SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2019/15013
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
DATE 9/03/2026
SIGNATURE
In the matter between:
W[...] L[...] F[...] (née v[...] F[...]) Plaintiff
and
R[...] S[...] F[...] Defendant
This Judgment was handed down electronically and by circulation to the parties’ legal
representatives by way of email and shall be uploaded on caselines/courtonline. The
date for hand-down is deemed to be on 9 March 2026.
2
______________________________________________________________________
JUDGMENT ON TRIAL-WITHIN-A-TRIAL
(Validity of the Antenuptial Contract)
______________________________________________________________________
MOGOTSI AJ
Introduction
[1] This matter comes before me as a trial -within-a-trial. The central question is
whether the antenuptial contract ("ANC") executed by the parties on 2 September 2004,
two days before their marriage, is legally valid.
[2] The parties are involved in divorce proceedings, and it is common cause that the
marriage has irretrievably broken down. The remaining disputes relate solely to the
applicable marital property regime and the resulting financial consequences of the
divorce.
Procedural history and context
[3] Before turning to the merits, it is necessary to outline the procedural history of this
litigation. The trial commenced on 3 March 2026, approximately seven years after the
summons was issued in 2019. The manner in which the Defendant has conducted
these proceedings is relevant to understanding the context in which the validit y of the
ANC is now challenged.
[4] On 5 November 2019, shortly after the summons was issued, the Defendant
admitted in his plea that the marital regime was governed by an ANC subject to the
accrual system. At that stage, neither party disputed the validity of the ANC.
[5] On 28 September 2020, 16 months later, the defendant amended his plea to
challenge the ANC's validity. This amendment followed the Defendant’s discovery,
3
through the exchange of section 7 declarations, that the Plaintiff’s net worth was
substantially higher than he had previously anticipated.
[6] On 9 June 2021, Lamont J delivered judgment in an application by the defendant
to have the validity of the ANC determined as a separate issue. T hat application was
dismissed.
[7] In his judgment, Lamont J made pertinent observations about the Defendant’s
pleadings. At paragraph 3, he noted:
"The facts alleged are that the assets excluded are not identified. Yet the page of the
contract annexed to the pleadings shows a detailed list of assets. I raised this issue with
counsel. He submitted that the list contains assets to be excluded which cannot be
excluded due to the terms of the Matrimonial Property Act. This is not what is pleaded."
[8] Lamont J further observed at paragraph 7:
"In the circumstances, the issue which the defendant contends is clear -cut is not. Neither
is the issue precisely determined … The main issue is, of course, that the identity of what
is to be separated from the other issues has not been established with certainty, nor has
the right for evidence to be led as opposed to an attack on the pleading been established."
[9] These observations are instructive. They highlight a recurring featu re of the
Defendant’s approach, of shifting and evolving attack on the ANC. The Defendant’s
challenge has moved from a general assertion that excluded assets are inadequately
identified, to a more sophisticated legal argument concerning the exclusion of future
assets and compliance with the Matrimonial Property Act1 ("MPA").
[10] This conduct must be viewed against the backdrop of the parties' respective
financial positions. The evidence shows that the Plaintiff’s estate has performed
considerably better than the Defendant’s since the commencement of the marriage. The
financial stakes are significant.
1 Act 88 of 1982.
4
[11] The Defendant having initially admitted the validity of the ANC , now seeks to have
it declared void.
The parties’ contention
[12] The Defendant contends that the ANC is invalid and void for vagueness, with the
result that the parties are married in community of property ab initio. The Plaintiff, in
contrast, contends that the ANC is valid and that the parties are married out of
community of property, subject to the accrual system as provided for in Chapter 1 of the
MPA.
The antenuptial contract
[13] The ANC is a concise document of three pages. Its material provisions are as
follows:
“1. During the marriage, there shall be no community of property or community of profit
and loss between the parties.
2. The accrual system referred to in Chapter 1 of Act No. 88 of 1984 ("the Act") shall
apply to their marriage from the date of conclusion of the marriage.
3. The following assets and the proceeds thereof shall be excluded from the accrual
system:
a. Any inheritances, legacies, and donations accruing to either party during the
marriage, including the proceeds of trust funds;
b. The following assets belonging to W[...]:
i. Immovable property — Erf 1[...] F[...] Extension 15 Township ; ii. Motor
vehicle — Mercedes SLK 230 ; iii. Discovery shares and all options
thereto; iv. Membership in Clan Percy Property CK 8[...]; v. Endowment
Policies; vi. Retirement annuities with Liberty Life and Sage ; vii. All
5
jewellery, except the engagement ring ; viii. All pension and provident
funds.
c. The following assets belonging to R[...]:
i. Immovable property — Erf 9[...] F[...] G[...] ; ii. Motor vehicle — Land
Rover TD5 ; iii. Existing furniture and electrical equipment, currently
valued at R300,000.00 ; iv. All current offshore investments ; v.
Retirement annuities with Liberty, Old Mutual, and Sanlam ; vi. All
pension and provident funds.
4. In terms of section 6 of the Act, the parties declared that the net value of their
respective estates at the date of execution is:
a. W[...] — Nil
b. R[...] — Nil".
The legal framework
[14] Section 6 of the MPA provides:
"When a marriage is dissolved by divorce, the court may on the application of a spouse
against whom an order for division of accrual is sought order that the net value of the
other spouse's estate at the commencement of the marriage be deemed to be such
amount as the court considers just, having regard to the evidence. In the absence of such
an application, the net value of a spouse's estate at the commencement of the marriage is
deemed to be nil."
[15] Section 6 must be read together with section 4(1)(a) of the MPA, which defines the
accrual of a spouse's estate as the amount by which the net value of that estate at the
dissolution of the marriage exceeds its net value at the commencement of the marriage.
[16] The applicable principles of contractual interpretation are well established. In Natal
Joint Municipal Pension Fund v Endumeni Municipality2, Wallis JA stated:"
"Interpretation is the process of attributing meaning to the words used in a document …
having regard to the context provided by reading the particular provision in the light of the
2 2012 (4) SA 593 at 603
6
document as a whole and the circumstances attendant upon its coming into existence.
Consideration must be given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision appears; the apparent purpose to
which it is directed; and the material known to those responsible for its production. Where
more than one meaning is possible, each possibility must be weighed in light of all these
factors. The process is objective, not subjective. A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike results , or that undermines the apparent
purpose of the document."
[17] This approach has been consistently affirmed by the Constitutional Court.3
[18] In the context of antenuptial contracts specifically, a court must have regard to the
statutory framework within which such contracts operate. As held in RP v PP 4 , a clause
must be construed within the context of the antenuptial contract as a whole, the
prevailing law governing the proprietary consequences of marriage, the parties'
intention, and the purpose for which the provision was included.
[19] Both parties placed significant reliance on the Full Bench decision of this Division
in FB v FR5 ("the Sutherland judgment"). What is notable about that decision is that the
court did not declare the entire ANC void. Rather, it made a declaration as to which
assets fell to be excluded from the accrual, thereby upholding the validity of the contract
while giving effect to the statutory framework.
Evaluation
[20] The Defendant placed emphasis on the word "conclusion" as used in paragraph 2
of the ANC. Read in context, the word plainly refers to the commencement of the
marriage and in my view, this does not give rise to ambiguity.
[21] The word "proceeds" does not appear in section 4(1)(b)(ii) of the MPA, which
refers to "any other asset which he acquired by virtue of his possession or former
refers to "any other asset which he acquired by virtue of his possession or former
3 National Credit Regulator v Opperman 2013 (2) SA 1 (CC), Airports Company South Africa v Big Five Duty Free
(Pty) Ltd 2019 (5) SA 1 (CC), and University of Johannesburg v Auckland Park Theological Seminary 2021 (6) SA 1
(CC).
4 2016 (4) SA 226 (KZP).
5 [2019] (4) SA 145 (GJ).
7
possession of the first-mentioned asset." The parties' use of "proceeds" appears to
have been intended to encompass the fruits of excluded assets such as dividends,
interest, or sale proceeds. To the extent that "proceeds" covers assets acquired by
virtue of possession or former possession of excluded assets, such assets would, in any
event, be excluded under section 4(1)(b)(ii) of the MPA.
[22] However, if the parties intended "proceeds" to carry a broader meaning that would
exclude assets falling outside the scope of section 4(1)(b)(ii), that intention would be
legally ineffective as it would be contrary to the MPA.
[23] Defendant conceded that some of the assets listed in the ANC are capable of
identification by reference to extrinsic evidence. Having carefully considered the
relevant paragraph, I am satisfied that all of the listed assets can, in fact, be identified
through extrinsic evidence. The circumstance that some assets may have been
disposed of during the marriage, or replaced by other assets, does not render their
description vague. It merely raises the question of whether the replacement assets fall
within the exclusion, a question to be resolved by application of s ection 4(1)(b)(ii) of the
MPA.
[24] The Defendant's counsel asserted that there is a contradiction between
paragraphs 3 and 6. Paragraph 3 removes all the parties' current assets from the
accrual calculation. Paragraph 6 records the net value of each party's estate at the date
of execution as "NIL." Because paragraph 3 excludes all existing assets from the
accrual system, there is literally nothing left to place in the "accrual estate" on the day
the parties sign. Therefore, declaring the net value for accrual purposes as "NIL" is not
a contradiction; it is an accurate and logical reflection of the parties' agreement. The
contract is not attempting to both include and exclude the same assets. It clearly
excludes them in paragraph 3 and then, in paragraph 6, confirms that the starting point
excludes them in paragraph 3 and then, in paragraph 6, confirms that the starting point
for the accrual that will grow during the marriage is zero. I am not persuaded by
counsel's submissions in this regard.
8
[25] The Sutherland J’s judgment in the FB V FB 6 establishes the principle that assets
to be acquired after the commencement of a marriage cannot validly be excluded from
the accrual in anticipation of future acquisition. This principle applies directly to certain
items listed in paragraph 3 of the ANC. The Plaintiff conceded in evidence that at the
commencement of the marriage, neither party was a beneficiary of any trust fund, and
she did not own any endowment policies or a Sage retirement annuity. These assets did
not exist at the relevant date. However, this does not render the ANC void in its entirety.
Consistent with the approach in the Sutherland judgment, the appropriate remedy is to
interpret the ANC in a manner that is compatible with the MPA.
[26] In respect of assets that did exist at the commencement of the marriage, such as
the Discovery shares and options, the immovable properties, and the retirement
annuities then in existence, the exclusions are valid. Section 4(1)(b)(ii) of the MPA
expressly permits the exclusion of such assets.
[27] The Plaintiff’s contention that her after -acquired Discovery shares were obtained
pursuant to a share options scheme in which she held a real right before the marriage
raises a factual question that was not fully ventilated in this trial -within-a-trial. If such
rights did exist at the commencement of the marriage, shares subsequently acquired
through the exercise of those rights may fall within the exclusion. This is a matter to be
determined at the main trial, with the Plaintiff bearing the onus of proof and does not
invalidate the ANC.
[28] The parties consulted with a notary, gave instructions, and signed the ANC. Both
testified that they understood the legal implications of what they were signing. The
notary was, presumably, satisfied that the document gave effect to the parties'
intentions. To attack the ANC on the basis of linguistic imprecision when the parties'
intentions. To attack the ANC on the basis of linguistic imprecision when the parties'
common intention is not in dispute is to elevate form over substance.
[29] Having considered the ANC, the applicable legal principles, the submissions of
counsel, and the broader context of this litigation, I am satisfied that the ANC entered
into by the parties is valid.
6 2017/5018A Gauteng Local Division
9
Order
[30] In the circumstances, I make the following order:
1. The antenuptial contract concluded by the parties on 2 September 2004 is
declared valid.
2. The parties are married out of community of property, subject to the accrual
system as provided for in Chapter 1 of the Matrimonial Property Act 88 of
1984.
3. The matter is to proceed to the main trial for the determination of the
patrimonial consequences of the divorce in light of this judgment.
______________________________
P J MOGOTSI
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel for plaintiff: Adv John Kayser
john.kayser@law.co.za
Attorney for plaintiff: Ms Anthea Denton
DHD Attorneys
anthea@dhdattorneys.co.za
Counsel for defendant: Adv Willie Davel
davellegal@gmail.com
Attorney for defendant: Ms Sian Richardson
10
Sian Richardson Attorney sian@srattorney.co.za
Date heard: 4 March 2026
Date of Judgment: 09 March 2026