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[2024] ZALMPPHC 45
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M.R v M.T (HCA38/2022) [2024] ZALMPPHC 45 (6 May 2024)

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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: HCA38/2022
1. Reportable: Yes/No
2. Of interest to other
judges: Yes/No
3. Revised
In
the matter between:
M[…]
Z[…]
R[…]                                                                 APPELLANT
And
M[…]
A[…]
T[…]                                                                 RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant had instituted divorce proceedings against the
respondent claiming (i) a final decree
of divorce; (ii) and no order
as to division of the joint estate on account of the parties having
entered into a marriage out of
community of property, to the express
exclusion of the accrual system. According to the appellant’s
particulars of claim,
the parties were married to each other out of
community of property on 27
th
January 2015. The parties
have also entered into an antenuptial contract (ANC) on 27
th
January 2015 which was registered on 11
th
February 2015.
[2]
The respondent had defended the appellant’s divorce action, and
had also filed a claim in reconvention.
In her claim in reconvention,
the respondent had stated that the parties were married to each other
on 25
th
July 2009 in terms of the Recognition of the
Customary Marriages Act 120 of 1998. The parties on 27
th
January 2015 changed their matrimonial regime in terms of section 10
of Act 120 of 1998 to civil marriage in terms of Marriage
Act 25 of
1961, and concluded an invalid antenuptial contract as the marriage
was already in place. The grounds of its invalidity
were that the
antenuptial contract was not sanctioned by the High Court; did and
did not record the net commencement value of the
parties’
respective estate/separate properties.
[3]
The respondent agreed with the applicant that the marriage
relationship between the parties has irretrievably
broken down and
there exist no prospects of restoration of a normal marriage
relationship between them. The respondent is seeking
(i) decree of
divorce; (ii) equal division of the joint estate; (iii) and an order
that the antenuptial contract is invalid and
unenforceable.
[4]
At the commencement of the trial, the parties’ counsel agreed
that the parties were married to
each other in terms of the
Recognition of Customary Marriages Act during 2009. That the parties
went on to change their matrimonial
regime in terms of section 10 of
the Customary Marriages Act from customary marriage to civil marriage
during 2015.
[5]
The court
a quo
was called upon to determine whether the ANC
was valid since there was no High Court order to change the
matrimonial regime, and
also that the ANC did not record the parties’
net commencement value of their assets. That the issues raised by the
defendant
did not require oral evidence. The parties further agreed
that the matter should proceed on the basis that there was
irretrievable
breakdown of the marriage between them. Further that
they will address the court during their closing arguments on the
outstanding
legal issues. That the issue whether the parties have
concluded a customary marriage before the 2015 civil marriage was not
a critical
issue to be decided by the court
a quo
, but the
critical issue was the validity of the ANC. Further that the onus was
on the respondent since she was the one challenging
the validity of
the ANC.
[6]
The respondent testified that she and the appellant were married to
each other by traditional
marriage during 2009, which they changed to
civil marriage during 2015. The marriage relationship between her and
the appellant
had irretrievably broken down, and there exist no
prospects of restoration of a normal marriage relationship. The last
time she
and the appellant had stayed together as husband and wife
was during 2019.
[7]
Even though at the commencement of the trial the parties have agreed
that the determination of the validity
of the customary union was not
that critical, the respondent was cross-examined at length about the
validity of the customary union
between her and the appellant. It was
put to the respondent that the lobola negotiations were not concluded
on 25
th
July 2009 since the minutes of the lobola
negotiations shows that it was agreed that they were still going to
have a day on which
the negotiations were going to be finalised when
certain outstanding things will be brought. The respondent stated
that the lobola
negotiations were finalised when the full amount was
paid on 25
th
July 2009, and that the only outstanding
things were the bringing of the cow and Richelieu brandy by the
appellant’s family.
[8]
The respondent conceded that that their initial agreement or
understanding was that she and appellant
will eventually enter into a
civil marriage rites. The respondent conceded that she is the one who
had made an appointment with
a notary regarding the ANC, but that
those attorneys were suggested to her by the appellant. Further that
she is the one who had
laid out the process that then resulted in the
drafting of the ANC. That concluded the evidence of the respondent
and she closed
her case.
[9]
The appellant took the witness stand and testified under oath. He
testified that he and the respondent
were married to each other by
civil rites. Ahead of their marriage they have concluded an ANC,
which they have both signed it.
His wife’s sister-in-law and
brother-in-law have both signed the ANC as their witnesses. The
customary union between him
and the respondent was not concluded on
the day of the lobola negotiations, because it has always been their
intention to enter
into a civil marriage. In his understanding, the
customary marriage between him and the respondent was going to be
concluded on
the day an ox and other outstanding things were brought
to the respondent’s homestead. Before you go to Home Affairs
Department
to sign the civil marriage, you first had to observe the
proper cultural processes. He had been living with the respondent as
husband
and wife since 2009.
[10]
The appellant was cross-examined and he conceded that during 2009 he
paid the lobola amount in the sum of
R20 000.00. On finalisation of
the negotiations, there will be an ox which will be slaughtered, and
his emissaries (appellant’s)
will take a portion of that ox as
well as sorghum beer to the appellant’s homestead. He and the
respondent have been staying
together since 2005. The appellant
denied that the lobola negotiation started in 2007 and concluded in
2009. The appellant disputed
that in 2015 when he and the respondent
signed the ANC before a notary, they have already entered into a
customary marriage. That
concluded the evidence of the appellant, and
he closed his case.
[11]
The court
a quo
found in favour of the respondent, made orders
finding that (i) the customary union between the appellant and
respondent contracted
on 25
th
July 2009 was declared to be
valid and effect in terms of the Recognition of Customary Marriages
Act 120 of 1998; (ii) the civil
marriage contracted on 27
th
January 2015 was declared null and void; (iii) decree of divorce was
granted; and (iv) equal division of the joint estate. The
appellant
is appealing against the whole of the judgment and order of the court
a
quo
.
[12]
The parties are agreement that their marriage relationship has
irretrievably broken down and there is no
prospect of restoration of
a normal marriage relationship, and are therefore seeking a decree of
divorce. What was contentious
was the ANC. Even though the parties
during their oral evidence in the court
a quo
have spent quite
some time on whether they intended their matrimonial regime to be
customary or civil, they were not seeking any
relief on that issue.
The respondent in her plea had stated that the parties have entered
into a customary marriage on 25
th
July 2009 which marriage
regime was changed on 27
th
January 2015 in terms of
section 10 of the Recognition of the Customary Marriages Act 120 of
1998 into a civil marriage. Counsel
for the respondent had submitted
that the parties were entitled to change their matrimonial regime.
Therefore, the issue whether
the parties were married by customary or
civil rites was no longer contentious, except for the validity of the
ANC.
[13]
The court
a quo
in its judgment has found that there were two
issues to be determined which were (i) whether a valid customary
marriage was concluded
between the parties on 25
th
July
2009; and whether the parties’ subsequent civil marriage out of
community of property concluded on 27
th
January 2015 was
valid. The issues which the court
a quo
has determined, were
issues which were not in dispute. From the parties’ papers and
opening address, the issue which the
court
a quo
was called
upon to determine was the validity of the ANC. The court
a quo
in its judgment never dealt with this issue. Order 1 and 2 of the
judgment of the court
a quo
, were orders which the parties
never sought. The remainder of the orders granted by the court
a
quo
were based on orders which were never sought by the parties.
[14]
In
Fischer
and Another v Ramahlele and Others
[1]
Theron JA and Wallis JA said:
“
[13] Turning then
to the nature of civil litigation in our adversarial system it is for
the parties, either in pleadings or affidavits
which serve the
function of both pleadings and evidence, to set out and define the
nature of their dispute and it is for the court
to adjudicate upon
those issues. That is so even where the dispute involves an issue
pertaining to basic human rights guaranteed
by our Constitution for
‘it is impermissible for a party to rely on a constitutional
complaint 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 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 dispute and for the court
to determine that dispute and that dispute alone.
[14] It is not for the
court to raise new issues not traversed in the pleadings or
affidavits, however interesting, or important
they may seem to it,
and to insist that the parties deal with them. The parties may have
their own reasons for not raising those
issues. A court may sometimes
suggest a line of argument or approach to a case that has not
previously occurred to the parties.
However, it is for the parties to
determine whether they wish to adopt a new point. They may choose not
to do so because of its
implications for the further conduct of the
proceedings, such as an adjournment or the need to amend pleadings or
to call additional
evidence. They may feel that their case is
sufficiently strong as it stands to require no supplementation. They
may simply wish
the issues already identified to be determined
because they are relevant to future matters and the relationship
between the parties.
That is for them to decide and not the court. If
they wish to stand by the issues they have formulated, the court may
not raise
new ones and compel them to deal with matters other than
those they have formulated in pleadings or affidavits”.
[15]
Counsel for both parties in their opening address have made it clear
to the court
a quo
that the critical issue to be determined
was the validity of the ANC, and that even if there was a slight
difference in relation
to the conclusion of the customary marriage
and civil marriage, that rift was not a critical issue
to be
decided by the court
. Counsel for the respondent even went
further to state that the parties were entitled to change their
marriage from customary to
civil marriage. The parties have defined
the nature of the dispute to be adjudicated by the court
a quo,
and it was for the court
a quo
to determine the dispute
pleaded and identified by the parties, and not beyond that.
[16]
The court
a quo
has failed to determine the dispute identified
by the parties, but chose to deal with issues that were not in
dispute. The court
a quo
has therefore misdirected itself and
on that point alone the appeal stands to be upheld. The question is
whether this matter should
be remitted back to the court
a quo
to deal with the issue of the validity of the ANC since it was never
dealt with. Both parties are in agreement that their marriage

relationship has irretrievably broken down and there are no
reasonable prospects of restoration of a normal marriage relationship

between them. It will therefore be in the best interest of justice
and the parties if the appeal is finalised without remitting
it back
to the court
a quo
.
[17]
The requirements for a valid ANC is that both spouses must sign the
ANC before a notary, and in the presence
of two witnesses. The
appellant and the respondent have signed their ANC before a notary
and two witnesses. There are no issues
whether the two witnesses were
competent or not. The ANC was signed on 27
th
January 2015
the same date the parties entered into their civil marriage, and was
duly registered on 11
th
February 2015. The parties ANC
read as follows:
“
The parties
declared that since they have agreed to enter into marriage with each
other and intend that such marriage be so concluded
between them,
they have agreed and now therefore contract with each other:
1.That there shall be no
community of property, or profit and loss, between them, but that he
or she respectively retain and possess
all his or her estate and
effects, movable and immovable, in possession, reversion, expectancy
or contingency, as fully and effectually
as if the said intended
marriage did not take place.
2.That the marriage shall
not be subject to the accrual system in accordance with chapter I of
the Matrimonial Property Act 88 of
1994.
3.That the one of them
shall not be answerable for the debts and engagement of the other of
them, whether contracted before or after
the said intended marriage.
4.That all inheritances,
legacies, gifts, or bequests, which may devolve upon, or be left,
given or bequeathed to either of them,
shall be the sole and
exclusive property of him or her upon or to whom the same shall
devolve, or be left, given or bequeathed.
5.That each of them shall
be at full liberty to dispose of his or her property and effects by
will, codicil or other testamentary
disposition, as he or she may
think fit, without the hinderance or interference in any manner of
the other of them”.
[18]
The ANC regulates the parties’ matrimonial regime whilst the
marriage is still in force. In
B
v B
[2]
Kgoele AJA said:
“
The primary
objective of the ANC is not to create obligations, but to determine
the matrimonial property system between spouses
by excluding or
varying the normal patrimonial consequences of the marriage. Regarded
in this light, the ANC is by no means a contract”.
[19]
The appellant and the respondent had determined their matrimonial
property system as per their signed ANC.
The court take judicial
notice that in black culture, it is normal for the parties to first
negotiate lobola and finalise those
negotiations before the parties
goes to conclude their civil marriage in church or at the Home
Affairs. When they go to church
or Home Affairs to conclude their
civil marriage it does not mean that they are changing their
matrimonial regime from customary
to civil. What it entails is that
the parties have first observed their custom before concluding the
civil marriage. It is also
common in black culture for lobola
negotiations to take some years before they are formally concluded.
It is therefore not surprising
that the parties have commenced their
lobola negotiations on 25
th
July 2009, but only concluded
their civil marriage on 27
th
January 2015.
[20]
In terms of section 3 of the
Recognition
of Customary Marriage Act
[3]
the requirements for a valid customary marriage are that the
prospective spouses must be above the age of 18 years; must both
consent to be married to each other under customary marriage; and the
marriage must be negotiated and entered into or celebrated
in
accordance with customary law. There is no evidence that parties have
consented to be married to each other under customary
marriage. In
fact, they have both testified that it was their
understanding/intention that they were going to enter into a civil

marriage. Even the minutes of the lobola negotiations shows that on
the day the R20 000.00 which was the lobola amount was paid,
there
were some outstanding things which were postponed for a future date.
From the record of the proceedings in the court
a
quo
, it
does not appear when those outstanding things were complied with.
Whether they were ever complied with or not, it was not a
bar to the
parties to enter into a civil marriage. It was therefore not
surprising that the parties have agreed that the issue
to be
determined by the court
a
quo
was
the validity of the ANC.
[21]
A party that is challenging an ANC must show that the ANC is
contradictory and incoherent. In terms of the
wording of clause 1 of
the parties’ ANC, their estate was nil at commencement of their
civil marriage, contrary to what the
respondent had pleaded in her
claim in reconvention that it did not record the net commencement
value of the parties’ respective
estate. There was no change in
the appellant’s and respondent’s matrimonial regime, and
it was not necessary for the
parties to approach the high court when
they concluded their ANC. The respondent when testifying in the court
a quo
, did not seriously challenge the validity of the ANC. No
evidence was presented in what way was the ANC contradictory or
incoherent
if ever it was. This court is therefore satisfied that the
parties have determined their matrimonial property system as per
their
ANC, and the respondent has failed to show in what respect is
their ANC is invalid. The appellant’s and respondent’s

ANC concluded on 27
th
January 2015 and registered on 11
th
February 2015 remain intact and enforceable. It follows that the
appeal stands to be upheld.
[22]
In the result, the following order is made:
22.1 The appeal is upheld
with costs on party and party scale.
22.2 The order of the
court a quo is set aside and replaced with the following:
“
(a) A final
decree of divorce is granted;
(b) No order as to
division of the joint estate on account of the parties having entered
into a marriage out of community of property
– to the express
exclusion of the accrual system;
(c) Each party to pay
his/her own costs”.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTHAFRICA,
LIMPOPO DIVISION,
POLOKWANE
I AGREE
MATHABATHE AJ
ACTING JUDGE OF THE
HIGH COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
appellant:        Adv K Ramarumo
Instructed
by:

Legodi Attorneys
Counsel for the
respondent:    Phooko ME
Instructed
by:

Moloko Phooko Attorneys
Date
heard:

1
st
March 2024
Electronically
circulated on:    6
th
May
2024
[1]
[2014]
ZASCA 88
;
2014 (4) SA 614
(SCA); 2014 3 All 395 (SCA) (4 June 2014)
at paras 13 and 14
[2]
[2022]
ZASCA 123
;
2023 (1) SA 381
(SCA) (22 September 2022) at para 8
[3]
120
of 1998