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2024
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[2024] ZAFSHC 378
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R.V.B v J.V.B [2024] ZAFSHC 378; 2025 (4) SA 297 (FB) (19 November 2024)
FLYNOTES:
FAMILY – Divorce –
Redistribution
order
–
Antenuptial
contract where community of property excluded – Effect of
Constitutional Court order in
EB
–
Appellant
seeking to amend her counter-claim by introducing a claim for
redistribution order – Court a quo held that
the order
in
EB
found
no application – Proper interpretation of the order –
Entitles spouse in pending litigation to rely on claim
of
redistribution – Appellant granted leave to amend her
counter-claim –
Divorce Act 70 of 1979
,
section 7(3).
IN THE HIGH COURT OF
SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
Appeal no: A92/2024
Court a quo case no:
FS/WL/RD/118/2021
In
the appeal between:
RVB
APPELLANT
And
JVB
RESPONDENT
Neutral
citation:
RVB v JVB
(A92/2024) [2024] ZAFSHC (19 November 2024)
Coram:
Chesiwe J
et
Greyling-Coetzer AJ
Heard:
28 October 2024
Delivered:
19 November 2024
Summary:
Section 7(3)
of the
Divorce Act 70 of 1979
–
application of constitutional invalidity – Constitutional Court
order entitles spouse in pending litigation to rely
on claim of
redistribution.
ORDER
1.
The appeal is upheld with costs.
2.
The order of the court a quo is set aside and
replaced with the following:
‘
1.
The applicant’s application to amendment her counter-claim is
granted.
2. The applicant as
defendant in the main action is granted leave to amend her
counter-claim as set out in her notice of amendment
in terms of
Rule
55A
dated the 12
th
day of September 2023.
3. The cost of this
application shall be cost in the main action.’
JUDGMENT
Greyling-Coetzer AJ
(Chesiwe J concurring)
[1]
This appeal concerns the dismissal of an
application to amend a counter-claim, which amendment sought to
introduce a claim for transfer
of assets (a redistribution order) as
contemplated in s 7(3) of the Divorce Act 70 of 1979 (Divorce Act),
the core enquiry being
whether the appellant was entitled to
introduce such a claim.
[2]
The parties married each other on 17 October
2009. They concluded an antenuptial contract in terms of which
community of property,
community of profit and loss and accrual
sharing in any form were excluded, as contemplated in Chapter I of
the Matrimonial Property
Act 88 of 1984 (Matrimonial Property Act).
[3]
The respondent during April 2021 instituted
divorce proceedings. The appellant in opposing the divorce
proceedings, delivered a
counter-claim in terms of which she admitted
the applicable marriage regime and claimed no relief pertaining to
proprietary consequences
of the marriage on the strength of the
governing matrimonial regime.
[4]
During
September 2023, the appellant sought to amend her counter-claim by
introducing a claim for a redistribution order on the
basis of
s 7(3)
of the
Divorce Act, read
with the court order declaring
s 7(3)
(a)
of the
Divorce Act inconsistent
with the Constitution as granted in
GKR
v Minister of Home Affairs and Others
[1]
(
GKR
)
on 11 May 2022.
[5]
In
GKR
the
court declared
s 7(3)
(a)
of
the
Divorce Act inconsistent
with the Constitution and invalid to the
extent that the provision limits the operation of
s 7(3)
of the
Divorce Act to
marriages out of community or property entered into
before the commencement of the
Matrimonial Property Act. The
order
was referred to the Constitutional Court for confirmation.
[6]
The respondent objected to the proposed amendment
on the grounds that the appellant attempted to withdraw an admission;
the appellant
attempted to incorporate aspects into the pleadings
which are not presently prevailing law; and that the appellant sought
legal
aid on a basis which the court was not competent to give.
[7]
On 10
October 2023 the Constitutional Court in
EB
v ER N.O and Others and a Similar Matter
[2]
(
EB
)
confirmed the order of invalidity as granted in
GKR
.
[8]
The application to amend was heard during March
2024. In light of the confirmation of the order of invalidity in
GKR
by the Constitutional Court in
EB
,
argument before the court
a quo
focused on the court order in
EB
.
It is opposite to mention that the amendment was not brought during
the trial proceedings but before the matter was enrolled for
hearing,
therefore before any evidence had been led by either party.
[9]
The Court
a quo
dismissed the application to amend the
counterclaim with costs on an attorney-and-client scale, immediately
taxable and payable.
The basis for said dismissal can succinctly be
summarised as follows:
(a)
the Court
a quo
found that the applicable marital regime was
an admitted fact and that the whole purpose of the proposed amendment
is to negate
the existence of the prenuptial contract, to bring in an
accrual or to later make a distribution order, which will be
prejudicial
to the respondent;
(b)
para 5 of the order in
EB
limits the retrospective effect of
para 4 of the order, therefore it has no effect on antenuptial
contracts which have been concluded
prior to 10 October 2023;
(c)
the claim the appellant sought to introduce is not prevailing law and
will only become prevailing
law in the future; and
(d)
the Constitutional Court’s order in
EB
finds no
application.
Amendment as sought
by the Appellant in the Court a quo
[10]
The appellant did not seek to withdraw the
admission that the parties were married out of community of property
in terms of an antenuptial
contract which excluded accrual sharing.
This fact remains common cause between the parties. Rather, the
appellant sought to introduce
a claim for a redistribution order on
the strength of the invalidity orders in
GKR
and
EB.
[11]
Prior to
GKR
and
EB
,
a claim for redistribution of assets upon divorce was only available
to a spouse who sought a decree of divorce in respect
of three
distinct types of marriages out of community of property, the first
being a marriage out of community of property
which was entered into
before the commencement of the
Matrimonial Property Act 88 of 1984
;
the second a marriage out of community of property entered into in
terms of s 22(6) of the Black Administration Act 38 of 1927
as it
existed immediately prior to its repeal by the Marriage and
Matrimonial Property Law Amendment Act 3 of 1988; and lastly
a
marriage out of community of property entered into in terms of any
law applicable in a former homeland without entering into
an
antenuptial contract tor agreement in terms of such law. This matter
only concerns the first class of marriage, thus one entered
into
before 1 November 1984.
[12]
Section
7(3)
of the
Divorce Act empowers
a court on divorce of the above
three types of marriage to direct that assets of one party to be
transferred to the other if the
court is satisfied that it is just to
do so subject to
ss 7(4)
,
7
(5) and
7
(6) of the
Divorce Act.
Therefore
, unless a spouse succeeds in persuading the court
that it is just and equitable that said spouse be awarded some of the
property
of the other spouse, the other spouse will retain ownership
of all the property acquired during the course of the marriage.
[3]
The
court has a wide discretion and may consider an interminable number
of factors.
[13]
The
application of
s 7(3)
(a)
does
not change the matrimonial property regime agreed to by the parties,
but provides basis for relief in certain carefully circumscribed
instances to spouses who contributed directly or indirectly to the
maintenance or increase of the estate of their spouses whilst
married
out of community of property with the exclusion of the accrual system
on the date when the marriage relationship is terminated
by divorce.
Neither does
s 7(3)
provide a claim to a spouse or a judicial
discretion to a divorce court to create a system of accrual that the
parties themselves
did not create, or to redistribute the spouse’s
assets in a way that seems fair.
[4]
However,
s 7(3)
does address the unfair financial imbalance flowing
from the nature of the marriage being out of community of property in
circumstances
where one party contributed to the other’s
maintenance, or to the increase of the other’s estate during
the subsistence
of the marriage.
[5]
Appellant’s
entitlement to introduce a redistribution claim in light of the
orders in GKR and EB
[14]
The
order granted by the Constitutional Court in
EB
[6]
read
as follows:
‘
1.
The High Court’s order of
constitutional invalidity is confirmed.
2.
Paragraph (a) of ss 7(3) of the Divorce Act 70 of 1979 (Divorce Act)
is declared
inconsistent with the Constitution and invalid to the
extent that it fails to include marriages concluded on or after the
commencement
of the Matrimonial Property Act 88 of 1984 (Matrimonial
Property Act).
3.
The declaration of invalidity is suspended for a period of 24 months
from the
date of this order to enable parliament to take steps to
cure the constitutional defects identified in this judgment.
4.
Pending
any remedial legislation as contemplated in para 3
above, para (a) of
ss7(3)
of the
Divorce Act is
to be read as
excluding the words in strike out text below:
“
(a)
entered into
before
the commencement of the
Matrimonial Property Act, 1984
,
in terms of an antenuptial contract by which community of property,
community of profit and loss and accrual sharing in any form
are
excluded;”
5.
The order in para 4 above
shall not affect the legal consequences
of any act done or omission or fact existing before this order was
made in relation to a
marriage concluded on or after 1 November 1984
.
6.
Pending any remedial legislation as contemplated
in para 3 above . .
.’ (Own underline.)
[15]
Central
in this appeal is the effect of para 5 of the Constitutional Court
order in
EB
.
In considering same, it is necessary to have regard to the Doctrine
of Objective Constitutional Invalidity. This Doctrine was
laid out in
Ferreira
v Levin N.O. and Others; Vryenhoek and Others v Powell N.O. and
Others
[7]
(
Ferreira
).
The court held that finding a law to be in conflict with the
Constitution ‘does not invalidate the law; it merely declares
it to be invalid.’
[8]
Thus, a law that has been found to be inconsistent with the
Constitution ceases to have any legal consequences.
[16]
Although
Ferreira
was
written at a time when the interim Constitution applied, it matters
not, as the underlying legal principle remains. That said,
there is a
marked difference in respect to the point of departure between the
interim Constitution and final Constitution. In terms
of the interim
Constitution,
[9]
an order of
invalidity could be ordered to be retrospective, but if nothing was
said, it would in the case of pre-constitutional
legislation, operate
prospectively only.
[17]
The position has been reversed in terms of the
final Constitution. The current position is that the Constitution
assumes the full
retrospective effect of constitutional invalidity
and empowers the court declaring the invalidation to limit its
retrospective
effect. Section 172(1) of the Constitution provides as
follows:
‘
(1)
When deciding a constitutional matter within its power, a court –
(a)
must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency; and
(b)
may make an order that is just and equitable,
including –
(i)
an order limiting the retrospective effect of the
declaration of invalidity; and
(ii)
an order suspending the declaration of invalidity
for any period and on any condition, to allow the competent authority
to correct
the defect.’
[18]
This
specific provision was necessary, as a statute enacted before the
inception of the Constitution when found to be inconsistent,
and
invalid by reason of its inconsistency, such inconsistency will date
back to the inception of the Constitution. In limiting
retrospectivity, the disruptive effects of the retrospectivity is
balanced against the need to grant effective relief to an applicant
and others in a similar situation.
[10]
Considering the Constitutional Court order in
EB
,
it is manifest that the order suspended the effect of invalidity for
24 months, expressly provided immediate interim relief and
limited
the retrospective effect of the invalidity.
[19]
Proper
interpretation of an order of court entails considering the legal
context within which the words in the order were used,
together with
the whole of the judgment that informed such an order.
[11]
The reasons for ordering suspension or limiting retrospectivity could
be bound up in the reasoning of the judgment.
[12]
[20]
A court’s discretion to suspend the effect
of an order of invalidity or to limit retrospectivity entails the
exercise of a
wide power and can be utilised for several reasons,
provided that it is just and equitable to do so.
Acting in terms of
Section 172(1)(b) and (1)(b)(ii)
[21]
Paragraph
3 of the Constitutional court order in
EB
suspends
the declaration of invalidity. The court further granted just and
equitable relief to cater for the period pending the
24-months’
suspension by ordering that set out in para 4, thereby providing for
immediate relief as from the date of the
Constitutional Court
order.
[13]
[22]
As from 10 October 2023,
s 7(3)
of the
Divorce Act
should
be read to say:
‘
(3)
A court granting a decree of divorce in respect of a marriage out of
community of property–
(a)
entered
into, in terms of an antenuptial contract by which community of
property, community of profit and loss and accrual sharing
in any
form are excluded; or … may, subject to the provisions of
subsection (4), (5) and (6), on application by one of the
parties to
the marriage, in the absence of an agreement between them regarding
the division of their assets, order that such assets,
or such part of
the assets, of the other party as the court may deem just be
transferred to the first mentioned party . . .’
[23]
Therefore
s 7(3)
of the
Divorce Act shall
find
application in all divorce proceedings in respect of marriages out of
community of property in terms of which an antenuptial
contract
excludes community of property, community profit and loss and accrual
sharing in any form. Aforesaid can conveniently
be described as the
immediate prospective application that the declaration of invalidity
would have.
Acting in terms of
Section 172(1)(b)(i)
[24]
The Constitutional Court in
EB
then proceeded to limit the retrospective effect
of the declaration of invalidity by ordering per paragraph 5 that the
order in
paragraph 4 (immediate prospective application) shall not
affect the legal consequences of any act done or omission or fact
existing
before this order was made in relation to a marriage
concluded on or after 1 November 1984.
[25]
The court
a quo
reasoned that the immediate prospective
application is limited to antenuptial contracts to be concluded post
10 October 2023 and
had no effect on an antenuptial contract which
had already been concluded. It appears that the court
a
quo
found the wording ‘shall not
affect the legal consequences of any act done or omission or fact
existing before this order
was made’ to relate to the existence
of an antenuptial contract and the legal consequences thereof. In
doing so, the court
a quo
lost
sight thereof that the antenuptial contract and the ordinary legal
consequences thereof, remains intact as dealt with earlier
in this
judgment.
[26]
Properly construed, para 5 of the Constitutional
Court order limits the retrospective application of the invalidity to
matters where
a final decree of divorce had already been granted,
alternatively where the marriage has terminated through the death of
a spouse.
The immediate prospective application cannot found a basis
to undo that which had been done at the termination of the marriage
either by death or by divorce before the date of the order. If the
Constitutional Court wanted to exclude pending matters from its
order
of perspectivity, it would have done so in explicit terms and
reasons.
[27]
The constitutional challenge in
GKR
and
EB
related to pending divorce proceedings in respect
of a marriage concluded in terms of an antenuptial contract excluding
the accrual,
which marriage was concluded after November 1984, but
obviously before the Constitutional Court order was granted. The very
basis
of the constitutional challenge was the differentiation found
in
s 7(3)
of the
Divorce Act in
respect of the date of marriage.
[28]
While there are sound reasons of policy not to
make an order of invalidity applicable to cases that have been
determined under an
invalid law, the same is not ordinarily so in
respect of pending cases where parties’ patrimonial
consequences had yet to
be determined.
[29]
It was
held in
GKR
[14]
that
s 7(3)
of the
Divorce Act provides
a power to be exercised by
the court at the time of divorce. It is only at the time of divorce
that
Section 7(3)
of the
Divorce Act is
triggered. Although the
conclusion of an antenuptial contract regulates the legal
consequences in respect of the parties’
respective estates
vis-à-vis third parties during the subsistence of the
marriage, the exercising of the parties’
rights pertaining to
the division of their assets is deferred until the dissolution of the
marriage.
[30]
In
GKR
the
applicant contended that it was critical that an order made by the
court provides for the order to apply to the applicant’s
pending divorce action, as well as other similarly placed spouses
where divorce proceedings are still pending.
[15]
The state respondents’ stating that full retrospective
force, will cause considerable uncertainty in respect of divorce
orders that have already been granted.
[16]
In reply, on behalf of the applicant, it was submitted that it would
be just and equitable to limit the retrospectivity so that
it does
not affect divorce proceedings that have been finalised.
[17]
[31]
The
court in
GKR
[18]
held that as in
Gumede
v President of the Republic of South Africa
[19]
it was necessary to emphasize that nothing in the order the court was
intendant on making would affect marriages out of community
of
property with the exclusion of the accrual system concluded after 1
November 1984, that have been terminated either by death
or by
divorce before the date of this order.
[32]
The
court in
GKR
[20]
then proceeded in para 3 of the order to give effect thereto by
stating
‘
In
terms of Section 172(1)(b) of the Constitution, the orders in
paragraphs 1 and 2 of this order shall not affect the legal
consequences
of any act done or omission or fact existing in relation
to a marriage out of community of property with the exclusion of the
accrual
system concluded after 1 November 1984, before this order was
made.’
[33]
In
EB
[21]
the Constitutional Court expressly held that it would be appropriate
to suspend the declaration of invalidity for 24 months with
an
interim severance of the offending differentiation in s 7(3)
(a)
so as
to grant immediate effective relief. There is simply no room to
conclude that the Constitutional Court granted relief only
to the
parties before it and sought to exclude similarly placed spouses.
[34]
The
Constitutional Court in
EB
confirmed
the constitutional invalidity, including a suspension of the
invalidity,
[22]
yet phrased
para 5 of its order in an identical fashion, thereby confirming the
rationale behind same and aligned itself with the
court in
GKR
.
[35]
Paragraph 5 of the Constitutional court order in
EB
properly
construed does not limit the application of para 4 of the
Constitutional Court order in
EB
to pending divorce proceedings. Paragraph 5 of the
Constitutional court order in
EB
only limits the retrospective application to
marriages which have already been terminated by means of either death
or divorce, prior
to the date of 10 October 2023.
[36]
It is necessary to comment on the appealability of
the order. Although the order of the court a quo refusing the
amendment might,
at face value, not be definitive in a general sense,
it is final in effect relating to the entitlement of the appellant to
introduce
a claim for redistribution. The order of the court
a
quo
was misdirected in its enquiry and
the order cannot remain extant. In addition, neither party
raised the appealability of
the order as an issue in dispute between
the parties, calling for determination.
[37]
As regards the costs of the application for
amendment, these are usually born by the applicant seeking the
amendment. However
considering that the matter relates to matrimonial proceedings still
pending, it would be appropriate to order
the cost of the application
for the amendment to be cost in the main action.
Regarding
the cost of appeal, the general principle that costs are to follow
the event, is justified.
[38]
For the reasons set out above, the appeal should
succeed. Consequently, the following order is made:
1.
The appeal is upheld with costs.
2.
The order of the court a quo is set aside and replaced with the
following:
‘
1.
The applicant’s application to amendment her counter-claim is
granted.
2. The applicant as
defendant in the main action is granted leave to amend her
counter-claim as set out in her notice of amendment
in terms of Rule
55A dated the 12
th
day of September 2023.
3. The cost of this
application shall be cost in the main action.’
GREYLING-COETZER AJ
I concur and it is so
ordered
CHESIWE J
Appearances:
For
the Appellant:
Adv.
SJ Reinders
Instructed
by:
Podbieslki
Inc
c/o
Honey Attorneys
For
the Respondent:
Adv.
CM Oberholzer
Instructed
by:
ABK
Attorneys
c/o
Bezuidenhouts Inc
[1]
GKR
v Minister of Home Affairs and Others
[2022]
ZAGPPHC 311; 2022 (5) SA 478 (GP).
[2]
EB
v ER N.O and Others and a Similar Matter
[2023]
ZACC 32
;
2024 (2) SA 1
(CC). This matter is often cited
alternatively as
EB
(born S) v ER (born B) and Others; KG v Minister of Home Affairs and
Others
[2023]
ZACC 32; 2024 (1) BCLR 16 (CC).
[3]
Gumede
v The President of the Republic of South Africa and Others
[2008]
ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC).
[4]
R
Robinson and Horsten D ‘The quantification of labour of love:
Reflection on the constitutionality of the discretion of
a court to
redistribute capital assets in terms of Section 7(3) to (6) of the
South African
Divorce Act’ (2010
)
Speculum
Iuris
at
96/117.
[5]
Ibid
at
97-98.
[6]
Footnote
2 para 150.
[7]
Ferreira
v Levin N.O. and Others; Vryenhoek and Others v Powell N.O. and
Others
[1995]
ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) paras 25-30.
[8]
Ibid para 27.
[9]
Section
98(6) of the Interim Constitution reads as follows: ‘Unless
the Constitutional Court in the interest of justice
and good
governance orders otherwise, and save to the extent that it is so
ordered, the declaration of invalidity of a law or
a provision
thereof –
(a)
existing at the commencement of this
Constitution, shall not invalidate anything done or permitted in
terms thereof before the
coming into effect of such declaration of
invalidity;
(b)
passed after such commencement, shall invalidate
everything done or permitted in terms thereof.’
[10]
Britton
v Minister of Justice and Correctional Services and Others
[2024]
ZASCA 148
para 23.
[11]
Cross
Border Road Transport Agency v Central African Road Service (Pty)
Ltd and Another
[2015]
ZACC 12
;
2015 (5) SA 370
(CC);
2015 (7) BCLR 761
(CC) para 22.
[12]
Ibid
para 25.
[13]
Such
date being 10 October 2023.
[14]
Footnote
1
para
31.
[15]
Ibid
para 63.
[16]
Ibid
para 64.
[17]
Ibid
para 64.
[18]
Ibid
para 68.
[19]
Gumede
v President of the Republic of South Africa
[2008]
ZACC 23
;
2009 (3) SA 152.
[20]
Footnote
1 para 71.
[21]
Footnote
2 para 147.
[22]
which
was not aligned with the order in GKR