THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1235 /22


In the matter between:
DOMINIQUE CAMILLA MANELIS APPLICANT
and
CONSTANTINOS CHARLES MANELIS RESPONDENT

Neutral citation: Mane lis v Manelis (Case no 1235/22) [2025] ZASCA 55
(9 May 2025 )
Coram: ZONDI AP , KEIGHTLEY and COPPIN JJA and PHATSHOANE
and BLOEM AJJA
Heard: 17 February 2025
Delivered: 9 May 2025
Summary: Divorce – accrual system – effect of the declar ation of the net value
of a party’s estate at the commencement of his or her marriage in an antenuptial
contract or statement in terms of s 6 of the Matrimonial Property Act 88 of 1984
– difference between antenuptial contract and statement made in terms of s 6 –
declaration of commencement value made in an antenuptial contract as opposed
to in a statement – prima facie or conclusive proof of the net value of the estate
of the spouse concerned at the commencement of his or her marriage –
determination of the accrual of the estate of a spouse at the dissolution of the
marriage.

2


ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Strydom J,
sitting as court of first instance ):
1 The application for leave to appeal is granted.
2 The appeal is dismissed with costs, such costs to include the costs of:
2.1 the application for leave to appeal; and
2.2 two counsel, where so employed.
3 The applicant shall pay the costs of the application for condonation for the
late lodging of the appeal record.

JUDGMENT

Bloem AJA ( Zondi AP, Keightley and Coppin JJA and Phatshoane AJA
concurring )

[1] This is an application for leave to appeal and, if granted, the determination
of the appeal itself , as contemplated in s 17(2) (d) of the Superior Courts Act 10 of
2013 (the Superior Courts Act) . The parties were married to each other out of
community of property, subject to the accrual system. On 15 September 20 15, the
applicant, as plaintiff, instituted an action in the Gauteng Division of the
High Court , Johannesburg (the high court) against the respondent, as defendant ,
wherein she sought a decree of divorce , together with ancillary relief.

[2] The focus of this application is the patrimonial aspects of that relief. The
relief claimed included a prayer for an order directing the respondent to furnish
the applicant with a statement of account, supported by documents, as to the value
of his estate at the commencement of their marriage , as recorded in their
3

antenuptial contract. The purpose of this relief was to support a debatement of the
statement of account. Allied to this, the applicant sought an order declaring that
the respondent was bound by the commencement value of his estate as
determined pursuant t o that debatement. Finally, the relief included a prayer that
the respondent pay to the applicant half of the difference between the accrual of
their respective estates .

[3] On 24 March 202 2, the high court granted a decree of divorce , an order
dealing with the primary residence and maintenance of the parties’ minor son and
their parental rights and obligations , as well as an order that the respondent pay
rehabilitative maintenance to the applicant . The only out standing issue , namely,
whether an accrual was payable by the respondent to the applicant in terms of the
provisions of the ir antenuptial contract, read with the provisions of the
Matrimonial Property Act 88 of 1984 (the MPA) was postponed for determination
on a later date .

[4] On 29 June 2022, the high court dismissed the applicant’s claim for accrual
with costs.1 On 3 November 2022, it dismissed he r application for leave to appeal
with costs. On 1 February 2023, two judges of this Court , who considered the
application for leave to appeal, referred her application f or leave to appeal for the
hearing of oral argument in terms of s 17(2) (d) of the Superior Courts Act and
ordered the parties to be prepared, if called upon to do so, to address th is Court
on the merits of the appeal.

The issues
[5] Three issues must be determined in this appeal. The first issue is which
party should be ordered to pay the costs occasioned by the application for
condonation for the late lodging of the appeal record. The second issue is whether

1 That judgment has been reported sub nom DM v CM 2022 (6) SA 255 (GJ ).
4

the applicant should be granted leave to appeal. The third issue is, if leave to
appeal is granted , whether the applicant has an accrual claim against the
respondent’s estate .

Condonation
[6] In terms of rule 8(1) of the Rules of th is Court, the applicant was required
to have lodge d six copies of the record of the proceedings in the high court (the
record) with the registrar of this Court on or before 2 May 2023 . The parties
agreed in terms of rule 8(2) to extend the period for the lodging of the record until
6 Novem ber 2023 . The record and an application for condonation for the late
lodging of the record were indeed lodged on that day . The application for
condonation was initially opposed by the respondent, although he did not persist
with his opposition at the hearing. What remained in dispute was who should pay
the costs occasioned by the application for condonation .

[7] The delay of six months is substantial and require d a satisfactory
explanation. The applicant’s attorney sought to blame the respondent and his
attorney for the delay in the finalisation of the record , despite having no reason
to do so . A reading of the affidavits shows that the respondent’s attorney assisted
the applicant’s attorney with the preparation of the record and that it was the
inaction of the applicant’s attorney that cause d the inordinate delay in the lodging
of the record. The applicant s ought an indulgence. Because the applicant and her
attorney did not prepare the record with the necessary speed , thereby causing the
delay, it is appropriate to order the applicant to pay the costs of the application
for condonation for the late lodging of the record .

Leave to appeal
[8] In terms of s 17 (1)(a) of the Superior Courts Act , leave to appeal may only
be given where the judge or judges concerned are of the opinion that the appeal
5

would have a reasonable prospect of success; or there is some other compelling
reason why the appeal should be heard, including conflicting judgments on the
matter under consideration . There are indeed conflicting judgments on the central
issue to be determined in this appeal. There is accordingly a need for uniformity
on the interpretation of s 6(3) of the MPA . Leave to appeal should, for that reason,
be granted to the applicant.

The central issue in the appeal
[9] The central issue in this appeal is whether there has been an accrual in the
respondent’s estate between the commencement of his marriage and the
dissolution thereof . What needs to be determined first is whether , on a proper
interpretation of s 6(3) of the MPA , the parties are bound by the value of the
respondent’s estate at the commencement of his marriage, as declared by him in
the antenuptial contract that the parties concluded on 29 April 2009 . The applicant
contend s that they are not so bound, whereas the respondent contend s that the
commencement value is binding, and that it was not open to the applicant to
challenge its accuracy in the divorce proceedings. The second question to be
determined is whether the applicant discharged the onus of proving an accrual.

[10] In their antenuptial contract the applicant declared the net value of her
estate at the commencement of the marriage as nil and the respondent declared
his as R68.7 million . In the divorce proceedings, the applicant disputed the
accuracy of th e amount of R68.7 million on the basis that it was overstated.

[11] The applicant alleged that, based on an accurate calculation of the
commencement value of the respondent’s estate , the value of his estate at the
dissolution of the marriage exceeded the commencement value by approximately
R36 million . She accordingly claimed that she was entitled to half of that amount,
being approximately R18 million . The case presented by the respondent, on the
6

other hand, was that the value of his estate was calculated at approximately
R11.5 million at 4 October 2021. Thus, based on the declared commencement
value, his estate had substantially decreased during the marriage and there was
accordingly no accrual.

[12] The high court found that the parties were bound by the commencement
value of the respondent’s estate, as declared by him in the antenuptial contract. It
also found that there was no accrual because the net value of the respondent’s
estate at the dissolution of his marriage did not exceed the net value of his estate
at the commencement of his marriage.

Legislative framework
[13] Chapter 1 of the MPA provides for the accrual system. In terms of s 4(1) (a),
‘[t]he accrual of the estate of a spouse is the amount by which the net value of his
estate at the dissolution of his marriage exceeds the net value of his estate at the
commencement of that marriage ’. In terms of s 3(1), at the dissolution of the
marriage subject to the accrual system, by divorce or death of one or both of the
spouses, the spouse whose estate shows no accrual or a smaller accrual than the
estate of the other spouse, acquires a claim against the other spouse for an amount
equal to half of the difference between the accrual of the respect ive estates of the
spouses.

[14] Section 6 of the MPA is crucial to the consideration of the appeal. It reads
as follows:
‘6 Proof of commencement value of estate
(1) Where a party to an intended marriage does not for the purpose of proof of the net value
of his estate at the commencement of his marriage declare that value in the antenuptial contract
concerned, he may for such purpose declare that value before the marri age is entered into or
within six months thereafter in a statement, which shall be signed by the other party, and cause
the statement to be attested by a notary and filed with the copy of the antenuptial contract of
7

the parties in the protocol of the notary before whom the antenuptial contract was executed.
(2) A notary attesting such a statement shall furnish the parties with a certified copy thereof
on which he shall certify that the original is kept in his protocol together with the copy of the
antenuptial contract of the parties or, if he is not the notary be fore whom the antenuptial
contract was executed, he shall send the original statement by registered post to the notary in
whose protocol the antenuptial contract is kept, or to the custodian of his protocol, as the case
may be, and the last -mentioned n otary or that custodian shall keep the original statement
together with the copy of the antenuptial contract of the parties in his protocol.
(3) An antenuptial contract contemplated in subsection (1) or a certified copy thereof, or a
statement signed and attested in terms of subsection (1) or a certified copy thereof contemplated
in subsection (2), serves as prima facie proof of the net value of the estate of the spouse
concerned at the commencement of his marriage.
(4) The net value of the estate of a spouse at the commencement of his marriage is deemed
to be nil if -
(a) the liabilities of that spouse exceed his assets at such commencement;
(b) that value was not declared in his antenuptial contract or in a statement in terms of
subsection (1) and the contrary is not proved. ’

Conflicting judgments
[15] The applicant relies on s 6(3) for the contention that the antenuptial
contract that she concluded with the respondent serves only as prima facie proof
of the commencement value of the respondent’s estate and that she was entitled
accordingly to adduce evidence to rebut the value that he declared . There are
conflicting judgments of the high court on the interpretation of s 6(3). The one
line of cases is to the effect that the parties who concluded an antenuptial contract
wherein one or both declared the commencement value of one or both parties’
estates are bound by such declaration . The other line of cases is to the effect that
such an antenuptial contract serves merely as prima facie proof of the value of
the parties’ respective estate s at the commencement of the marriage.

8

[16] In Olivier v Olivier2 (Olivier) the husband rel ied solely on s 6(3) in support
of his contention that he was entitled to adduce evidence to prove that the
commencement value of his estate was higher than the value declared by him in
the antenuptial contract that he and his wife concluded before their marriage. The
court held that the husband was bound by the provisions of the antenuptial
contract and that, absent a claim for rectification, it was not open to him to adduce
evidence that the commencement value of his estate was other than that declared
in the antenuptial contract. In Jones and Another v Beatty NO and Others,3(Jones)
which was decided on exception, it was held that s 6(3) has no application where
parties declared the commencement value of their estate in the antenuptial
contract.

[17] A completely different conclusion was arrived at in Thomas v Thomas4
(Thomas ). The court found that s 6(3) must be interpreted to mean that where a
party to an intended marriage declares the commencement value of his estate in
an antenuptial contract, such antenuptial contract serves only as prima facie proof
of the commencement value of the estate of the spouse concerned.

[18] Thomas was not followed i n M v M5in which the court was required to
determine whether the husband could rely on s 6 (3) to prove that the
commencement value of his estate was not nil, as declared in the antenuptial
contract, but approximately R2.7 million . The court dismissed the husband’s
claim and declared that the commencement value of his estate was nil, and not
R2.7 million , as he contended. The full court6 upheld the decision in M v M .


2 Olivier v Olivier 1998 (1) SA 550 (D & CLD) ( Olivier ).
3 Jones and Another v Beatty NO and Others 1998 (3) SA 1097 (TPD) at 1100G -I.
4 Thomas v Thomas [1999] 3 All SA 192 (NC) ( Thomas ).
5 M v M (62488/15) [2016] ZAGPPHC 1220 (1 December 2016) ( M v M ).
6 NHM v HMM (A193/22017; 62488/2015) [2019] ZAGPPHC 1108 (13 September 2019) ( NHM v HMM ).
9

[19] In TN v NN and Others7 the court was called upon to determine the value
of the husband’s estate at the commencement of his marriage to his wife. The
commencement value of the husband’s estate was declared as R3 million in their
antenuptial contract . In the divorce action, the wife, relying on s 6(3), pleaded
that the commencement value of he r husband’s estate was no more than
R750 000. The court dismissed the wife’s claim , not because it was convinced
that the parties were bound by the declared value in the estate but, because she
failed to rebut ‘the prima facie probative effect of the declaration ’ of the
commencement value of her husband’s estate.8

[20] To summarise , Olivier , Jones , M v M and NHM v HMM held that where a
party declar es the commencement value of his estate in an antenuptial contract,
the parties to the intended marriage are bound by such declared value. On the
other hand, Thomas and TN v NN held that the Legislature did not intend the
declared value in an antenuptial contract to have binding contractual effect but
that such an antenuptial contract serves only as prima facie proof of the
commencement value of the estate of the spouse concerned. In TN v NN the court
went to the extent of stating that the clear intention of the Legislature is that,
whatever might have been declared or not declared by a party in an antenuptial
contract, should always be left open to any interested party to prove the actual
commencement value of the estate of the spouse concerned.9

Interpretation of s 6(3)
[21] South Africa has a matrimonial property system in which agreement and
choice are central.10 If the parties decide to marr y, they have a choice of getting
married in or out of community of property. Community of property comes into

7 TN v NN and Others 2018 (4) SA 316 (WCC) ( TN v NN ).
8 Ibid para 24 fn 7.
9 Ibid para 18 fn 7.
10 EB v ER NO and Others and a similar matter 2024 (2) SA 1 (CC) par a 108.
10

being as soon as a marriage is solemnised , unless the spouses have concluded an
agreement prior to the marriage, which agreement excludes community of
property.11 For parties to marry out of community of property , there must be an
agreement which is binding on them. Such an agreement finds expression in the
conclu sion of an antenuptial contract , which i s a contract in terms whereof the
parties to the intended marriage regulate the matrimonial property regime that
will apply to their marriage and other related matters.12

[22] The MPA was introduced in 1984 to amend the matrimonial property law.
It introduced the accrual system to marriages out of community of property . The
effect thereof is that ‘[e]very marriage out of community of property in terms of
an antenuptial contract by which community of property and community of profit
and loss are excluded … is subject to the accrual system … except in so far as
that system is expressly excluded by the antenuptial contract ’.13 The
determination of an accrual depends on proof of the value of a spouse’s estate at
the commencement of the marriage and the value of such a spouse’s estate at the
dissolution of the marriage. There is no accrual if the value of a spouse’s estate
at the dissolution of the marriage is equal to or less than the value at the
commencement of the marriage.

[23] Section 6 of the MPA deals with proof of the commencement value of the
estate of a party to an intended marriage. Without proof of the commencement
value, it would be impossible , at the dissolution of the marriage , to determin e the
accrual of a party’s estate. Section 6(3) refers to an antenuptial contract
contemplated in s 6(1) or a certified copy of such an antenuptial contract; or a
statement signed and attested in terms of s 6(1) or a certified copy of such a
statement contemplated in s 6(2) . In terms of s 6(3), such an antenuptial contract

11 Ex parte Andersson and Another 1964 (2) SA 75 (C) at 77B -78C.
12 F du Bois et al Wille’s Principles of South African Law 9th ed (2007) at 281.
13 Section 2 of the Matrimonial Property Act 88 of 1984 .
11

or a statement serves as prima facie proof of the value of the estate of the spouse
concerned at the commencement of his marriage. The crucial question to be
considered in this appeal is whether ‘the antenuptial contract contemplated in
section 6(1)’ means any antenuptial contract, including one in which a declaration
of commencement value is made, or whether it means only one in which no
commencement value is declared .

[24] The court in Olivier was inclin ed to the view that the words ‘contemplated
in subsection (1)’ were erroneously inserted in s 6(3). That inclination stems from
the submission that, if the antenuptial contract referred to in s 6(3) was to be
restricted to only an antenuptial contract in which the comme ncement value of a
party’s estate was not declared, such an interpretation would lead to an absurdity.
It was submitted that the absurdity lies therein that, if a party does not declare the
commencement value of his estate in the antenuptial contract, the non -declaration
of a value serves as prima facie proof of such value, in terms of s 6(3). It means
that saying nothing about the value of a party’s estate constitutes prima facie
proof of the commencement value of such a party’s estate. The court said that
‘saying nothing cannot in logic constitute prima facie proof of net asset value ’.14

[25] The absurdity submission has no substance if regard is had to s 6(4) (b) of
the MPA . It provides that the commencement value of a party’s estate is deemed
to be nil if the commencement value of such a party ’s estate is not declared in his
antenuptial contact and the contrary is not proved. The absurdity disappears when
ss 6(3) and (1) are read with s 6(4)(b) because the latter provision establishes a
deemed prima facie value of nil. No reference is made to s 6(4) (b) in Olivier .

[26] The absurdity submission was considered and sustained in Thomas despite

14 Olivier at 554E -F fn 2.
12

a consideration of s 6(4) (b).15 The court there found that the Legislature would
not have intended s 6(3) to mean that it is only in circumstances where a
commencement value has not been declared in an antenuptial contract, that it
serves as prima facie proof of such value; and , at the same time, intended s 6(4)(b)
to mean exactly the same thing . That finding is not supported by a proper
interpretation of ss 6(1), 6(3) and 6(4) (b).

[27] The purpose of s 6(1) is solely to provide an option to a party who has not
declared the commencement value of his or her estate in an antenuptial contract.
Such a party may declare that value in a statement. Section 6(1) does not deal
with whether the antenuptial contract in which the commencement value of a
party’s estate has not been declared, or a statement serves as conclusive or prima
facie proof of such value. That is what s 6(3) does. What s 6(4)(b) does is to
introduce a deeming provision . It places a deemed commencement value of nil
on the estate of the spouse concerned . The deeming provision is activated only
when two conditions are satisfied. The first condition is that the commencement
value of the party’s estate must not be declared in the antenuptial contract. That
is how far s s 6(3) a nd (1) go. The second condition goes further than that. It
provides that the commencement value cannot be deemed to be nil when the
evidence shows that such value was higher than the deemed value of nil.
Section 6(4)(b) clearly contemplates the possibility of it being proved that the
commencement value of a spouse’s estate might be an amount higher than nil. It
assists with the proof of the commencement value of a spouse’s estate, whereas
s 6(3) simply states the nature and extent of proof of an antenuptial contract in
which the commencement value of a party’s estate has not been declared.

[28] A clear distinction is drawn in s 6 between an antenuptial contract and a
statement. If the statement was intended to be a contract, o ne would have

15 Thomas at 197I-J fn 4.
13

expected the Legislature to have referred to the statement, if made before
conclusion of the marriage, as ‘the amended antenuptial contract’ or ‘an
addendum to the antenuptial contract’ if the statement was made within
six months after the commencement of the marriage.

[29] A distinction is also drawn in s 6 between two types of antenuptial contracts
to which the accrual system applies . The one type is where a party to an intended
marriage declares the commencement value of his or her estate in the antenuptial
contract. In such a case, the antenuptial contract , being subject to common law
contractual principles, serves as conclusive proof of such commencement value.
In other words, the parties to the intended marriage are bound by the terms of the
antenuptial contract, inclusi ve of the declaration of the commencement value of
a party’s estate. The terms of such an antenuptial agreement can only be attacked
on the recognised common law grounds.

[30] The other type of antenuptial contract is where a party to an intended
marriage does not declare the commencement value of his or her estate. In such
a case, the deemed commencement value of such a party ’s estate is nil, in terms
of s 6(4) (b), subject to the two conditions referred to above . Evidence may be
adduced to prove that the spouse’s estate has a commencement value other than
the deemed value of nil. That is what s 6(4) (b) provides. Where a party makes a
statement, the commencement value of his or her estate declared in such a
statement , serves as prima facie proof of such value. That is what s 6(3) provides.
Evidence may be adduced in such a case by any interested party to prove that the
spouse’s estate has a commencement value other than the amount of the value
declared in the statement. For purposes of an accr ual calculation, the Legislature
does not draw a distinction between whether such calculation occurs at the
instance of the spouses themselves or third parties, like their heirs or creditors.16

16 Thomas at 198 H and 199G -H fn 4.
14

The finding in Olivier , that the provisions of s 6(3) were intended to be applicable
only as against third parties at the dissolution of the marriage, is incorrect.

[31] In the circumstances, contrary to what was found in Thomas and TN v NN ,
an antenuptial contract contemplated in s 6(1) is one in which a party did not
declare the commencement value of his or her estate . It is only in that case that
there is a deemed value, in terms of s 6(4) (b), with the door left open to a party
to prove a different value. This is why, under s 6(3), the deemed or subsequently
stated value is expressed to serve only as prima facie proof of the commencement
value of the estate of the spouse concerned.

[32] In Olivier the court recognised the role of the common law in the
interpretation of legislation in two respects. First, it found that, when the husband
and wife concluded the antenuptial contract, they agreed and contracted with each
other that the value of their re spective estates was nil. The court found that the
antenuptial contract was conclusive proof of the terms of their agreement and, in
terms of the common law, it could only be attacked on the recognised grounds of
misrepresentation, duress, undue influence, etc. Fraud should be added to the list.
If such a contract does not correctly reflect the agreement between the parties due
to common error, then rectification can also be sought.17

[33] Where parties conclude an agreement, they should be bound by the terms
thereof. Despite the conclusion of an antenuptial contract which complied with
common law principles of contract, it was nevertheless found in Thomas that the
commencement value declared therein did not serve as conclusive proof of such
value but served merely as prima facie proof thereof. The conclusion in Thomas ,
that the Legislature changed the common law , is wrong since nothing in s 6(3)
indicates such an intention .

17 Olivier at 555D -E fn 2.
15

[34] In the s econd respect , Olivier referred to the presumption that a statute does
not intend to alter or modify the common law. If it is the intention of the
Legislature to alter or modify the common law, the statute must state so either
explicitly or by necessary inference.18 The court could not fathom any possible
reason why the Legislature would intend to alter the common law by s 6(3), when
the very purpose of agreeing to the commencement value of the respective estates
in an antenuptial contract is to have certainty when e ffect is to be given to the
accrual system. The husband was accordingly held to be bound by the provisions
of the antenuptial contract.19 Nothing in s 6(3) indicates that the Legislature
intended altering the common law.

[35] Regard being had to the distinction between an antenuptial contract and a
statement and the two different types of antenuptial contracts, the absurdity
argument has no substance and must fail. That argument does not draw a
distinction in the first place, between an antenuptial contract and a statement and,
in the second place, between an antenuptial contract in which the commencement
value of a party’s estate is declared and an antenu ptial contract in which such
value is not declared. Once those distinction s are drawn , s 6(3) must , in the first
instance, be interpreted to refer to an antenuptial contract in which the
commencement value of a party is not declared. In the second instance, s 6(3)
refers to a statement ‘signed and attested in terms of subsection (1) or a certified
copy thereof contemplated in subsection (2)’.

[36] Thomas and v TN v NN did not draw a distinction between the objective
commencement value of a party’s estate and an agreement between the parties on

18 In this regard Wessels J said in Casserley v Stubbs 1916 TPD 310 at 312:
‘It is a well-known canon of construction that we cannot infer that a statute intends to alter the common law. The
statute must either explicitly say that it is the intention of the legislature to alter the common law, or the inference
from the Ordinance must be su ch that we can come to no other conclusion than that the legislature did have such
intention. ’
19 Olivier at 555J -556A fn 2.
16

the commencement value of such a party’s estate. Where the objective
commencement value of a party’s estate is R1 million but the parties to the
intended marriage , for whatever reason, agree that the commencement value of
such party’s estate is R2 million , and the value of R2 million is declared in the
antenuptial contract, that antenuptial contract will serve as conclusive proof of
the party’s commencement value. The parties will be bound by the terms of that
antenuptial contract in the absence of an attack on the antenuptial contrac t based
on the recognised common law grounds.

[37] On the other hand, a statement is a unilateral act which does not require
agreement of the other party of the commencement value declared in that
statement. Therein, according to M v M , lies the difference between an antenuptial
contract and a statement. Since it does not require the other party’s agreement, a
statement serves only as prima facie proof of the value declared therein.

[38] Since an antenuptial contract, in which the commencement value of a
party’s estate has been declared, serves as conclusive proof of the value declared
therein, the finding in TN v NN, that the net values at the commencement and
dissolution of the marriage are matters of objective fact, is incorrect. The
Legislature intended th e commencement value to be declared in an antenuptial
contract for the sake of certainty.

[39] The proposition that the Legislature inserted the words ‘contemplated in
subsection (1)’ in s 6(3) in error, offends the well -known rule in the interpretation
of legislation that meaning must be given to every word used. In Wellworths
Bazaars Ltd v Chandler's Ltd and Another20 this Court held that ‘…a Court
should be slow to come to the conclusion that the words [in an enactment] are

20 Wellworths Bazaars Ltd v Chandler's Ltd and Another 1947 (2) SA 37 (A) at 43.
17

tautologous or superfluous’. Recently this Court said in GN v JN21 that one cannot
treat words in an enactment ‘…as if they do not exist. It is impermissible to do
so, as it militates against a long -standing precept of interpretation that every word
must be given a meaning, and that no word should be ignored, or treated as
tautologous or superfluous’. In that regard , this Court referred to , among others ,
National Credit Regulator v Opperman and Others where Cameron J stated that
‘[a] longstanding precept of interpretation is that every word must be given a
meaning. Words in an enactment should not be treated as tautologous or
superfluous’.22

[40] In the circumstances, t he words ‘contemplated in subsection (1)’ were
clearly not erroneously inserted in s 6(3). Olivier , Thomas and TN v NN were
accordingly wrong to the extent that they found that those words were
erroneously inserted in s 6(3).

[41] An antenuptial contract contemplated in s 6(1) is one where a party to an
intended marriage does not, for the purpose of proof of the value of his or her
estate at the commencement of his marriage, declare such value. A statement
contemplated in s 6(1) is one which a party to an intended marriage makes before
the marriage is entered into or within six months after the marriage has been
entered into where he or she did not declare the commencement value of his or
her estate in the antenuptial contract.

[42] In the circumstances, s 6(3) covers the situation where a party has not
declared the commencement value of his or her estate in an antenuptial contract
or where he or she has made a statement in terms of s 6(1). Such an antenuptial
contract or statement serves as prima facie proof of the commencement value of

21 GN v JN [2016] ZASCA 162; 2017 (1) SA 342 (SCA); [2017] 1 All SA 33 (SCA) para 54.
22 National Credit Regulator v Opperman and Others [2012] ZACC 29; 2013 (2) BCLR 170 (CC); 2013 (2) SA
1 (CC) para 99.
18

the estate of the party concerned. The provisions of s 6(3) as read w ith subsec (1)
do not cover the situation where a party has declared the commencement value
of his or her estate. It follows that, where a party has declared the commencement
value of his or her estate in an antenuptial contract, such antenuptial contract
serves as conclusive proof of the commencement value of the estate of the party
concerned. The finding in Thomas and TN v NN, that the intention of the
Legislature was that both an antenuptial contract and a statement serve as prima
facie proof o f the commencement value declared therein, is accordingly incorrect.

[43] In this case, the parties declared the commencement value of their
respective estates in their antenuptial contract. On the above interpretation of
s 6(3) of the MPA, the parties are bound by the terms of the ir antenuptial contract.
The applicant’s reliance on s 6(3) was accordingly misplaced. She did not plead
any of the recognised common law grounds upon which the terms of the
antenuptial contract could be attacked. In the circumstances, the high court
correctly determined that the commencement value of t he respondent’s estate is
R68.7 million . The parties agreed in the high court that the commencement value,
CPI adjusted, equated to R129 million six days before the dissolution of the
marriage on 24 March 2022. Counsel confirmed that agreement before us. This
is the figure that must be used to determine whether there was any accrual in the
respondent’s estate.

[44] For purposes of determining whether there has been an accrual, it must be
established whether the value of the respondent’s estate at the dissolution of the
marriage exceeded the value of his estate at the commencement of that marriage.
If one were to acce pt the calculation of Mr Ryan Sacks (Mr Sacks), one of the
applicant’s expert witnesses, the value of the respondent’s estate at the date of
dissolution of the marriage was R117 199 381. The value of the respondent’s
estate was, on Mr Sacks’s calculation, accordingly lower than the commencement
19

value of R129 million . On the applicant’s version, therefore, there was no accrual,
as an accrual cannot be a negative amount. The applicant accordingly did not
discharge the onus of proving an accrual and her appeal must therefore fail.

[45] There is no reason why costs should not follow the result. Both parties
employed two counsel , a reasonable precaution, regard being had to the factual
and legal issues raised in this appeal. The applicant must pay the costs of the
appeal, inclusive of the costs of two counsel, where so employed.

[46] In the result, it is ordered that:
1 The application for leave to appeal is granted.
2 The appeal is dismissed with costs, such costs to include the costs of:
2.1 the application for leave to appeal; and
2.2 two counsel, where so employed.
3 The applicant shall pay the costs of the application for condonation for the
late lodging of the appeal record.



_________________________
G H BLOEM
ACTING JUDGE OF APPEAL











20

Appearances

For the applicant : LM Hodes SC with A Salduker
Instructed by: RHK Attorneys, Sandton
Symington de Kok Inc, Bloemfontein

For the respondent: AP Joubert SC with L Fran ck
Instructed by: England Slabbert Attorneys, Rivonia
Lovius Blo ck Attorneys , Bloemfontein .