REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2023 -114345
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
Judge Dippenaar
In the matter between:
M N P U M APPLICANT
and
S V M FIRST RESPONDENT
REGISTRAR OF THE DEEDS OFFICE SECOND RESPONDENT
7 April 2025
Page 2
JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e -mail. The date and time for hand -down is deemed
to be 10h00 on the 07th of APRIL 2025.
DIPPENAAR J:
[1] The applicant , Mrs M, launched application proceedings in which she sought
declaratory orders declaring: (a) that the ante nuptial contract concluded between her and
the first respondent, Mr M, is invalid, null and void; (b) the marriage concluded between
her and the first resp ondent is a marriage in community of property; and an order
declaring the second respondent, the Registrar of Deeds , to remove the said ante nuptial -
contract from the register.
[2] The application was opposed by the first respondent, Mr M. As the second
respondent did not actively participate in the proceedings, Mr M will be referred to as the
respondent where convenient.
[3] The relevant background facts are not contentious. The parties met in 2002, whilst
the applicant was registered as a student at Ts hwane University of Technology and the
respondent was employed at Alexander Forbes, having studied actuarial science. The
parties moved in together shortly after meeting. Their first child, a daughter, was born on
7 July 2004. The applicant later that year gradu ated with a diploma in public relations.
The parties have four children together .
[4] After various separations and reconciliations, the parties finally separated in May
2017. The parties are presently in the midst of an acrim onious divorce. The respondent
instituted divorce proceedings against the applicant during June 2021. A copy of the
Page 3
parties’ ante nuptial contract, reflecting that they are married out of community of property
with the exclusion of the accrual system , was attached to the particulars of cla im. In her
plea, delivered in November 2021, the applicant disputed that the parties were thus
married and challenged the validity of the ante nuptial contract on the basis that she had
not agreed to its terms and had not signed the ante nuptial contract. The parties have
been unable to reach a settlement.
[5] Prior to their marriage the parties purchased some nine properties together to
obtain rental income . It was common cause that seven properties were registered jointly
in the parties ’ names . The other two, including the matrimonial home, were registered in
the name of the respondent only.
[6] After the birth of their daughter, the respondent decided to find a larger house to
raise their daughter. The matrimonial home in Birch Acres was purchased in July 2005.
The parties chose the property together. The respondent however signed the mortgage
bond documents on his own and had told the applicant that as she was unemployed at
the time and did not have a ny proof of income , he had been advised to sign the
documentat ion alone. The property was registered in the name of the respondent only.
The applicant contended that this was done behind her back and without her knowledge.
After securing employment some time later, but before their marriage, she requested the
respon dent to approach the financial institution involved so that she could be added to
the property as co -owner. The respondent refused. That was common cause.
[7] It was undisputed that the applicant was initially a dependant on the respondent’s
medical aid and t hat for a period , the respondent was on her medical aid . It was further
undisputed that the respondent concluded various lease agreements with the tenants of
the parties’ rental properties in his name and that he collected the rental derived therefrom
and deposited them into his bank account. Each of the parties had separate bank
accounts and no joint bank account was ever opened.
Page 4
[8] The respondent paid the mortgage payments and the municipal charges in respect
of all the properties. Although the respondent disputed that the parties shared their
financial responsibilities, it was undisputed that the applicant paid for groceries, the
family’s clothing and other expenses. It was also common cause that during the parties’
relationship there were certain occasion s when the applicant and respondent respectively
were unemployed. It was undisputed that the respondent throughout their relationship
earned substantially more than the applicant.
[9] It was undisputed that the respondent arranged a meeting with an attorney relating
to the ante nuptial contract and that the parties attended his offices on 19 December 2007
at the instance of the respondent . It was further undisputed that the parties signed a
special power of attorney in favour of the attorney, Mr Marius Adriaa n Fourie, which
attached a draft ante nuptial contract , which was initialed by the parties . The draft ante
nuptial contract indicated that there would be no community of property between them
and that the accrual system as provided for in Chapter 1 of the Matrimonial Property Act
88 of 1984 was excluded as well as all donations, bequests of legacies any of the
prospective spouses may receive before or during the subsistence of the marriage.
[10] The special power of attorney, authorising Mr Fourie to sign the a nte nuptial
contract before a notary on behalf of the parties, is dated 19 December 2007. Mr Fourie
appeared before the notary on 3 January 2008, where the ante nuptial contract was
executed. It was undisputed that under s 95 of the Deeds Registries Act 47 of 1937, the
execution of a power of attorney for legal purposes, including the execution of an ante
nuptial contact is expressly authorised. It was further undisputed that the ante nuptial
contract was executed in terms of the relevant legal requirements .
[11] The applicant admitted to signing the special power of attorney dated 19 December
2007 and that her initials appeared on the second and third pages thereof, being a draft
of the ante nuptial contract . The parties’ versions diverge re garding their intenti on at the
Page 5
time and whether the different marital regimes and the implications thereof were
explained and agreed upon .
[12] The parties were married by civil rights in a church in Dundee on 5 January 2008,
in what the parties described as ‘a white wedding’. The respondent disputed the
applicant’s contention that prior to their wedding, l obola negotiations were conducted with
her family in Lesotho. However, n o reliance was placed on a customary marriage and
that aspect is irrelevant to the issues which must be determined.
[13] The nub of the dispute between the parties is the enforceability and validity of the
ante nuptial agreement. In sum, the applicant contend ed that she was deceived into
signing the special power of attorney by the respondent or that her signature was obtained
by fraud. She contend ed that there was never a discussion or agreement between her
and the respondent to m arry out of community of property. According to the applicant,
she first found out that they were married out of community of property excluding accrual,
when she received the divorce summons during June 2021.
[14] The applicant’s central contention was that th ere was no meeting of the minds
when the ante nuptial contract was signed as she never entertained the necessary
intention to marry the respondent out of community of property excluding accrual or to
sign an ante nuptial contract. Her case is centrally pre dicated on t wo pillars. The first, that
she never entertained the necessary intention to conclude an ante nuptial contract or to
marry the respondent out of community of property . The second, that he r signature on
the power of attorney authorising the exec ution and registration of the ante nuptial
contract was obtained by deceit , as the respondent advised her that it was necessary to
sign the document s as it would place the parties in a lower tax bracket and would ensure
funds were not frozen if one of them passed away . She contended that she was not
afforded an opportunity to read the document s signed by her, but was urged by the
respondent to trust him.
Page 6
[15] On the applicant’s version, t he different marital regimes and their consequences
were not explained to her. She admitted to accompanying the respondent to a meeting
with the attorney, Mr Fourie , on 19 December 2007, which was her birthday. She could
not recall whether she signed any documents at the attorney’s office but was emphatic
that the attorney did n ot explain the various marital regimes and their implications to her.
According to the applicant, the attorney asked her whether she was satisfied, which she
confirmed.
[16] Despite not being articulated precisely in the applicant’s heads of argument it is
clear that she wishes to resile from the ante nuptial contract on the ground of justus error
or, put differently, reasonable or pardonable error.
[17] The respondent contend ed the opposite, namely that the parties before their
marriage discussed and expressly agreed that their marriage was to be out of community
of property with exclusion of the accrual system, so that each of the parties was free to
grow their respective estates , which they did during the marriage . He contended that the
ante nuptial contract was valid and re flected the agreement between the parties and that
the various matrimonial regimes and their consequences were explained at the meeting
with Mr Fourie on 19 D ecember 2007 .
[18] The following questions must be answered :
(a) As the parties have mutually contradictory versions, which of the versions should
be accepted?
(b) Is there an adverse inference to be drawn for the respondent’s failure to call the
attorney, Mr Fourie , as a witness?
Page 7
(c) Does the caveat subscriptor rule apply and the applicant is thus bound by the
contract, given that she conceded that she signed the special power of attorney
pursuant to which the ante nuptial contract was executed ? Or; has the applicant
established justus error in signing the said special power of attorney authorising the
conclusion of the ante nuptial contract and thus that the contract is invalid and liable
to be set aside?
[19] It is convenient to first dispose of t he ques tion whether a negative inference can
be drawn from the respondent’s failure to call the attorney, Mr Fourie, as a witness.
Ordinarily, the failure to call an available factual witness will give rise to the inference that
the evidence that such a witness could give would be to the detriment of the party’s case.1
[20] A failure to testify by a party who is available and whose actions lie at the core of
the dispute is a factor to take into account, but in doing so regard must be had to the
strength or otherwise of the case a party has to meet. A failure to call any witness of fact
is part of the inferential process which must be viewed in the context of the case as a
whole. It is apposite to refer to Koukoudis2: wherein the Supreme Court of Appeal held:
“…Failur e to testify by a party who is available and whose actions lie at the core of the dispute
is, of course, a factor to be taken into account, but in doing so, regard must be had to the
strength or otherwise of the case that party has to meet .”
[21] Although this is a referral of the matter to oral evidence and the affidavits must be
considered together with the oral evidence, what transpired in the meeting with Mr Fourie
forms part of the nub of the dispute. Either the implications of a marriage out of community
of property without accrual was explained to the applicant, as the respondent contends,
or they were not, as the applicant contends . It would have a simple matter for Mr Fourie
1 Galante v Dickson 1950 (2) SA 460 (SCA) at 465.
2 Koukoudis and Another v Abrina 1772 (Pty) Ltd and Another 2016 (5) SA 352 (SCA) para 49.
Page 8
to clarify the position during evidence, where he would have been subject to cross
examination. He could also have clarified whether the power of attorney was signed in
front of witnesses, which the applicant disputes.
[22] In his affidavit, the respondent did not aver that the special power of attorney was
signed in front of witnesses , only that the parties signed it in the attorney’s and each
other’s presence on 19 December 2007. In his oral evidence, the respondent’s version
was that it was indeed signed in the presence of witnesses. The applicant disputed that
any witnesses were pre sent when she signed the special power of attorney.
[23] At the inception of the hearing, the respondent stated that Mr Fourie would be
called to testify. That was also stated in the pre -trial conference held between the parties.
Unfortunately , he was not. A lthough the confirmatory affidavit must be considered , that i s
not sufficient to overcome the respondent’s failure to call a witness who could have
substantially corroborated his version. Considering all the evidence and the principles
involved, I am not p ersuaded that an adverse inference can be drawn , although his lack
of corroboration is taken into account as a factor in determining the probabilities .
[24] What remain s, are the versions proffered by the respective parties. Those versions
are mutually exclusive on material aspects . The test pertaining to disputed issues is set
out in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et cie and Others
thus: 3
‘To come to a conclusion in the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.’
3 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et cie and Others 2003 (1) S A 11 (SCA)
para 5 .
Page 9
There are also subsidiary considerations which must be taken into account. Although not
all of them are set out in any detail herein, they have been taken into consideration.
[25] It is trite that a court must base its conclusions on a consideration of all the
evidence, which must take the totality of the evidence into account.4 The drawing of an
inference requires properly established objec tive facts.5
[26] Both the applicant and the respondent respectively urged the court to conclude
that the evidence of the other party should be rejected and that their respective evidence
should be accepted. However, t he versions of both the applicant and the respondent
contained certain inconsistencies and improbabilities which affected their reliability and
tainted their credibility. Ultimately, neither party’s evidence can be rejected in its totality.
The demeanour of the respective witnesses is not of dete rminative import. T he matter
must be decided on the basis of all the relevant factors, including the probabilities , on the
evidence considered as a whole.
[27] As held by Meyer J in Standard Bank of South Africa Ltd v Sibanda : 6
‘I respectfully agree entirely with the learned author that ‘by far the best determinant of the
truth of testimony is not a witness’s demeanour (visual or auditory behavioural cues) at all,
but the actual content of the testimony’ and that factors ‘such as self -contradiction, inherent
plausibility or the lack thereof, omissions and imprecisions, verification of facts testified to by
other witnesses and exhibits, bias or motive on the part of the witness, and limitations of recall
are among the most important indications of witness credib ility’, all of which would be readily
discernible by a reading of a transcript of the evidence ’.
4 S v van der Meyden 1999 (2) SA 79 (W); Passenger Rail Agency of South Africa v Seleke (A5016/2022)
[2023] ZAGPJHC 51 (25 January 2023) ( Seleke ) para22.
5 Seleke paras 24 -26 and the authorities cited therein.
6 Standard Bank of South Africa Ltd v Sibanda 2021 (5) SA 276 (GJ) para 9.
Page 10
[28] It is uncontentious that the onus to prove the invalidity of the ante nuptial contract
rests on the applicant. The principle of pacta sunt servanda 7 is well entrenched in our
law. If the applicant freely and voluntarily authorised the conclusion of the ante nuptial
contract in its terms , she is bound thereto and her application must fail.
[29] The true issue between the parties is whether the applicant is boun d by the caveat
subcriptor rule, having conceded that she signed the special power of attorney authorising
Mr Fourie to conclude the ante nuptial contract on her behalf or whether she made a
mistake in doing so due to misrepresentation on the part of the r espondent. The
respondent’s reliance on CB v DB 8 and GKR v Minister of Home Affairs and Others 9
does not avail him and the principles set out therein do not assist him in resolution of the
present dispute s.
[30] The legal principles applicable to the caveat subscriptor rule were summarised
thus by Plasket J in Absa Bank Ltd v Mc Creath :10
‘[7] ABSA relies on the caveat subscriptor rule which is to the effect that a party who signs a
document containing contractual terms is bound by his or her signature whethe r he or she
read the document or not.11 This rule is not absolute. As appears from Fagan CJ’s judgment
in George v Fairmead (Pty) Ltd ,12 it all comes down to whether the party who signed the
document created the impression for the other party that he or she had agreed to the terms
contained in the document:
‘When can an error be said to be justus for the purpose of entitling a man to repudiate his
apparent assent to a contractual term? As I read the decisions, our Courts, in applying the
7 Baedica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others 2020 (5) SA
247 (CC) at paras 81 -89.
8 CB v DB 2023 1 SA 382 SCA , which confirms that the primary purpose of an ante nuptial contract is to
establish a marital property regime.
9 GKR v Minister of Home Affairs and Others 2022 (5) S A 478 (GP) , dealing with claims under s 7(3) of
the Divorce Act.
10 Absa Bank Ltd v Mc C reath 26/14 [2014] ZAECGHC 51 (13 June 2014)
11 See Burger v Central South African Railways 1903 TS 571 at 578; Afrox Healthcare Bpk v Strydom
2002 (6) SA 21 (SCA) para 34.
12 George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 471B -D.
Page 11
test, have taken into account the fact that there is another party involved and have considered
his position. They have, in effect, said: Has the first party - the one who is trying to resile -
been to blame in the sense that by his conduct he has led the other party, as a rea sonable
man, to believe that he was binding himself? . . . If his mistake is due to a misrepresentation,
whether innocent or fraudulent, by the other party, then, of course, it is the second party who
is to blame and the first party is not bound.’
[8] In other words, the ‘true basis of the principle is the doctrine of quasi -mutual assent, the
question being simply whether the other party is reasonably entitled to assume that the
signatory, by signing the document, was signifying his intention to be bound by it’.13
[9] In Brink v Humphries & Jewell (Pty) Ltd14 Cloete JA, with reference to the passage cited
above from George v Fairmead (Pty) Ltd , stated that an innocent misrepresentation by the
other party suffices to enable a signatory to escape the usual con sequences of his or her
signature, before proceeding to say:
‘The law recognises that it would be unconscionable for a person to enforce the terms of a
document where he misled the signatory, whether intentionally or not. Where such a
misrepresentation is material, the signatory can rescind the contract because of t he
misrepresentation, provided he can show that he would not have entered into the contract if
he had known the truth. Where the misrepresentation results in a fundamental mistake, the
“contract” is void ab initio . In this way, the law gives effect to the sound principle that a person,
in signing a document, is taken to be bound by the ordinary meaning and effect of the words
which appear over his/her signature, while, at the same time, protecting such a person if
he/she is under a justifiable misapprehensi on, caused by the other party who requires such
signature, as to the effect of the document.’
[31] In Prins v Absa Bank Ltd , 15 cited with approval in G v G,16 Davis AJ proposed the
following questions that can be used to determine whether reliance in terms of the
conduct of the party allegedly creating the impression of consensus and the conduct of
the other party in believing the impression:
‘(a) Is there co nsensus?
(b) If not, it there dissensus caused by a mistake?
(c) Is the other party aware of the resiler’s mistake?
13 RH Christie and GB Br adfield Christie’s The Law of Contract in South Africa (6 ed) at 182.
14 Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 (SCA) para 2.
15 Prins v Absa Bank Ltd 1998 (3) SA 904 (C)
16 G v G [2018] ZAGPJHC 499 (21 September 2018) confirmed on appeal in G v G (A 5045/2017) [2018]
ZAGPJHC 626 (13 November 2018).
Page 12
(d) Who induced the mistake and was done by commission or omission, which was either
fraudulent or even innocent?’
[32] The parties testified a bout their conduct, both before and after the marriage in
support of their respective versions on the probabilities . The applicant contended that
such conduct indicat ed that they shared the family’s financial responsibilities and were
building up a joint e state and sharing expenses . Although disputed by the respondent,
the evidence established as a probability that the parties did share their financial
responsibilities .
[33] There was a period where the applicant was on the respondent’s medical aid and
another where the converse occurred . The evidence further established that the
respective parties took responsibility for different expenses to sustain their family and its
responsibilities. The fact that the respondent persisted with his denial that the parties
shared the family’s responsibilities in cross examination, despite being confronted with
corroborating evidence , detracts from his credibility. The sharing of financial
responsibilities is however not determinative of whether they agreed to be married in
community of property or in accordance with the terms of the ante nuptial contract.
[34] The respondent further made various claims regarding property in Lesotho and
other assets owned by the applicant independently , which she disputed and for which he
could provide no corroborating evidence. That was disputed by the applicant. No weight
can be attached to the respondent’s bald and unsubstantiated averments. The
respondent’s version regarding the circumstances under which certain of his assets were
attached, a nd the documentation he relied on is improbable.
[35] As stated, i t was undisputed that prior to their marriage the parties purchased
various properties for rental income. The applicant contended there were nine properties .
On a conspectus of the evidence, tha t number included the matrimonial home. Although
Page 13
admitting that averment under oath in his answering affidavit, in evidence, the respondent
contended that only seven properties were jointly purchased . He contended that ‘joint
purchase’ meant that the parti es had looked at and decided on the properties together.
That contention does not bear scrutiny . The reasons provided by the respondent to the
applicant as to why she was not registered as a co-owner of the matrimonial home, which
the parties jointly purch ased before the marriage, are unconvincing. His refusal to take
steps to have the applicant registered as co -owner of that property is significant. The
applicant was thus fully aware prior to the conclusion of the marriage that the respondent
did not agree to a pooling of all their assets in a joint estate.
[36] It is also probable that the respondent had scant regard for the concept of joint
ownership as illustrated by him concluding lease agreements in respect of the jointly
owned properties in his own name a nd appropriating the rental income to his own bank
account . He did not dispute those facts. The applicant’s version that the respondent never
accounted to her in relation to the said pro perties and that she never protested to him
administering those assets , is probable. It is not however probable that the applicant
accepted that the respondent was administering their joint estate for purposes of a
marriage in community of property, as the applicant contended. Even before the marriage
the applicant was well aware that the respondent refused to agree to the matrimonial
‘’home being owned by them jointly. There are various issues surrounding their joint
ownership of the various properties which will have to be resolved in due course .
[37] It was undisputed that a fter the parties’ marriage and during about 2016, the
applicant branched out into two business ventures, which ultimately failed. The
respondent was not involved in these business ventures and his consent was not sought
to sign any documents in relation th ereto . Irrespective of the applicant’s reasons as to
how this came about, that militates against the notion that the applicant was under the
impression that the parties were married in community of property.
Page 14
[38] The applicant’s conduct in relation to the compl etion of the application for vehicle
finance of a Renault Clio with MFC during 2014, supports the probability that she was not
in possession of a copy of the ante nuptial contract at the time as it was not provided to
the financial institution involved. Although on her version she did not personally complete
the application form, it reflects the marriage as being “accrual system’. When confronted
with this in cross examination, she contended that she had stated she was married in
community of property as sh e was not at the time familiar with the concept of accrual.
However, s he signed the agreement, effectively representing that she was married out of
community of property. In argument , the applicant sought to overcome th is difficulty by
submitt ing that the applicant understood accrual to mean ‘they accrue assets together’.
Considering the facts, the applicant’s version on the issue is improbable. It is improbable
that the salesperson of his or her own volition would have mentioned the word accrual,
unless it emanated from the applicant. No evidence was presented that the applicant was
requested for the respondent’s consent to the transaction.
[39] The applicant’s conduct when she received her pension fund payout from an
erstwhile employer, militates against her b eing under the impression that the parties were
married in community of property. It was undisputed that the applicant did not share the
said payout equally. Although t here is a dispute between them as to the amount the
applicant shared with the respondent , on the applicant’s own version, that amount did not
equate to half the payment received by her. She further did not testify that there was in
her view an y obligation to share the said payment.
[40] The parties’ respective versions on how the special power of attorney was signed,
are divergent. On the applicant’s version, she si gned the documents at home the evening
before the parties attended the offices of Mr Fourie. Her version was that she signed them
without reading the contents thereof, pursuant to the respondent explaining the need and
reasons for signature of the documents . She testified that Mr Fourie at the meeting on 19
December 2007, had not explained anything to her, but asked her whether she was happy
Page 15
with the arrangement and whether the respondent had explained the documents to her .
She confirmed in the affirmative. The respondent on the other hand testified that the
parties had discussed the matter and agreed that their marriage should be out of
community of property, ex cluding the accrual system.
[41] It was undisputed that the respondent made the arrangements for the meeting with
the attorney in relation to the ante nuptial contract. What exactly transpired before Mr
Fourie remains unclear . Ultimately it is not relevant wher e the applicant signed the
documents, given the concession that she did so. She further conceded in evidence that
she could not remember whether she had signed any documents at the offices of Mr
Fourie. It is improbable that the attorney, as a professiona l, would have completely
disregarded his duties by not insisting that the documents were signed in his presence.
On this issue, the version of the respondent is more probable than that of the applicant.
[42] On a conspectus of the facts, t he applicant’s version that she trusted the
respondent and was guided by him in relation to financial matters is probable. It is also
probable that the respondent advised her that the reason she had to sign the special
power of attorney pertained to tax reasons and to avoid the ir funds to be frozen in the
event of death as testified by the applicant. On the respondent’s own version, he was
acutely aware that there were different tax brackets for parties married in and out of
community of property. He is trained in actuarial sci ence and spent time working for
banking and other financial institutions and for SARS. The applicant on the other hand,
has no such experience. Although she is educated and holds tertiary qualifications, those
are not in the fields of finance. The responde nt’s evidence lends credence to the
applicant’s evidence that the respondent told her the documents must be signed for tax
reasons. It is unlikely that the applicant would have known such information if it was not
imparted to her by the respondent.
Page 16
[43] Consi dering all the evidence, it is probable that the respondent persuaded the
applicant that it was better for them to be married out of community of property and to
conclude an ante nuptial contract. He may well have deceived her on that issue and not
fully e xplained all the implications of doing so. However, t hat does not equate to a lack of
consensus that the marriage would be out of community of property the time the
documents were signed. It was open to the applicant to properly read the documents and
seek clarification from Mr Fourie regarding any aspect she did not understand. She did
not avail herself of that opportunity. Instead, she signed the special power of attorney and
appended her initials to the draft ante nuptial contract, thus signifying her voluntary
agreement thereto. The applicant is an intelligent and qualified woman, who reasonably
must have understood that by signing the documents, she was assenting to a marriage
out of community of property, excluding the accrual system.
[44] It can be acce pted as probable that the respondent was the forceful and dominant
party in their relationship and that the applicant adopted a subservient role. Although the
applicant may have been “tricked ” by the respondent as to why a marriage out of
community of property was a better option, it cannot be concluded that she was misled
as to how the parties would be married.
[45] On a conspectus of the evidence, t he applicant’s evidence that she was under the
impression that the parties we re to be married in community of property and would build
their estate jointly, is improbable . It is also improbable that they never discussed this
issue, given the applicant’s own evidence regarding what transpired the evening before
they attended at Mr F ourie’s offices. By th is time the applicant had already experienced
the respondent’s unwillingness to her acquiring joint ownership of the matrimonial home.
It is improbable that the applicant could reasonably have been under the impression that
the respon dent consented to a marriage in community of property, where all their assets
would be owned jointly , including the matrimonial home, given his prior conduct .
Page 17
[46] The applicant’s evidence that she would not have financially burdened herself
knowing that the r espondent earned far more than her and would have focused on
investing money for her own financial security , speaks to hindsight and regret rather than
to a lack of consensus at the time the special power of attorney was signed . Whilst she
may not have fu lly appreciated all the future consequences of a marriage out of
community of property, excluding accrual, that does not detract from the fact that she was
reasonably aware that the marriage would not be one in community of property.
[47] Considering all the ev idence and the probabilities, it must be concluded that the
applicant did not establish that there was no consensus between the parties as to how
they were to be married. The applicant further did not on the probabilities establish justus
error or grounds which would entitle her to resile from the contract and vitiate the special
power of attorney and thus, the ante nuptial contract. The drawing of an adverse inference
against the respondent for the failure to call Mr Fourie, would not tip the scales in her
favour. It follows that the application must fail.
[48] Considering all the facts and the respondent’s conduct , it would not in my view be
just to mulct the applicant with the costs of the application. Given the nature of the dispute
which is matrimonial in nature, there is scope to depart from the normal principle that
costs follow the result.17 I am not unsympathetic to the applicant’s plight. However, the
facts, probabilities and ultimately the law were against her. She may have other remedies
at her dispos al which can be pursued. In all the circumstances, i t would be just to direct
each party to be liable for her or his own costs.
[49] In the result, the following order is granted:
17 G v G [2018] ZAGPJHC 499 (21 September 2018) confirmed on appeal in G v G (A 5045/2017) [2018]
ZAGPJHC 626 (13November 2018) para 18.’
Page 18
[1] The application is dismissed;
[2] The applicant and first respondent are directed to bear their own costs.
_____________________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
HEARING
DATE OF HEARING : 17 - 18 MARCH 2025
DATE OF JUDGMENT : 07 APRIL 2025
APPEARANCES
APPLICANT ’S COUNSEL : Adv L Leeuw
APPLICANT ’S ATTORNEYS : E. Talane Inc.
RESPONDENT ’S COUNSEL : Adv D Steenekamp
RESPONDENT ’S ATTORNEYS : Schumann van den Heever & Slabbert Inc.