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[2019] ZASCA 12
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H M v A M (1317/17) [2019] ZASCA 12 (14 March 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case
no: 1317/17
In
the matter between:
H
M
APPELLANT
and
A
M
RESPONDENT
Neutral
citation:
H
M v A M
(1317/17)
[2019] ZASCA 12
(14 March 2019)
Coram
Cachalia, Majiedt
and Schippers JJA and Mokgohloa and Matojane AJJA
Heard:
15 February 2019
Delivered:
14 March 2019
Summary:
Divorce – postnuptial agreement – whether
concluded in contemplation
of
divorce.
ORDER
On
appeal from
:
Gauteng Division of the High Court,
Pretoria (Mudau and Malungana JJ sitting as court of appeal):
1 The appeal is upheld
with costs, including the costs of two counsel.
2 The order of the court
a quo is set aside and replaced with the following:
‘
The
appeal is dismissed with costs.’
3 The matter is remitted
to the Regional Court for the Regional Division of
Mpumalanga at Mbombela,
to finalise maintenance for the respondent,
Ms A M, and for any
dependent child.
JUDGMENT
Majiedt
JA (Cachalia and Schippers JJA and Mokgohloa and Matojane AJJA
concurring):
[1]
This is an appeal, with the special leave of this court, against an
order of the Gauteng Division of the High Court, Pretoria
(the high
court), which made certain orders on a separated issue on appeal
before it. The issue, separated from the relief sought
in a divorce
action, concerned the validity and enforceability of a written
postnuptial agreement (‘the agreement’)
[2]
The parties were married to each other out of community of property,
with exclusion of the accrual system. The agreement was
authored by
the respondent, Ms A M, in April or May 2014 and presented to the
appellant, Mr H M, for his signature some eight months
prior to the
commencement of divorce proceedings. It reads:
‘
Hiermee
bevestig ek, H M, ID nommer . . . dat ek my huwelikskontrak ter syde
stel en dat A M, ID nommer . . . geregtig is
op die volle
helfte van my boedel.
Ek
bevestig dat ek haar sal onderhou soos my finansies dit toelaat in
dieselfde hoedanigheid as wat sy tans gewoond is en elke maand
50%
van my netto inkomste/dividend en pensioen aan haar sal oorbetaal.’
[3]
During April or May 2014 (the appellant was uncertain about the exact
dates), the agreement was presented twice by the respondent
to the
appellant for his signature. On both occasions he refused to sign it
and he told her that its content was ridiculous (‘belaglik’).
No mention of divorce was made by any one of them at that time. The
appellant was adamant in his evidence that divorce was not
on his
mind at all at that time, because he wanted to see his youngest child
finish her schooling at the end of that year.
[4]
On 10 November 2014 the appellant signed the
agreement. No mention was made of a divorce by either party when he
signed it. The
respondent placed the agreement for safekeeping with
friends and the parties continued as normal with their marital
relationship.
Matters, however, came to a head with a confrontation
on 30 November 2014 which was precipitated by the respondent’s
discovery
of the appellant’s extramarital affair. This
ultimately led to the breakdown of the marriage. The appellant issued
summons
on 15 January 2015. In her counterclaim, the respondent
sought a declaratory order to the effect that the agreement was valid
and
binding on the parties. In the alternative, she claimed that the
agreement was concluded by the parties in anticipation of the
appellant issuing a summons for divorce and that the agreement was
signed by the parties in settlement of all claims or disputes
that
might emanate from the divorce action and its patrimonial
consequences. In the face of the peremptory provisions of
s 21
of the
Matrimonial Property Act 88 of 1984
, which requires a court order to
sanction a change in the parties’ matrimonial property regime,
the respondent proceeded
with her alternative ground only.
[5]
The Mbombela Regional Court found that the agreement was invalid and
unenforceable. The high court, however, overruled this
finding. It
held that the agreement was a binding settlement agreement entered
into between the parties in contemplation of a divorce.
It, however,
did not make the agreement an order of court, as provided for in
s
7(1)
of the
Divorce Act 70 of 1979
, but made declaratory orders
instead.
[6]
The high court, in crafting its order based on the wording of the
agreement, attached its own interpretation to the wording.
It made
the following order:
‘
1.
The appeal is upheld with costs;
2.
The orders made on 27 July 2016 by the learned Magistrate, Mr N A
Khumalo, are herewith set aside and substituted with the following:
“
2.1
It is declared that the defendant is entitled to 50% (FIFTY PERCENT)
of the nett asset value of the plaintiff’s estate,
calculated
as at 10 November 2014, for the purpose of which:
2.1.1
The plaintiff is ordered to pay 50% (FIFTY PERCENT) of the value as
agreed to between the parties, within 14 (FOURTEEN) calendar
days of
such agreement, into the nominated account of the defendant,
alternatively, and failing agreement;
2.1.2
The parties are ordered to a debatement of the nett asset value of
the plaintiff’s estate, and for the plaintiff to
pay 50% (FIFTY
PERCENT) of the nett asset value of the plaintiff’s estate,
within 14 (FOURTEEN) days from final debatement
of the estate as
aforesaid;
2.2
The plaintiff is a member of the KPMG Retirement Annuity Fund with
number M00251518, for the purpose of which it is ordered
that:
2.2.1
The defendant is entitled to 50% (FIFTY PERCENT) of the value of the
aforementioned fund, as at 10 November 2014;
2.2.2
In terms of
section 7(8)
of the
Divorce Act, Act
70 of 1979, and
Section 37D(1)(e) of the Pension Fund Amendment Act:
2.2.2.1
Payment of 50% (FIFTY PERCENT) of the plaintiff’s interest in
the aforementioned fund must be paid to the defendant,
within 45
(FORTY FIVE) days following the date upon which the defendant has
exercised her selection referred to
infra;
2.2.2.2
The fund must within 45 (FORTY FIVE) days after the submission of
this order by the defendant to the Fund, request the appellant
in
writing to exercise her selection with reference to payment of 50%
(FIFTY PERCENT) of the plaintiff’s interest in the
Fund to the
defendant directly, alternatively transfer the 50% (FIFTY PERCENT) of
the plaintiff’s interest to a fund as nominated
by the
defendant.
2.3
If the parties are unable to come to a resolution of the quantum of
the amount payable by the plaintiff to the defendant pursuant
to the
debatement anticipated above, the aggrieved party is granted leave to
approach this court on application for appropriate
relief.
2.4
It is declared that the plaintiff is liable to make monthly
maintenance payments to the defendant in the amount calculated as
50%
(FIFTY PERCENT) of his nett monthly income as from the date of their
divorce.
3.
The plaintiff is ordered to pay the costs of the action.’
[7]
The high court evidently interpreted the words ‘volle helfte
van my boedel’ to mean the nett asset value of the
appellant’s
estate. It added to the words ‘50%. . . . pensioen sal
oorbetaal’ to mean that the appellant had
to pay to the
respondent 50 per cent of the value of the KPMG Retirement Annuity
Fund as at 10 November 2014. And it interpreted
the words ‘en
elke maand 50% van my netto inkomste / dividend aan haar sal
oorbetaal’ to mean that the appellant had
to pay half of his
nett monthly income to the respondent, from the date of divorce.
[8]
In arriving at its conclusion that the agreement was valid and
enforceable as a settlement agreement, the high court reasoned
as
follows:
(a)
When one considers the wording of the agreement read within context,
it must be borne in mind that the nature of the contractual
relationship between the parties was that of a married couple whose
marriage had irretrievably broken down and who were contemplating
a
divorce.
(b)
Reduced to its bare essentials, the parties’ rights and
obligations in terms of their agreement was that the appellant,
who
wanted a divorce, gave half of his estate to the respondent.
(c)
The wording clearly conveys that the appellant not only intended the
respondent to be entitled to half of his estate, but also
that he
would maintain her.
(d)
Any doubt in this regard was removed by the appellant’s
commitment to pay to the respondent half of his nett income /
dividend and pension every month according to the standard of living
she was used to.
[9]
Counsel for the appellant’s first line of attack was whether
the agreement could be said to be an agreement at all. While
the
language at first blush appears to support the contention that it was
not an agreement, but rather a unilateral act of waiver
or
abandonment of matrimonial property rights by the appellant, it is,
in the view that I take of the matter, not necessary to
decide this
point. For present purposes I am prepared to accept that the
agreement was entered into between the parties. The central
question
is whether it was made in contemplation of a divorce.
[10]
It is settled law that a court may only make an agreement between
parties an order of court if it is competent and proper to
do so.
First and foremost, the agreement must, either directly or
indirectly, relate to a legal issue or lis between the parties.
It
must bear some relation to litigation. (
Eke v
Parsons
[2015] ZACC 30
;
2015 (11) BCLR 1319
(CC);
2016 (3) SA 37
(CC) para 25). This means that, while it is not
necessary for divorce proceedings to have been instituted at the time
of the signing
of the agreement (ie 10 November 2014), a divorce must
have been contemplated by the parties at that time. The respondent
who,
as stated, counterclaimed on the agreement, bore the onus of
proving this fact on a preponderance of probabilities. For the
reasons
that follow, I am of the view that the respondent failed to
discharge this onus. As I shall demonstrate, the respondent’s
own evidence failed to establish that divorce was in the parties’
contemplation when the agreement was concluded.
[11]
As stated, the parties resumed a normal marital relationship after 10
November 2014 until 30 November 2014. This was common
cause at the
trial. The respondent testified that during this period their
marriage relationship was normal, which included the
exercise of
conjugal rights. This is destructive of the notion of a breakdown in
the marriage, let alone irretrievably so. On the
respondent’s
version, the agreement was an ‘insurance policy’, to
allay her fears of insecurity in the event
of a divorce. In this
regard it is significant that she had left the agreement for
safekeeping with friends after it was signed
on 10 November 2014. The
respondent regarded the agreement as an ‘undertaking’ by
the appellant to address her financial
needs in the event of a
divorce.
[12]
During the evening of 29 November 2014, the respondent gained access
to the appellant’s mobile phone, and she discovered
photographs
suggesting that the appellant’s extramarital relationship was
continuing. These put paid to the falsehood peddled
at that time by
the appellant that his extramarital affair was a thing of the past.
An even more devastating discovery on the appellant’s
mobile
phone emanated from an e-mail sent to him by his attorneys. The
e-mail’s content concerned a possible divorce and
attached
thereto was a draft settlement agreement, presumably for the
appellant’s consideration as a basis for settling a
potential
divorce action.
[13]
As stated, at that time there were no divorce proceedings pending;
the summons was only issued on 15 January 2015. This discovery
led to
the confrontation of 30 November 2014. When pressed by the respondent
to explain the draft settlement agreement, the appellant
indicated
that he wanted a divorce and that he preferred it to be done as
‘neatly’ as possible. When asked in cross-examination
if
that was the first time that either one of them had mentioned a
divorce, the respondent replied in the affirmative. I deem it
necessary to repeat this important passage verbatim, as it, in my
view, conclusively destroys the basis for the counterclaim:
‘
Goed
en wat het die eiser toe vir u gesê? Het hy vir u toe nou gesê
maar ek gaan jou nou dagvaar vir ‘n egskeiding
of ek soek my
vryheid, hoe het hy hierdie skikking dokument verduidelik? --- Hy het
vir my gesê hy het ‘n egskeidings
dokument laat optrek by
Heilet, hy wil graag van my, hy wil van my skei op ‘n mooi
manier en hy wil dit met my bespreek.
Hy wil nie meer aangaan met die
huwelik nie en daar is sekere maniere hoe ‘n mens ‘n
egskeiding doen, die maklikste
manier is om ‘n skikking te
bereik voordat jy ‘n dagvaarding uitreik en as ek die dokument
sal teken dan sal hy dit
na Heilet toe vat en dan sal, dan kan ons
dit afteken en gaan indien en ek het vir hom gesê ek wil eers
‘n regsopinie
kry, ek weet nie hoe werk dit nie, ek weet nie
wat hier aangaan nie en ek weet nie wat hier is nie maar hierdie
dokument lyk glad
nie in lyn met die dokument wat hy geteken het die
10de November nie.
So
dit is die eerste keer volgens u getuienis wat hy vir u gesê
het hy wil van u skei --- Dis reg.’
[14]
On the respondent’s version it must be accepted therefore that
it was only on 30 November 2014 that the divorce was contemplated
for
the very first time by the parties. The respondent’s testimony
and the objective facts lead ineluctably to the conclusion
that the
agreement did not embody the settlement of any lis, more particularly
a divorce action. No divorce was contemplated when
the agreement was
signed on 10 November 2014. In the premises, the high court erred
when it upheld the appeal and concluded that
the agreement was a
valid and enforceable settlement agreement. We were informed from the
bar that the parties’ marriage
had in the meantime been
dissolved by order of the Mbombela Regional Court, in December 2016.
All that remains is the issue of
maintenance for the respondent and
any child who may still be dependent (both children have by now
reached the age of majority,
but may still be dependent on their
parents, for example as fulltime students). For that purpose the
matter must be remitted to
the Mbombela Regional Court.
[15]
The following order issues:
1 The appeal is upheld
with costs, including the costs of two counsel.
2 The order of the court
a quo is set aside and replaced with the following:
‘
The
appeal is dismissed with costs.’
3 The matter is remitted
to the Regional Court for the Regional Division of Mpumalanga at
Mbombela, to finalise maintenance for
the respondent, Ms A M, and for
any dependent child.
________________________
S
A Majiedt
Judge
of Appeal
APPEARANCES:
For
Appellant: M C Erasmus SC, with I Vermaak
Instructed
by: Swanepoel & Partners Inc, Pretoria
Symington
de Kok Attorneys, Bloemfontein
For
Respondent: A C Ferreira SC, with S G Gouws
Instructed
by: Schoeman & Associates, Pretoria
McIntyre
van der Post Attorneys, Bloemfontein