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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION – MAHIKENG
Case No: 2422 / 2024
In the matter between:
H[...] M[...] M[...]
(BORN M[...]) APPLICANT
And
E[...] B[...] M[...] 1st RESPONDENT
DOUGLAS CLIFFORD KRUGER 2nd RESPONDENT
GOVERNMENT EMPLOYEES
PENSION FUND 3rd RESPONDENT
CORAM: MAODI AJ
Date judgment reserved: 4 September 2025
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e -mail. The date that the judgment is deemed to be handed
down is 23 March 2026 at 10h00.
ORDER
1. The Prayers 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the
notice of motion are granted.
2. I make no order in respect of prayers 3 to 5. Prayers 3 to 5 of the
notice of motion are referred to the second respondent to be dealt
with in line with his powers.
3. The first respondent to pay costs on scale B including costs of
counsel.
JUDGMENT
MAODI AJ
Introduction
[1] The applicant seeks various orders, amongst them is variation of the
divorce decree under case number DIV94/2018. That the parties’ joint
estate be divided in equal shares, both parties’ pension interests be
endorsed to be divided equally and that pending di vision of the joint
estate, the applicant and her two minor children be allowed to occupy the
immovable property at 1[...] S[...] Close, Unit 0[...], Mmabatho (the
immovable property). The first respondent to vacate such property. The
application is brought in terms of rule 42(1)(c) of the uniform rules of
court and is opposed. The second respondent was appointed receiver and
liquidator of the parties’ estate, however, no order is being sought against
him.
Applicant’s case
[2] The parties entered into a civil marriage on 9 November 2007.
Subsequent to the marriage, the first respondent insisted that the parties
consult his attorneys to conclude an antenuptial contract. This was to
ensure that their marriage regime was out of communi ty of property with
accrual system. On 26 November 2007 the parties signed a document
known to the applicant as an antenuptial contract (the contract). The first
respondent is the one who insisted on this and the applicant had to obey
and abide by same eve n though she was not happy. The attorneys who
attended to the contract are those of the first respondent.
[3] Since 26 November 2007 the applicant had laboured under the impression
that the parties were married out of community of property with the
accrual system. She instituted divorce proceedings against the first
respondent and their marriage was dissolved by the Court on 31 October
2022. Since 2018 she has been providing primary residence for their
minor children. Hence her prayer that she be allowed to occupy the
immovable property. The second respondent was appointed receiver and
liquidator of the parties’ property with certain powers incorporated in the
divorce decree.
[4] On 8 April 2024 the second respondent issued an interim report which
raised concerns about the validity of the contract between the parties. The
main concern was that the antenuptial contract was signed after the
parties had entered into a marriage, rendering their marriage
automatically in community of property as there was no a ntenuptial
contract at the time of marriage. This led to the application before me.
First respondent’s case
[5] The application is brought in terms of rule 42(1) which requires that there
should have been a mistake common to the parties. There has never been
a mistake common to the parties as the parties signed the contract and
knew that they were married out of community of property and out of
community of profit and loss. His insistence on a marriage out of
community of property was to protect his interests given that he had been
married prior to marrying the applicant. He took the applicant to his
attorney to ensure that the applicant understood the consequences of the
matrimonial regime he wanted them to enter into. He also gave applicant
money to seek her own attorney.
[6] The notarial execution and registry of the contract happened on 26
November 2007 which makes it a post -nuptial notarial execution.
However, the contract was entered into before 9 November 2007 and a
certificate confirming same was issued by Smit Stanton Attorneys on 8
November 2008 which is attached to the papers. The applicant only
challenged the contract after the interim report by second respondent. He
is the one who insisted on the conclusion of the contract in order to
protect his interests. The applicant agreed to enter into the contract and it
is valid, given the case of Schimtz v Schimtz [2015] 3 All SA 85 (KZD).
[7] In the divorce proceedings the applicant was represented by attorneys and
pleaded that the marriage was out of community of property. There was
no settlement agreement between the parties and as such the divorce
decree was not granted pursuant to a settlement agreement.
Applicant’s reply
[8] The conclusion of the contract post-nuptial instilled a mistaken belief that
the contract was valid and marriage was out of community of property
with accrual. The first respondent’s admission that he insisted on
conclusion of the contract is a clear indication of lack of free and
voluntary act on her part. She does not know Smit Stanton Attorneys and
denies ever having attended to them. The first respondent has not told the
Court what the marital regime between the parties was between the
period 9 November 2007 to 26 November 2007. The Court in Schimtz
case dealt with an issue of an ante -nuptial contract concluded prior to the
marriage but registered afterwards. There was no agreement or
whatsoever prior to the conclusion of the marriage between the parties.
The authorities and reasons for judgment
[9] There are two major issues that I have to determine. The first being
whether, given the facts and circumstances of this case, the application
falls within the ambit of uniform rule of court 42 (1) (c). The second being
whether the applicant has established grounds for variation of the decree of
divorce under case DIV 94/2018 which will affect the other ancillary
orders sought.
[10] Rule 42 provides as follows:
“(1) The court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in
the absence of any party affected thereby;
(b) An order or judgment in which there is ambiguity, or a patent error
or omission, but only to the extent of such ambiguity, error or
omission;
(c) An order or judgment granted as a result of mistake common to the
parties.
(2) Any party desiring any relief under this rule shall make application
therefor upon notice to all parties whose interests may be affected by any
variation sought.
(3) The court shall not make any order rescinding or varying any order or
judgment unless satisfied that all parties whose interests may be affected have
notice of the order proposed.”
[11] The major issue under sub -rule 42(1)(c) is whether there was mistake and
whether the mistake was common to both parties. The rule gives the court
a discretion which must be exercised judicially.
[12] It is common cause that at the time the parties entered into and solemnised
their marriage, there was no ante -nuptial contract in place. The respondent
himself has admitted that the contract was only entered into on 26
November 2007 whereas the marriage wa s entered into on 9 November
2007. Therefore, at the time the divorce decree was granted, both parties
laboured under the mistaken position that their marital property regime
was one out of community of property with accrual system. That this was a
mistake is clear from the common cause I referred to above.
[13] The application is targeted at the order or judgment to be varied itself and
not the pleaded case of the parties. However, in order to ascertain if the
order was based on mistake common to the par ties, the parties’ pleaded
case has to be considered. Simply put, w as the judgment based on a
mistake as pleaded by the parties, not the introduction of a case which was
not pleaded. There must be a link between the order sought to be varied
and the cause of action or defence with the evidence, as the case may be.
The pleaded case is very important.
[14] The authorities are clear that the mistake must be common to the parties.
“This means that both parties are mistaken as to the correctness of certain
facts; such a mistake occurs where both parties are of one mind and share
the mistake. A typical case would be where the parties had agr eed upon a
statement of facts which was afterwards found to be incorrect .” See
Erasmus, Superior Court Practice, Second Edition, Van Loggerenburg,
Volume 2, Juta at D1 Rule 42-32.
[15] This approach was postulated in the case of Tshivhase Royal Council and
Another v Tshivhase and Another, Tshivhase and Another v Tshivhase
and Another 1992 (4) SA 852 (AD) and applied in the case of R v R 2023
(9) BCLR 1126 (CC) at par 50 where the court stated as follows:
"[50] In Tshivhase, the Supreme Court of Appeal dealt with the
requirements that must be satisfied before rule 42(1)(c) is invoked and said:
“In relation to sub -rule (c) thereof, two broad requirements must be
satisfied. One is that there must have been a ‘mistake common to both
parties’. I conceive the meaning of this expression to be what is termed, in the
field of contract, a common mistake. This occurs where both parties are of
one mind and share the same mistake; they are, in this regard, ad idem . . . . A
mistake of fact would be the usual type relied on. Whether a mistake of law
and of motive will suffice and whether possibly the mistake must be
reasonable are not questions which, on the facts of our matter, arise. Secondly,
there must be a causative link between the mistake and the grant of the order
or judgment ; the latter must have been ‘as a result of’ the mistak e. This
requires . . . that the mistake relate to and be based on something relevant to
the question to be decided by the Court at the time. . . . The principle is that
cannot subsequently create a retrospective mistake by means of fresh evidence
which was not relevant to any issue which had to be de termined when the
which was not relevant to any issue which had to be de termined when the
original order was made. The reason is obvious: the Court would at that time
have had before it no evidence and thus no wrong evidence on the point; hence
there would have been no mistake. Contrast this with the case where the
subsequent evidence is aimed at showing that the factual material which led
the Court to make its original order was, contrary to the parties’ assumption as
to its correctness, incorrect.” (Emphasis)
[16] In casu, the statements of fact which was placed before Hen dricks JP was
that the marriage between the parties was out of community of property as
per the purported ante -nuptial contract between the parties entered into on
26 November 2007. This fact was never disputed by the first respondent.
In fact, the first respondent aligns himself with this fact. This is clearly a
mistake common to the parties.
[17] On the issue of whether the applicant has established grounds to sustain the
application, and the discretion which the court may exercise, the first
respondent referred me extensively to the case of Schimtz v Schimtz
[2015] 3 All SA 85 (KZD) (Schimtz) that although the antenuptial contract
was not registered, it is enforceable as between the parties themselves; and
LAWSA Second Edition (Volume 16 paragraph 114) where he states that
there are no formal requirements for the validity of antenuptial contracts
with the result that informal marriage contracts are valid between the
spouses.
[18] I disagree with the findings in Schimtz and LAWSA as put forward by the
first respondent. The main contention on the ante-nuptial contract is that
the applicant says there was no contract between the parties at the time of
marriage while the first respondent says there was a contract , albeit not
registered. The first respondent relies on a purported certificate issued by
Smit Stanton Attorneys in confirming this unregistered contract. However,
the first respondent has not attached any confirmatory affidavit by Smit
Stanton Attorneys t o that effect. The approach by the first respondent is
untenable and cannot b e allowed. Even if the first respondent had
established some sort of a contract between the parties, if it was not
registered at the time of the marriage it cannot be said to be a n ante-nuptial
contract. The provisions of s 21 of the Matrimonial Property Act , 88 of
1984 (MPA) would have to apply.
[19] This issue was dealt with at length in the case of VVC v JRM and Others
2026 (3) BCLR 234 (CC) when Majiedt J stated as follows:
“[50] The default position for matrimonial property in our country is universal
community of property. Parties who wish to deviate from that norm must enter
into an ANC prior to their marriage, or must fulfil the requirements and follow
the procedure outlined in section 21 of the MPA. As stated, section 7(5) of the
Recognition Act makes section 21 applicable to customary marriages concluded
after the enactment of the Recognition Act, provided that the husband does not
have more than one spouse. In terms of section 21, spouses may jointly apply to
court for authorisation to execute a postnuptial notarial co ntract, which after its
execution has the effect of regulating the future proprietary consequences of the
marriage. Under the common law, ANCs are immutable. This strict principle
was relaxed by the MPA. Any extra-judicial agreement entered into by part ies
that effectively alters the spouses’ matrimonial property system will be invalid.
Self-evidently, an ANC can only be concluded prior to a marriage – this is one
of the essentialia (essential terms) of the contract. Parties can only change their
matrimonial property regime by approaching a court in an application under
section 21 of the MPA. A court order pursuant to section 21 would be the only
instance where the Registrar of Deeds will register a change to the matrimonial
property system.
[58] ... It bears repetition that it is plain that an ANC is immutable and
property system.
[58] ... It bears repetition that it is plain that an ANC is immutable and
that parties cannot execute such a contract postnuptially, save under
section 21 of the MPA.
[66] Those provisions are unequivocal:
(a) Section 86 clearly states that ANCs not registered i n accordance with
section 87 will have no force or effect against persons not party to the contract.
(b) Section 87 stipulates that ANCs must (i) be attested by a notary and (ii) be
registered in the Deeds Registry within 3 months of its execution. Section 87
therefore contains the legislative requirements for a valid ANC.
[67] In light of these provisions, it is inconceivable that parties’ intentions must
be favoured over the statutory regime applicable when parties understand that
the consequence of getting married without an ANC is that the marriage will be
in community of property with profit and loss. To the extent that they were
indeed unaware of this, section 21 of the MPA is available to afford them
flexibility to change their re gime. Moreover, sections 86 and 87 refer to an
“ante” nuptial contract, which means that the agreement must be
concluded before the nuptials. For these reasons, to interpret the phrase
otherwise would result in an absurdity.
[111] Judicial oversight when changing matrimonial property regimes is not a
mere formality and is no trivial matter at all. It is a structured process which
must be fully motivated – the section requires that there must be sound reasons
for the change – and must be considered by a judge. That process may give the
parties an opportunity to pause and reflect on the change being effected. This
may give a weaker spouse time to obtain sound legal advice or think carefully
about the effect that the proposed change may have on her financial position.
The second judgment’s criticism of this observation loses sight of the fact that a
reason the weaker spouse may be more careful may be because at the time of
the change in matrimonial property regime, the weaker spouse may, thro ugh the
marriage, have acquired some assets and wealth with which she does not wish
to part. This is different from when the parties first marry and are in an
to part. This is different from when the parties first marry and are in an
impecunious position. There may also be children involved whose interests
they may wish to protect.
[112] Therefore, the section 21 application does not only serve to protect the
interests of creditors. This may be the direct purpose of the section, but there
are plainly benefits for the parties as well, even if only indirectly. A party may
well sign a contract blindly, hence the caution of caveat subscriptor , but it is
difficult to imagine a party being passive throughout a lengthy and detailed
section 21 court process. Through the process, a weaker party may become
better apprised of the c hange being effected and may be in a better position to
recognise prejudice and object to it. The section 21 court process introduces
formality and an impartial umpire to the change in the property system, which is
necessary at all times when spouses are effecting a fundamental change to the
way in which they will deal with their matrimonial property.”
[20] The marriage between the parties is therefore one in community of
property as there was non -compliance with s 21 of MPA. The application
is for variation of the divorce decree. There is no application to review the
powers of the second respondent. I am as such unable to entertain prayers
3; 4 and 5 in the notice of motion. This aspect is left to the second
respondent to consider in line with power s vested in him. The property of
the parties is to be dissolved in line with the marriage of the parties in
community of property.
Costs
[21] I see no reason why costs should not follow the suit.
Order
[22] I therefore make an order as follows:
1. Prayers 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the notice of
motion are granted.
2. I make no order in respect of prayers 3 to 5. Prayers 3 to 5 of the
notice of motion are referred to the second respondent to be dealt
with in line with his powers.
3. The first respondent to pay costs on sca le B including costs of
counsel.
_________________________
J. T. MAODI
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
FOR THE APPLICANT: Adv R. T. Ramolebatsane
Instructed by: Richard & Co. Inc
e-mail: Rams-law@outlook.com
FOR THE FIRST RESPONDENT: Adv N. Kapumha
Instructed by: Kgomo Attorneys Inc
e-mail: phemelo@kgomoattorneys.co.za
Date judgment reserved: 4 September 2025
Date of Judgment: 23 March 2026