facts and circumstances sur rounding the conclusion of the prenuptial agreement.
Such evidence may have been relevant to the question whether the agreement was a
donation that fell outside the ambit of section 7 of the Divorce Act. Although neither
party raised the question of prejudice, a court is enjoined to consider this question in
determining whether an issue can be raised for the first time on appeal. 43 Fourthly, no
reason has been advanced by the applicant as to why he could not amend his pleadings.
Fifthly, both the High Co urt and the Supreme Court of Appeal failed to exercise their
discretion as to whether they should consider the new issue on appeal. It would thus
not be in the interests of justice to grant leave to appeal on the ousting issue.
[54] It is striking that neither the High Court nor the Supreme Court of Appeal seemed
to be aware of the fact that they had widened the pleadings. In the circumstances, both
courts failed to exercise their discretion in order to determine whether, despite the issue
being raised for the first time on appeal, it was appropriate to consider the point. This
failure is fatal.
43 In Quartermark Investments (Pty) Ltd v Mkhwanazi [2013] ZASCA 150; 2014 (3) SA 96 (SCA), the Court said
the following at para 20:
“In considering the role of the court, it is appropriate to have regard to the well-known dictum
of Curlewis JA in R v Hepworth to the effect that a criminal trial is not a game and a judge’s
position is not merely that of an umpire to ensure that the rules of the game are observed by
both sides. The learned judge added that a ‘judge is an administrator of justice’ who has to see
that justice is done. While these remarks were made in the context of a criminal trial they are
equally applicable in civil proceedings and in my view, accord with the principle of legality.
The essential function of an appeal court is to determine whether the court below came to a
correct conclusion. For this reason the raising of a new point of law on appeal is not precluded,
provided the point is covered by the pleadings and its consideration on app eal involves no
unfairness to the party against whom it is directed. In fact, in such a situation the appeal court
is bound to deal with it as to ignore it may ‘amount to the confirmation by it of a decision clearly
wrong’, and not performing its essential function.”
THERON J
20
[55] In Solidarity obo Barnard,44 the respondent sought to raise a different and new
cause of action before this Court. Jafta J wrote a separate concurring judgment where
he set out additional reasons for not deciding the cause of action. He noted that allowing
a party to raise a new issue on appeal is a matter of discretion and should only be allowed
where the new “cause of action was foreshadowed by the pleadings and established by
facts on record ”.45 Had the High Court and the Supreme Court of Appeal exercised
their discretion they may well have refused to consider it, having regard to the
circumstances of the matter, namely : that the issue was not covered by the pleadings ;
that the matter had been argued as a stated case ; that the applicant had advanced no
reason why he had not amended his pleadings ; and the potential unfairness to the
respondent.
[56] The matter under considerat ion is, on the pleadings, a n unspecified donation
agreement and thus does not trigger section 7 of the Divorce Act. I therefore conclude
that the ousting issue is not properly before this Court. If evidence had been led as to
the nature of the donation, the ousting issue could possibly have been considered.
Can the prenuptial agreement and the antenuptial contract be read together?
[57] On the question that was before the Regional Court, the Supreme Court of
Appeal held that, having had regard to the definition and purpose, including the primary
objective of the two legal instruments, these instruments could co-exist. This is because
the antenuptial contract regulated the matrimonial regime of the parties
stante matrimonio, whereas the prenuptial agreement had no bearing at all on the nature
of the matrimonial regime and the respective estates of the parties. Their estates remain
separate. Thus, the provisions of the antenuptial contract would remain intact and
would be applicable upon the divorce despite the respondent ’s entitlement to enforce
the terms of the prenuptial agreement.
44 South African Police Service v Solidarity obo Barnard [2014] ZACC 23; 2014 (6) SA 123 (CC); [2014] 11
BCLR 1025 (CC).
45 Id at para 212.
THERON J
21
[58] The Supreme Court of Appeal further held that the finding by the High Court—
“ignores the clear intention of the parties as espoused in the agreement. The preamble
of the agreement is clear and unambiguous. It was carefully crafted and indicated that
‘it is agreed that the parties will be married out of community of property’ and that ‘the
[antenuptial contract] will be registered’. An analysis of the text and the factual context
in which the agreement was concluded including the clear purport of the agreement
reveals that the parties never intended that the agreement should rectify or amend the
[antenuptial contract]. The agreement re cords no reference to the changing of the
matrimonial regime. It is important to note that the agreement in this matter was made
by the parties fully alive to their matrimonial regime. Had there been any intention on
the parties to alter, vary or amend t he terms of the [antenuptial contract] by the
conclusion of this agreement, the parties would have expressed themselves in clear
terms in this regard.”46
[59] The Supreme Court of Appeal was correct in finding that the two agreements can
co-exist, as the donation does not change anything stante matrimonio and does not
change the matrimonial regime. It merely changes the value of the estates after divorce
or death. They can therefore be read together.
[60] The Supreme Court of Appeal also correctly found that the parties did not intend
to rectify or amend the antenuptial contract with the prenuptial agreement. This is
because the prenuptial agreement s tates that it must be read together with the
antenuptial contract and it does not reference the chang ing of the matrimonial regime.
With the greatest respect to the Supreme Court of Appeal , that should have been the
end of the matter. As stated, the applicability of section 7(1) of the Divorce Act was
not a matter that arises on the pleadings.
[61] I stress that the High Court and the Supreme Court of Appeal failed to recognise
that, on the pleadings, they were called upon to consider an unspecified donation. This
46 Supreme Court of Appeal judgment above n 8 at para 10.
THERON J / SCHIPPERS AJ
does not fall within the ambit of section 7 of the Divorce Act. It follows that whatever
was said by the Supreme Court of Appeal in respect of th e characterisation of the
prenuptial agreement, as well as on the settlement and ousting issues, are
pro non scripto (as not written) . I should emphasise that these are important issues.
However, I do not believe that based on the pleadings , this Court is in a position to
answer these issues.
[62] If the pleadings are amended to raise the above issues and if the res pondent
pleads an alternative claim for maintenance in terms of section 7(2) of the Divorce Act,
the Regional Court may decide them unencumbered by the judgments of the High Court
and the Supreme Court of Appeal. All this Court should decide and does decide, is that
the incompatibility issue was correctly decided by the Regional Court. I stress that the
other issues remain open, subject to proper pleading.
Order
[63] For these reasons, the following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed with costs.
SCHIPPERS AJ (Zondo CJ and Maya DCJ concurring):
[64] I have had the benefit of reading the judgment of my Colleague, Theron J
(first judgment). I agree that this matter engages this Court’s constitutional jurisdiction
for the reasons given in the first judgment.
[65] With respect, I do not agree with the first judgment in the result or in principle.
The first judgment states that “the High Court and the Supreme Court of Appeal failed
to recognise that on the pleadings, they were called upon to consider an unspecified
donation”, which does not fall within the ambit of section 7 of the Divorce Act. It
SCHIPPERS AJ
23
follows that, according to the first judgment, the prenuptial agreement concluded
between the parties constitutes an enforceable donation. It is however not a donation.
[66] My difficulty with the first judgment is this. The prenuptial agreement
purportedly determines the entirety of the respondent’s spousal maintenance upon
dissolution of the marriage by divorce, contrary to section 7 of the Divorce Act. The
parties cannot, by private agreement, subvert a court’s power under section 7(1) of the
Divorce Act, to vet a settlement agreement providing for spousal maintenance. Neither
can the y subvert its power to make an order for spousal maintenance in terms of
section 7(2), in the absence of a settlement agreement.
[67] It goes without saying that courts must abide by the terms of any statute. No
court of law can lend its authority to a party seeking to enforce an agreement which the
law prohibits, and which violates public policy (illegality principle),47 a fortiori (for the
stronger reason) when the illegality is apparent from the contract itself.48 As Nugent JA
observed in Mabena:49
“The Constitution proclaims the existence of a State that is founded on the rule of law.
Under such a regime legitimate State authority exists only within the confines of the
law, as it is embodied in the Constitution that created it, and the purported exercise of
such authority other than in accordance with law is a nullity. That is a cardinal tenet
of the rule of law. It admits of no exception in relation to the judicial authority of the
State. Far from conferring authority to disregard the law the Constitutio n is the
imperative for justice to be done in accordance with law. As in the case of other State
authority, the exercise of judicial authority otherwise than according to law is simply
invalid.”50
47 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) (Cool Ideas)
at para 103, affirming Metro Western Cape (Pty) Ltd v Ross [1986] ZASCA 36 ; 1986 (3) SA 181 (A)
(Metro Western Cape).
48 Yannakou v Apollo Club 1974 2 All SA 129 (AD); 1974 (1) SA 614 (A) at 623H (Yannakou).
49 S v Mabena [2006] ZASCA 178; 2007 (1) SACR 482 (SCA).
50 Id at para 2.
SCHIPPERS AJ
24
[68] This Court cannot shut its eyes to an agreement that viola tes the law, even less
on the ground that it was not pleaded. Thus, it matters not that the point of law – the
unenforceability of the agreement because it ousts a court’s power under section 7 of
the Divorce Act – was not squarely raised in the applicant ’s plea to the counterclaim.
The illegality principle cannot depend on a procedural matter, such as the rules of
pleading. This principle is designed to vindicate the public interest as against the
interests and legal rights of the parties. That is why a court is required to raise a
violation of the illegality principle of its own motion, even if the parties have not raised
it.51
[69] Innes CJ made this clear a century ago:
“When a Court is asked to enforce or uphold a contract which the law expressly forbids,
it is not only justified but bound to take cogni sance of the prohibition and the
consequent illegality.” 52
[70] Later, in Yannakou Trollip JA said:
“It is true that it is the duty of the court to take the point of illegality mero motu, even
if the defendant does not plead or raise it; but it can and will do so if the illegality
appears ex facie the transaction or from the evidence before it, and, in the latter event,
if it is also satisfied that all the necessary and relevant facts are before it.” 53
[71] This is a case where the illegality appear s ex facie the prenuptial agreement.
Further, the illegality of the agreement was fully argued in, and decided by, both the
High Court and the Supreme Court of Appeal. It raises no factual issue – no amount of
evidence can change the meaning and effect of the prenuptial agreement. No evidence
is necessary to prove its illegality. 54 What is more, a decision as to whether the
51 Cape Dairy and General Livestock Auctioneers v Sim 1924 AD 167 (Cape Dairy) at 170; Yannakou above n 48
at 617H and 623H.
52 Cape Dairy above n 51 at 170.
53 Yannakou above n 48 at 623H.
54 Id at 617H.
SCHIPPERS AJ
25
prenuptial agreement is consistent with section 7 of the Divorce Act canno t result in
any unfairness to the respondent – it is a point of law. 55 The resolution of this appeal
rests primarily on an exercise in statutory interpretation. It is thus not surprising that
the respondent does not complain of any prejudice. Her case th roughout has been that
the prenuptial agreement constitutes an enforceable donation.
The prenuptial agreement is not a donation
[72] The importance of determining the true nature of an agreement – which is a
question of fact – was stated by Innes J in Zandberg v Van Zyl as follows:
“Not infrequently, however (either to secure some advantage which otherwise the law
would not give, or to escape some disability which otherwise the law would impose),
the parties to a transaction endeavour to conceal its real chara cter. They call it by a
name, or give it a shape, intended not to express but to disguise its true nature. And
when a Court is asked to decide any rights under such an agreement, it can only do so
by giving effect to what the transaction really is ; not what in form it purports to be.
The maxim then applies plus valet quod agitur quam quod simulate concipitur [what
is actually done is more important than that which seems to have been done]. But the
words of the rule indicate its limitations. The Court m ust be satisfied that there is a
real intention, definitely ascertainable, which differs from the simulated intention. For
if the parties in fact mean that a contract shall have effect in accordance with its tenor,
the circumstances that the same object m ight have been attained in another way will
not necessarily make the arrangement other than it purports to be. The inquiry,
therefore, is in each case one of fact, for the right solution of which no general rule can
be laid down.”56
[73] With that caution, I t urn to consider the terms of the prenuptial agreement. It
was concluded on 20 February 2015 and records that the parties intended to get married
on 14 March 2015. They were married on 19 May 2015. The marriage lasted some
three years; the respondent sue d for divorce on 8 August 201 8. The prenuptial
55 Paddock Motors above n 42 at 23D-24G affirmed in Alexkor Ltd v Richtersveld Community [2003] ZACC 18;
2003 (12) BCLR 1301 (CC); 2004 (5) SA 460 (CC) at para 43.
56 Zandberg v Van Zyl 1910 AD 302 (Zandberg) at 309.
SCHIPPERS AJ
26
agreement is simply headed “agreement” (“ooreenkoms”) and is repeatedly referred to
as a “donation” in the papers. It provides that upon the dissolution of the intended
marriage by divorce or the death of th e applicant, the latter “donates” the following
property to the respondent, as her exclusive property:
(a) A house to the value of R1 500 000, to be pointed out by the respondent.
The applicant or his deceased estate is responsible for payment of the
transfer costs.
(b) A vehicle valued at R250 000, as identified by the respondent.
(c) The applicant or his deceased estate shall pay the respondent’s medical
aid premiums for as long as she lives.
(d) The applicant or his estate shall pay an amount of R20 000 monthly to the
respondent “as lifelong maintenance between spouses” (“lewenslange
onderhoud tussen gades”).
(e) The applicant or his estate shall pay the respondent’s Momentum Life
Policy for as long as she lives.
[74] These terms constitute the obligations and responsibilities of married persons.
They include providing a house for accommodation and a vehicle for transport. All the
terms of the prenuptial agreement comprise financial support to the respondent
post-divorce. The prenuptial agreement, therefore, is nothing more than an undertaking
to provide spousal maintenance. Lesbury van Zyl describes “maintenance” as follows:
“In South African law the terms “support”, “maintenance” and “alimony” are used
interchangeably, although “alimony” is used less frequently. The duty of support
extends to accommodation, food, clothes, medical and dental attention and other
necessaries of life on a scale in line with the social position, lifestyle and financial
resources of the parties. While food, clothing and shelter are always mentioned in any
discussion of maintenance, the concept embraces much more than these necessities.
The maintenance of children includes education. Today the scope of maintenance is
always determined according to the standard of living of the parties concerned.”57
57 Van Zyl Handbook of the South African Law of Maintenance 3 ed (LexisNexis, South Africa 2010) at 3.
SCHIPPERS AJ
27
[75] In the Supreme Court of Appeal, the respondent contended that the
prenuptial agreement was enforceable as a distinct legal instrument; that it was a
contractual claim based on donations in her favour; that section s 7(1) and (2) of the
Divorce Act had no application; that the applicant’s “donation” in terms of which he
undertook to pay the respondent lifelong maintenance was permissible; and that the
pacta sunt servanda principle applied. The Supreme Court of Appeal stated that the
High Court should have upheld these contentions.58
[76] Consequently, the Supreme Court of Appeal held that the prenuptial agreement
was a donation within the meaning of that term in LAWSA,59 namely—
“an agreement which has been induced by pure (or disinterested) benevolence or sheer
liberality whereby a person under no legal obligation undertakes to give something
(this includes the gratuitous release or waiver of the right) to another person, called ‘the
donee’, with the intention of enriching the donee, in return for which the donor receives
no consideration nor expects any future advantage.”
[77] However, on first principles, the prenuptial agreement is not a donation. Rather,
it is a contract, concluded by the parties prior to marriage, that determines spousal
maintenance when the marriage comes to an end by divorce or death; nothing more
nothing less. In my view, no evidence of the circumstances leading up to its conclusion
can change the meaning and effect of the agreement: its terms are clear and
unambiguous. It is trite that the nature of a contract is not defined according to the
parties’ description of it, but what, according to its terms, the contract in substance is.60
So, the fact that the agreement was styled a “donation” and that the respondent admitted
this in the pleadings, does not render it enforceable, as a matter of law.
58 Supreme Court of Appeal judgment above n 8 at para 7.
59 Harms “Donations” in LAWSA 3 ed (2017) vol 16 at para 19 (cited as 8 LAWSA (3ed) para [268] in
Supreme Court of Appeal judgment above n 8 at fn 4).
60 Auditor-General v MEC for Economic Opportunities, Western Cape [2021] ZASCA 133; 2022 (5) SA 44 (SCA)
at para 22; Zandberg above n 56 at 309.
SCHIPPERS AJ
28
[78] It follows that the prenuptial agreement was not borne out of pure benevolence
or sheer liberality. None of these virtues are present when the so -called donations are
made, or enforced – at divorce when the parties are alienated from each other, generally
at a time of intense personal and emotional turmoil. In this case, the parties entered into
the prenuptial agreement solely because of the intended marriage, recognising that
spousal maintenance is an obligation imposed by marriage. That is the foundation of
the prenuptial agreement. Consequently, there can be no suggestion of enrichment as
contemplated in a donation.
[79] To show that the applicant had no intention of making any gift to or enriching
the respondent, one need merely ask whether, absent the marriage and its consequences,
the parties would have concluded an agreement which provides for payment by one
party to the other of the purchase price of a house and vehicle, medical aid and insurance
premiums, and lifelong maintenance – obligations and responsibilities of the married
state. The answer to this question must be “no”. None of these payments are gifts:
maintenance, medical aid and insurance premiums are not monthly “gifts”. Neither is
accommodation nor transport. That these are not gifts is underscored by the reason for
the prenuptial agreement, recorded in the agreement itself – both parties are unmarried
and intend to marry. And, if the prenuptial agreement is not a deed of donation, then it
cannot be enforced as such.
[80] The pacta sunt servanda principle is accordingly inapposite: the agreement the
respondent seeks to enforce is not a binding donation, subject merely to remedies in
contract law. In any event, the principle cannot be applied to settlement agreements on
the dissolution of marriage without more: marriage is not a commercial contract. In
Radmacher,61 Lady Hale explained why marriage differs from a commercial contract:
“Marriage is not only different from a commercial relationship in law, it is also different
in fact. It is capable of influencing and changing every aspect of a couple’s lives: where
they live, how they live, who goes to work outside the home and what wor k they do,
61 Radmacher (formerly Granatino) v Granatino [2010] UKSC 42.
SCHIPPERS AJ
29
who works inside the home and how, their social lives and leisure pursuits, and how
they manage their property and finances. A couple may think that their futures are all
mapped out ahead of them when they get married but many things may happen to push
them off course – misfortune such as redundancy, bankruptcy, illness, disability,
obligations to other family members and especially to children, but also unexpected
opportunities and unexplored avenues. The couple are bound together in more than a
business relationship, so of course they modify their plans and often compromise their
individual best interests to accommodate these new events. They may have no choice
if their marriage is to survive. And these are events which take place while it i s still
hoped that the marriage will survive.
. . .
All of this means that it is difficult, if not impossible, to predict at the outset what the
circumstances will be when the marriage ends. It is even more difficult to predict what
the fair outcome of the couple’s financial relationship will be.” 62
[81] The fact that marriage and relationship breakdown has an adverse effect on
society as a whole and that it is in the public interest that parties should care for the
welfare of their families has been recognise d by this Court. It noted in Dawood63 that
marriage and the family are social institutions of vital importance, which provide for
the security, support and companionship of members of society. Entering into marriage,
this Court said, is to enter a relatio nship of public significance as well, since marriage
gives rise to moral and legal obligations, particularly the parties’ reciprocal duty to
support one another, that serve an important social function.64
[82] The Supreme Court of Appeal, however, saw it differ ently. It held that the
prenuptial agreement – which in effect provides for spousal maintenance – is “a
contractual claim based on donations” in favour of the respondent, to which
sections 7(1) and (2) of the Divorce Act do not apply. This finding is erroneous.
62 Id at paras 175-6.
63 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (Dawood).
64 Id at paras 30-1.
SCHIPPERS AJ
30
The prenuptial agreement is contrary to public policy
Section 7 of the Divorce Act
[83] Section 7 of the Divorce Act is headed “Division of assets and maintenance of
parties” and provides:
“(1) A court granting a decree of divorce may in accordance with a written
agreement between the parties make an order with regard to the division of the
assets of the parties or the payment of maintenance by the one party to the
other.
(2) In the absence of an order made in terms of subsection (1) with regard to the
payment of maintenance by the one party to the other, the court may, having
regard to the existing or prospective means of each of the parties, their
respective earning capacities, financial needs and obligations, the age of each
of the parties, the duration of the marriage, the standard of living of the parties
prior to the divorce, their conduct in so far as it may be relevant to the break -
down of the marriage, an order in terms of subsection (3) and any other factor
which in the opinion of the court should be taken into account, make an order
which the court finds just in respect of the payment of maintenance by the one
party to the other for any period until the death or remarriage of the party in
whose favour the order is given, whichever event may first occur.”
[84] The correct approach to statutory interpretation is settled. What must be
considered is the language of the provision, the context in which it appears, the apparent
purpose to which it i s directed, and the material known to those responsible for its
production. The inevitable point of departure is the language of the provision, read in
context and having regard to its purpose.65
[85] On its plain language, section 7(1) makes it clear, firstly, that the power to make
a spousal maintenance order, or an order regarding the division of assets, is ancillary to
65 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 ; 2012 (4) SA 593 (SCA)
at para 18, affirmed in Airports Company South Africa v Big Five Duty Free (Pty) Limited [2018] ZACC 33;
2019 (2) BCLR 165 (CC) ; 2019 (5) SA 1 (CC) at para 29; and National Credit Regulator v Opp erman [2012]
ZACC 29; 2013 (2) SA 1 (CC); 2013 (2) BCLR 170 (CC) at paras 93-4.
SCHIPPERS AJ
31
the court’s power to grant a decree of divorce. The “written agreement” envisaged in
section 7(1) of the Divorce Act is therefore confined to a settlement agreement when
divorce is actually pending or contemplated.
[86] Secondly, it is also clear from the wording of sections 7(1) and (2) that the court
retains a discretion to make an order for spousal maintenance, whether or not the parties
have concluded a written agreement to that effect. The agreement is but one factor,
albeit an important one, together with the factors which guide the exercise of the court’s
discretion set out in section 7(2), that a divorce court takes into account in determ ining
a fair amount of spousal maintenance. These factors, on the plain wording of
section 7(2), do not constitute an exhaustive list.
[87] Thirdly, the purposes of section 7 are evident from the provision itself. It is
aimed at the fair and equitable distri bution of the economic consequences of the
marriage and its breakdown and to ensure that a party in need of spousal maintenance
post-divorce, is not left destitute. These economic consequences and the means and
needs of the parties, are difficult, if not impossible, to predict in advance. Instead, the
full impact of the marriage and its breakdown and the parties ’ means and needs are
things that only become apparent over time, and are manifest at the point of divorce.
[88] Parliament has vested in the courts, under section 7(1) of the Divorce Act, a
discretion to review and reject written agreements between parties engaged in or
contemplating divorce proceedings, concerning the division of assets and payment of
spousal maintenance. It has empowered the courts to make an order for spousal
maintenance and to fix the amount and the duration of it – until death or remarriage.
Such an order is made either in support or variation of a written agreement concluded
by the parties, under section 7(1), or in the absence of such an agreement, in terms of
section 7(2).
[89] A settlement agreement made an order of court under section 7(1) derives its
authority from the court and not from the parties’ agreement. The court has an
SCHIPPERS AJ
32
independent duty to consider the settlement agreement and to decide whether or not to
approve it. The court is not a rubber stamp. Parliament has entrusted to the courts the
task of deciding appropriate and just orders for spousal maintenance, taking into account
the factors listed in section 7(2) , against the backdrop of the parties’ particular
circumstances.
The prenuptial agreement violates section 7 of the Divorce Act
[90] The prenuptial agreement is not a “written agreement” as envisaged in
section 7(1): it was not concluded while a divorce was ac tually pending or
contemplated. Rather, it was concluded in circumstances of an intended marriage – it
says so in terms. That being so, the prenuptial agreement is contrary to public policy,
because it purportedly ousts the court’s power to make a just o rder of maintenance in
terms of section 7(2). A just maintenance order in this case might exclude the provision
of accommodation, transport and insurance premiums, or the determination of
maintenance in a lesser amount than that specified in the prenuptia l agreement, or no
support at all. This cannot be determined in the present case, because the court’s power
has been ousted entirely.
[91] The agreement is unenforceable whether one applies the majority judgment in
S T v C T, namely that the “written agreemen t” in section 7(1) means a settlement
agreement when divorce is actually pending or contemplated; or the minority view that
the written agreement does not have to be concluded when divorce is actually pending.
On either approach the judgment of the Suprem e Court of Appeal is unsustainable,
because it holds that the prenuptial agreement is enforceable as an ordinary contract and
that section 7 has no application.
[92] Parties cannot waive their right to a spousal maintenance order in a prenuptial
agreement – concluded at a time when they have no knowledge of their financial means
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and needs. That is against public policy, and void. 66 In S T v C T67 the majority of the
Supreme Court of Appeal said:
“[T]here is a stark difference between waiver upon divorce of the right of a spouse to
seek variation of a maintenance order, as envisaged in s ection 8(1), and a prenuptial
waiver of maintenance. The main, compelling, difference is that at the time of divorce
both spouses have full knowledge of their respective financial means and needs. That
is not the case before the parties have married. It was pointed out in Schutte that, unlike
in England, here a divorced spouse has no statutory remedy if no order for maintenance
is granted upon divorce. Section 7(2) was enacted (and before it, s ection 10 of the
Matrimonial Affairs Act) to provide a statutory right to a spouse to obtain a
maintenance order upon divorce. Public (legal) policy therefore establishes a statutory
right to maintenance upon divorce. Such a right canno t be waived prenuptially – it
would offend legal policy and hence public policy.”68
[93] Although the applicant has not expressly waived his right to maintenance in the
prenuptial agreement, his position is no different in principle: a prospective spouse
cannot before marriage exclude the statutory right to maintenance in section 7 of the
Divorce Act. The applicant is ostensibly bound by the terms of the prenuptial agreement
despite the fact that, when it was concluded, the parties could not forecast: how the
economic consequences of the marriage or its breakdown would play out over time;
their means; earning capacities; financial needs and obligations; and their conduct in
relation to the breakdown of the marriage. These are factors that the divorce court is
required to take into account when determining a just order for spousal maintenance
under section 7(2) of the Divorce Act. The prenuptial agreement is a purported ouster
by the intending spouses of this power of the court.
[94] The Supreme Court of Appeal held that section 7(1) is inapplicable because the
respondent did not ask for a settlement agreement to be made an order of court under
66 S T v C T above n 2 at paras 174 and 178.
67 Id.
68 Id at para 174.
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section 7(1). Her claim, the Court said, is “a contractual claim for specific
performance”. But this is not only incorrect; it also ignores the text, context and purpose
of section 7.
[95] The relief sought by the respondent was that, upon the granting of a decree of
divorce, the trial court should issue an order in terms of the “donations” made in the
prenuptial agreement. In o ther words, she asked the divorce court to enforce the
prenuptial agreement as a matter of pure contract, or as the Supreme Court of Appeal
put it, she was seeking to enforce “a contractual claim for specific performance”. Either
way, the respondent was s eeking to oust the court’s power to determine a just
maintenance order in terms of section 7(2) of the Divorce Act.
[96] Parliament has decreed that post-divorce spousal maintenance is obtained in one
of two ways. First, through a settlement agreement in a pe nding or imminent divorce,
which may be approved or rejected by an order of court contemplated in section 7(1).
Second, in the absence of such agreement, by an order of court under section 7(2). In
both instances, the divorce court must consider the fact ors in section 7(2) in deciding
what amount of spousal maintenance is appropriate and just. Those factors guide the
court in exercising its discretion under section 7(1).
[97] In my opinion, the finding that the prenuptial agreement is a contractual claim
for specific performance takes the judicial and societal understandings of the function
of spousal maintenance to new and far horizons. The agreement simply cannot be a
donation, enforceable by an order for specific performance, for the reasons advanced
below.
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[98] The agreement is inimical to the legal policy regarding spousal maintenance,
contained in section 7 of the Divorce Act. 69 As was stated in Claassens v Claassens70
and affirmed in S T v C T:
“Public policy frowns on the transaction only when the particular remedy that is waived
is one it wants retained. What offends public policy outside the Schierhout rule, in
other words, is not the exclusion of the Court's jurisdiction per se, but its exclusion
from matters which public policy insists on keeping justiciable.” 71
[99] An agreement of the kind in question would allow parties to circumvent
section 7, by determining spousal maintenance, even before marriage, under the guise
of a contract of “donation”. This, in complete disregard of the divorce court’s power to
determine spousal maintenance, after considering, at the time of divorce, the means and
needs of the parties and the duration of, and reasons for, the breakdown of the marriage.
[100] Such a prenuptial agreement subverts the legislative and societal o bjectives of
post-divorce spousal maintenance and ousts the divorce court’s power under section 7.
The purpose of spousal maintenance is to assist a party in need of it and to relieve
economic hardship of spouses arising from the breakdown of the marriage . The order
must be just and equitable in the circumstances. That is why Parliament in section 7(2)
has determined the factors which a court must take into account when making an order
for spousal maintenance. These include the existing and prospective means of the
parties; their earning capacities; their financial needs and obligations; their respective
ages; the duration of the marriage; their conduct relevant to the breakdown of the
marriage; and any other factor the court considers relevant.
[101] Treating the prenuptial agreement as contractually binding means that it can be
enforced like any other commercial agreement, regardless of any change in a party’s
69 Id at para 178.
70 Claassens v Claassens 1981 (1) SA 360 (N) at 366G-H.
71 S T v C T above n 2 at para 179. The principle enunciated in Schierhout v Minister of Justice 1926 AD 99 at
109 is that “a thing done contrary to the direct prohibition of the law is void and of no force”.
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(here, the applicant’s) circumstances, such as poverty, unemployment, illness or
disability. It also means that the “donee” is entitled to spousal maintenance regardless
of whether or not she or he is in need of it at the date of divorce and regardless of
whether the “donor” has the means to pay it. This is untenable.
[102] But it goes further. Parliament has specifically empowered the courts , under
section 8 of the Divorce Act, to rescind, vary or suspend a maintenance order granted
under the Act, if there is sufficient reason for it. 72 Recognition of the prenuptial
agreement as an enforceable deed of donation also cuts across this power.
[103] In addition, parties married in community of property, by resort to an enforceable
“donation” in a prenuptial agreement regulating the patrimonial consequences of their
marriage, can secure benefits of the marriage in co mmunity of property, thereby
excluding a court’s power under section 9 of the Divorce Act, to make an order that
they should forfeit the benefits of the marriage in community of property. 73 And this,
despite the presence of factors such as substantial misc onduct by a party and the fact
that he or she would unduly benefit unless such an order is made.
[104] Moreover, the “donor” is effectively precluded from asking the divorce court to
make an order for spousal maintenance under section 7(2). This is because he will be
confronted with an enforceable “contractual claim for specific performance” – against
which an inability to pay maintenance on account of say, poverty, illness or disability,
72 Section 8(1) of the Divorce Act provides:
“A maintenance order or an order in r egard to the custody or guardianship of, or access to, a
child, made in terms of this Act, may at any time be rescinded or varied or, in the case of a
maintenance order or an order with regard to access to a child, be suspended by a court if the
court finds that there is sufficient reason therefore.”
73 Section 9(1) of the Divorce Act provides:
“When a decree of divorce is granted on the ground of the irretrievable break -down of a
marriage the court may make an order that the patrimonial benefits of the marriage be forfeited
by one party in favour of the other, either wholly or in part, if the court, having regard to the
duration of the marriage, the circumstances which gave rise to the break -down thereof and any
substantial misconduct on the part of either o f the parties, is satisfied that, if the order for
forfeiture is not made, the one party will in relation to the other be unduly benefited. ”
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is no defence. This cannot be right. It negates the statutory right to maintenance in
section 7 of the Divorce Act and renders its enforcement uncertain.
[105] Applied to the present case, a deserving claim by the applicant for maintenance
under section 7(2) would be meaningless, because the respondent has an enforceable
claim for “lifelong spousal maintenance” of R20 000 per month, quite apart from her
claims for medical and insurance premiums – all for the rest of her life. The fact that
the respondent may have remarried, and may not be in need of maintenance at all, would
make no difference. And precisely because the prenuptial agreement is contractually
binding, the applicant would not be entitled to apply for a reduction of the lifelong
spousal maintenance of R20 000 or the medical and insurance premiums, despite an
adverse change in his circumstances.
[106] The suggestion that the applicant is entitled to apply for an order under
section 7(2) of the Divorce Act is also illogical. How can the applicant sensibly seek
maintenance from the respondent, when he is already contractually obliged to provide
her with spousal maintenance? And the ouster of the court’s power under section 8 of
the Divorce Act to vary a maintenance order is self-evident. The result? The applicant
is left without a remedy: an order under section 7 cannot be granted after dissolution of
the marriage.74 This, in turn, may cast the burden of the applicant’s support onto the
state, which is manifestly unjust in a case where the respondent has the means to provide
spousal maintenance.
[107] This is the clearest indication of the court’s power under section 7 being ousted,
and why public policy dictates that spousal maintenance is in the discretion of the
divorce court. This principle is not new and has stood the test of time. It affirms the
decision in S T v C T.75 More than a century ago, the principle was emphasised in
Braude.76 The case concerned the enforceability of a postnuptial agreement in favour
74 Schutte v Schutte 1986 (1) SA 872 (A) at 884A.
75 S T v C T above n 2 at paras 178-9.
76 Braude v Braude (1899) 16 SC 565 (Braude).
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of the wife. It provided that, if the husband ill -treated her, making it necessary for her
to leave him, he would pay her half of his estate and maintenance of £5 per month. The
trial court held that the agreement was unenforceable. Maasdorp J said:
“In my opinion a contract of this nature, even if there is in it nothing objectionable or
contrary to the policy o f the law, is merely one of the circumstances which the court
would take into consideration in using its discretion with respect to the provision which
the husband should be ordered to make for the wife, and will not be enforced as a matter
of course, and without further enquiry. Under the contract of marriage the husband is
under certain obligations to the wife which determine her claim upon him when she
obtains a degree of separation. These claims may to a certain extent be made the subject
of an agreem ent which the court may sanction or not in its discretion. Where
immediately before or at the time of the trial of a suit for separation the parties agree
with reference to the division of the estate and alimony, such agreement may be a fair
guide in determining the matter, but it is quite a different thing when the agreement has
been made more than two and a half years before the trial of a suit. Notwithstanding
such agreement, the court must in my opinion have proof of the approximate value of
the estate, the present income of the husband and the necessities of the wife.”77
[108] On appeal, the Supreme Court in Braude held:
“A specially objectionable feature of this contract, made in contemplation of future
separation, is the provision made for the wife, irre spective altogether of the means of
the husband at the time of actual separation. The husband might be in good
circumstances when he made the contract and might afterwards fall into poverty while
community was existing between the spouses. . . . Such an agreement ought to be
carefully scrutinised by the Court. . . . The matter of alimony was wholly in the
discretion of the Court.” 78
[109] In the same appeal, Buchanan J said:
77 Id at 568.
78 Id at 572.
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“[O]ur own authorities are clear that questions of alimony are in the discretion of the
Court, independently of any agreement between the parties. Any such agreement might
be an element to guide the Court in its discretion, but it is for the Court to exercise its
judicial discretion.”79
[110] What is more, the enforcement of a prenuptial agreement of the kind in this case
is an inducement for persons to conclude similar contracts with their prospective
spouses with the view to divorce at the earliest opportunity , in order to enforce the
contract and claim the benefits under it. I do not think it is wrong to say that public
policy and the law of this country support marriage and encourage married people to
stay married.
[111] What all of this shows is that a prenuptia l agreement, purportedly determining
spousal maintenance to the exclusion of a divorce court’s powers under section 7 of the
Divorce Act, cannot be sanctioned by a court. The agreement violates section 7 which,
in light of the section 7(2) factors, ensure s consistency, transparency and certainty in
the law in the area of spousal maintenance. Allowing the respondent’s claim would
introduce inconsistency and uncertainty into the law. The prenuptial agreement is
tainted by illegality, is against public poli cy and is therefore, void. It cannot found a
cause of action.
[112] It is a general principle of our law that an act performed contrary to a statutory
prohibition is invalid, has no legal effect, and must be regarded as never having been
done.80 The fact that there is no criminal sanction for a violation of section 7 of the
Divorce Act, does not, in my view, change the position or render the illegality principle
inapplicable. In any event, our common law of contract does not recognise agreements
contrary to pu blic policy.81 It follows that neither party can acquire rights under the
79 Id.
80 Cool Ideas above n 47 at para 90 and 168, affirming Schierhout v Minister of Justice 1926 AD 99 at 109.
81 Robinson v Randfontein Estates G M Co Ltd 1925 AD 173 at 204; Magna Alloys & Research (SA) (Pty) Ltd. v
Ellis [1984] ZASCA 116; 1984 (4) SA 874 (A) at 891G, affirmed in Beadica 231 CC v Trustees, Oregon Trust
[2020] ZACC 13; 2020 (5) SA 247 (CC); 2020 (9) BCLR 1098 (CC) at para 27.
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prenuptial agreement, whether or not there was an intention to break the law. 82
Recognition that the prenuptial agreement is enforceable would give sanction to the
very situation the legislature has sought to prevent.83 It would also be inconsistent with
the rule of law. The court is bound by the rule of law and its incident, the principle of
legality;84 it cannot make an order that the law does not permit.
[113] Finally, in my view, the p renuptial agreement is also in conflict with the
Maintenance of Surviving Spouses Act.85 This Act states that the survivor has a claim
against the estate of the deceased spouse, only if she or he is unable to provide for their
maintenance needs from their own means and earnings;86 and lists the factors that must
be taken into account in determining reasonable maintenance.87 The applicant’s counsel
referred to this issue in her written submissions and, in passing, in argument before us.
No more need be said about it. By reason of the conclusion to which I have come, it is
unnecessary to consider the correctness or otherwise of the Supreme Court of Appeal’s
reliance on A M v H M.88
82 Metro Western Cape above n 47 at 188A-B.
83 Cool Ideas above n 47 at para 168.
84 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (4) BCLR
393 (SCA) at para 15 and Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President
of the Republic of South Africa [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 at para 90.
85 27 of 1990.
86 Section 2(1) of the Maintenance of Surviving Spouses Act provides, under the heading “Claim for maintenance
against estate of deceased spouse”:
“If a marriage is dissolved by death after the commencement of this Act the survivor shall have
a claim against the estate of the deceased spouse for the provision of his reasonable maintenance
needs until his death or remarriage in so far as he is not able to provide therefor from his own
means and earnings.”
87 Section 3 of the Maintenance of Surviving Spouses Act provides:
“Determination of reasonable maintenance needs
In the determination of the reasonable maintenance needs of the survivor, the following factors
shall be taken into account in addition to any other factor which should be taken into account:
(a) The amount in the estate of the deceased spouse available for distribution to heirs and
legatees;
(b) the existing and expected means, earning capacity, financial needs and obli gations of
the survivor and the subsistence of the marriage; and
(c) the standard of living of the survivor during the subsistence of the marriage and his
age at the death of the deceased spouse.”
88 A M v H M above n 12.
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Conclusion
[114] The prenuptial agreement is illegal and unenforceable. For the reasons I have
given, I would grant leave and allow the appeal, with costs.
For the Applicant:
For the Respondent:
R Ferreira and A Koekemoer instructed
by Chris Liebenberg Attorneys
H West instructed by Kruger and Okes
Attorneys