SAFLII Note: Certain personal/privat e 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
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: 100792/2025
In the matter between:
N[...] M[...] O[...] Applicant
and
C[...] P[...] V[...] Z[...] First Respondent
H[...] J[...] V[...] E[...] O[...] Second Respondent
THE REGISTRAR OF DEEDS, CAPE TOWN Third Respondent
In Re: in the matter between:
C[...] P[...] V[...] Z[...] First Applicant
H[...] J[...] V[...] E[...] O[...] Second Applicant
and
N[...] M[...] O[...] First Respondent
THE UNKNOWN FAMILY MEMBERS OF Second Respondent
N[...] M[...] O[...]
THE UNKNOWN UNLAWFUL OCCUPIERS Third Respondent
THE HESSEQUA LOCAL MUNICIPALITY Fourt Respondent
Neutral citation: (O[...] v V[...] Z[...] and Others; V[...] Z[...] and Another
v Oliver and Others; Case no: 1100792/2025 [2026]
ZAWCHC (1 June 2026)
Coram: LOUW AJ
Heard: 1 June 2026
Delivered: 12 June 2026
EX TEMPORE JUDGMENT
Louw AJ:
Introduction1
[1] This matter concerns two applications. The first application is brought
by Mr C[...] V[...] Z[...] (‘the grandson’), the holder of a usufruct over
1 This introductory section has been adapted from the ex tempore judgment delivered in court to facilitate
greater clarity and coherence and paragraphs 1 to 3 have therefore been added. It is intended to assist in
following the reasoning set out in the ex tempore judgment that follows from paragraph 4 onwards, as well
as to provide a clearer understanding of the orders granted in respect of both matters before the court,
namely the eviction application and the counter application for the setting aside of the usufruct upon which
the eviction application was founded. For ease of reference and readability, it also sets out how the parties
are referred to throughout the judgment.
an immovable property, namely Erf 1[...], Still Bay and owned by his
grandfather, Mr H[...] O[...], seeking the eviction of Mr O[...]’s
spouse, Mrs N[...] O[...], who resides on the property (previously the
matrimonial home of the spouses). This application will be referred to
as ‘the eviction application ’. In this application, Mr V[...] Z[...] is the
first applicant and Mr O[...] the second applicant. Mrs O[...] is cited as
the first respondent. The second respondent comprises unknown
family members of Mrs O[...], the third respondent comprises
unknown occupiers, and the fourth respondent is the Hessequa Local
Municipality cited in respect of unlawful occupiers.
[2] The second application arises by way of a counter application brought
by Mrs O[...], in which she seeks an order setting aside the usufruct.
In this application, Mrs O[...] is the applicant, and Mr V[...] Z[...], as
holder of the usufruct, is cited as the first respondent, with Mr O[...]
cited as the second respondent. The third respondent is the Registrar
of Deeds, Cape Town. Mrs O[...] opposes the eviction application and,
in that context, instituted this counter application , which will be
referred to as ‘the application to set aside the usufruct’.
[3] It was agreed between the parties that both applications should be
heard together. Both applications turn on the validity of the usufruct,
which is central to the relief sought in each. It was further agreed that
the application to set aside the usufruct should be determined first, as
its outcome would have a direct and decisive impact on the eviction
application. Should the usufruct be found to be invalid and set aside, it
would necessarily follow that the eviction application could not be
sustained. The court accordingly proceeded on this basis. In the ex
tempore judgment set out below , particularly dealing with the
application to set aside the usufruct, Mr O[...] is referred to as the
‘donor husband’ and Mrs O[...] as the ‘donee spouse’. Mr V[...] Z[...]
is referred to as ‘the grandson’.
[4] The application to set aside the usufruct deals with the legal effect of a
donation contained in an antenuptial contract, in terms of which the
single immovable property situated in Still Bay (that is, Erf 1[...]) was
to be transferred by the donor husband, Mr H[...] O[...], the second
respondent in this application , to the donee spouse upon the donor’s
death. The present dispute centres on whether, after the registration of
the antenuptial contract, the donor could validly register the usufruct
over that same property in favour of a third party.
The Facts
[5] The parties concluded an antenuptial contract on 17 March 2017,
which was duly registered in the Deeds Registry, Pretoria on 20
March 2017, prior to their marriage on 13 May 2017. In terms thereof,
the donor husband undertook to donate one specific immovable
property, namely the property situated in Still Bay, to the donee
spouse, with transfer to occur upon the donor’s death.2
2 Clause 7 of the antenuptial contract provides that the man hereby undertakes, for the
sake of the aforementioned intended marriage and as a donation proper nuptias, to give
the woman as her exclusive and absolute property right the ERF 1714 STILBAAI upon
the death of the man (in Afrikaans ‘by my afsterwe’). With clause 8 providing the
donations mentioned in schedule 7 above are accepted by the woman with thanks (in
[6] It is common cause that no other property formed the subject of any
such donation. Subsequent to the registration of the antenuptial
contract, and while the marriage still subsists, albeit with divorce
proceedings presently pending, the donor husband purported to grant
and register the usufruct over the Still Bay property in favour of a
third party , his grandson . The usufruct was registered over the
property in favour of the grandson on 28 October 2024.
[7] The donee spouse, who is presently in her eighties, continues to reside
in the matrimonial home. The grandson (third party) in whose favour
the usufruct was registered is approximately twenty years of age, a
fact which, on the face of it, raises serious concerns regarding the
bona fides of the transaction.
[8] It is further relevant that the donor husband’s health has deteriorated
in recent years. However, the evidence indicates that such
deterioration arose primarily from an operation on an old knee injury,
complications arising therefrom, and subsequent septicaemia,
requiring hospitalisation and further medical intervention.
[9] Even after his removal from the matrimonial home by his daughter,
the donor continued to require extensive medical treatment, including
hospitalisation and admission to a step -down facility . There is no
Afrikaans the clause reads ‘[d]ie skenkings genoem in schedule 7 hierbo geno em word
deur die vrou met dank aanvaar’).
cogent evidence before this Court to establish that the donee spouse
contributed to or caused the deterioration of the donor’s health.
The Nature of the Donee’s Right
[10] The donation contained in the antenuptial contract constitutes a valid
donatio propter nuptias.3 Although performance is postponed until the
death of the donor, the agreement gives rise to a vested personal right
in favour of the donee spouse. This is not a donation mortis causa in
this matter, thus it is not capable of revocation. In my view , the
donation in this matter constitutes a donation in lieu of the marriage.
[11] This right (the personal right in favour of the donee spouse) arises
upon the execution and registration of the antenuptial contract and is
binding.4 It is not a mere expectation but an enforceable contractual
entitlement to receive the Still Bay property upon the death of the
donor spouse. The grandson clearly had knowledge of the antenuptial
3 Clause 7 of the antenuptial contract expressly records that the donation is a donatio propter nuptias.
4 It is well established that an antenuptial contract, once duly registered in the Deeds Registry, is binding
not only between the spouses , but also enforceable against third parties. It is apparent from section 86 of
the Deeds Registries Act 47 of 1937 that an antenuptial contract which is not executed and registered in
accordance with the requirements and within the time period prescribed in section 87 of the Deeds
Registries Act will not be enforceable against third parties who are not parties to that contract (Ex parte
Spinazze and Another NNO 1985 (3) SA 650 (A) at 658A -B). The registration of such a contract serves a
publicity function, affording notice to the world of its terms and legal consequences, as recognised in Ex
parte Spinazze above at 658C (see also Ex parte Kloosman et Uxor 1947 (1) SA 342 (T) at 347 and
Johnson and Another v Registrar of Deeds 1931 CPD 228 at 231) . Consequently, third parties are deemed
to have knowledge thereof and are bound by its provisions (H R Hahlo Law of Husband and Wife 5 ed
(1985) at 261 -262). An informal antenuptial contract requires no formalities in order to be effective
between the spouses and any third party who is a party to it. However, informal antenuptial contracts are
not binding on third parties and operate only inter partes (P A van Niekerk Practical Guide to Patrimonial
Litigation in Divorce Actions (Oct 2025, Issue 29) (LexisNexis) in Chapter 1 at para 1.2 ). In the present
matter, however, the antenuptial contract was duly registered in the Deeds Office and is therefore binding
not only between the spouses, but also enforceable against third parties.
contract, including the donation, and this assertion in the papers was
never disputed.
The Simulated Nature of the Usufruct
[12] Having regard to the timing, circumstances, and surrounding facts, I
am satisfied that the purported registration of the usufruct was not a
bona fide transaction. The stark disparity in age between the donee
spouse and the grandson (third party), coupled with the fact that the
usufruct burdens the only property promised to the donee spouse
under the antenuptial contract , supports the inference that the
transaction was simulated.
[13] The only plausible purpose of the usufruct was to defeat or diminish
the donee spouse’s vested right to the Still Bay property in terms of
the antenuptial contract. A simulated transaction, designed to evade a
prior legal obligation, cannot be upheld. The Court is entitled to look
beyond the form of the transaction to its true substance. 5 In substance,
the usufruct was an attempt to avoid the transfer of the property to the
donee spouse.
5 The test for simulation is well established. In Zandberg v Van Zyl 1910 AD 302, the court held that regard
must be had to the true intention of the parties, and not merely to the form of the transaction. In
Commissioner of Customs and Excise v Randles, Brothers and Hudson Ltd 1941 AD 369 the parties
arranged their affair in such a way to avoid the legal consequences and also to hide the real agreement. This
principle, namely that courts will look beyond the form of a transaction to its true substance, has been
consistently reaffirmed in subsequent jurisprudence . For example, in Commissioner for SARS v NWK Ltd
2011 (2) SA 67 (SCA) the court emphasised the importance of examining the commercial substance of the
transaction, and in Roshcon (Pty) Ltd v Anchor Auto Body Builders CC 2014 (4) SA 319 (SCA) the court
confirmed that the primary inquiry remains whether the parties genuinely intended the transaction to
operate according to its terms. Courts will not be misled by the outward form of a transaction where
dishonesty is present. Instead, they will look beyond appearances to determine the true substance of the
arrangement and expose any attempt to disguise its real nature.
The Donor Husband’s Powers and Limitations
[14] While the donor husband remains the owner of the property during his
lifetime, his rights of disposal were contractually limited by the prior
undertaking in the antenuptial contract . The donor husband was not
entitled to act in a manner that undermines or derogates from the
obligation to transfer the property to the donee spouse. The creation of
the usufruct in favour of a third party substantially diminishes the
value and enjoyment of the property and is inconsistent with the
obligation undertaken in the antenuptial contract.
Pending Divorce Proceedings
[15] It is significant that the divorce between the parties has not yet been
finalised and was instituted in this court on 6 December 2023 . The
marriage therefore subsists in law. In these circumstances, any attempt
to evict the donee spouse from the matrimonial home is premature.
The donee spouse’s rights – both as a spouse in an ongoing marriage
and as the holder of a vested personal right under the antenuptial
contract – remain intact until such time as the marriage is lawfully
dissolved and the consequences thereof determined.
Allegations of Misconduct and Ingratitude
[16] No evidence has been placed before this Court establishing conduct
on the part of the donee spouse that would justify revocation of the
donation on the grounds of ingratitude. 6 The suggestion that the donee
spouse contributed to the deterioration of the donor’s health,
particularly in relation to complications following a knee operation, is
without merit and unsupported by the facts.
[17] On the contrary, the medical history demonstrates that the donor’s
condition was the result of a pre-existing injury, surgical intervention,
and subsequent medical complications, including septicaemia.
Furthermore, even after his removal from the matrimonial home, the
donor’s health challenges persisted and required ongoing treatment.
This clearly negates any inference that the donee spouse was
responsible for his condition. In the absence of serious misconduct
directed against the donor, the ground of ingratitude can in any event
not be invoked.
Legal Consequences and Conclusion
[18] The purported registration of the usufruct constitutes both: a breach of
the antenuptial contract, and a simulated transaction designed to
6 A donation in an antenuptial contract is capable of revocation only in limited circumstances. A donation
in the proper sense is a disposition motivated by liberality or generosity, being a transfer effected without
consideration and arising from a spirit of benevolence. Ordinarily, the revocation of such a donation
requires proof of gross ingratitude, slight grounds being insufficient. However, a donation contained in an
antenuptial contract is not a donation properly so called and is therefore not susceptible to revocation on the
basis of gross ingratitude (Wulff v Wulff [1956] 4 All SA 41 (D) at 59; 1956 (4) SA 297 ( D) at 308 ). The
rationale for this exception lies in the nature of such a donation, which is not made out of pure liberality,
but in contemplation of, and in consideration for, the marriage (Commissioner For Inland Revenue v Estate
Hulett 1990 (2) SA 786 (A) at 793F -I). It serves to promote and support the marital relationship, and is for
the benefit of both spouses and their issue (Van Niekerk above fn 4 in Chapter 3 at para 3.4.3.2). In the
present matter, the antenuptial contract expressly records that the donation was accepted by the woman
with thanks, thereby evidencing a completed agreement between the parties.
defeat the donee’s rights. Such a transaction cannot stand where it
prejudices a prior vested right. The donee is entitled to enforce the
antenuptial contract in accordance with its terms, which entails receipt
of the Still Bay property free from any encumbrance improperly
imposed thereafter.
[19] Upon consideration of the evidence and submissions before the court,
the following conclusions are reached. The donation contained in the
antenuptial contract is valid and enforceable. The usufruct granted to
the grandson (third party) is a simulated transaction intended to defeat
that donation. The donor husband was not entitled to burden the
property in this manner. The donee spouse retains her rights under the
antenuptial contract . Any attempt to evict the donee spouse is
premature while the divorce rema ins pending. No grounds of
ingratitude or misconduct have been established. Further, t he
purported usufruct registered over the Still Bay property is declared
unenforceable insofar as it prejudices the rights of the donee spouse
under the antenuptial contract.
[20] Any application for eviction of the donee spouse from the property is
dismissed as premature pending the finalisation of the divorce
proceedings. The donee spouse’s right to receive transfer of the Still
Bay property in terms of the antenuptial contract is confirmed and
protected.
[21] Due to the usufruct having been declared unenforceable and my order
that the usufruct must be cancelled and set aside, the grandson has no
locus standi to continue with the eviction order. In addition, the donor
spouse also has no grounds to evict given the donation contained in
the antenuptial contract is valid and enforceable, and any other matter
regarding the property may be dealt with in the pending divorce
proceedings.
Costs7
[22] Costs fall within the discretion of the court. Punitive costs orders are
not granted lightly and are reserved for instances where a party’s
conduct is dishonest, vexatious, or otherwise deserving of the court’s
strongest disapproval. In the present matter, I consider such an order
not only justified, but necessary. Accordingly, I grant a punitive costs
order on the attorney and client scale, including the costs of both
senior and junior counsel, on scales C and B respectively, where so
employed, in respect of both the applications (being the application to
set aside the usufruct and the eviction application).
[23] The conduct of the donor husband and the grandson warrants
unequivocal condemnation. On the evidence before this court, they
acted in concert in procuring the registration of the usufruct with the
clear and deliberate intention of undermining and defeating the donee
spouse’s rights as secured in the antenuptial contract. The transaction
bears all the hallmarks of a simulation and reflects a calculated
7 Costs were awarded in favour of the donee spouse, as submitted by counsel for the donee spouse . While
my reasons were outlined briefly during my ex tempore judgment in court, I take this opportunity to set
them out more fully here. The purpose of this written explanation is to provide greater clarity and a more
comprehensive justification for the decision regarding costs.
attempt to mislead and to deprive the donee spouse of her lawful
entitlement.
[24] Such conduct is manifestly dishonest and constitutes a serious abuse
of legal process. The subsequent eviction application, founded on this
contrived arrangement, was equally devoid of merit and can properly
be characterised as vexatious. It was pursued notwithstanding the
clear legal position, thereby compounding the prejudice suffered by
the donee spouse. As a direct consequence of this conduct, the donee
spouse was compelled to incur substantial and unnecessary legal costs
in order to vindicate and prote ct her rights. In these circumstances, a
punitive costs order is not only appropriate but required, to mark the
court’s disapproval in the strongest possible terms and to ensure that
such conduct does not go unchecked.
[25] In the application to set aside the usufruct I order:
1. The Notarial Deed of Session of Usufruct, registered in favour
of the first respondent and held under T6820/2024, in respect of
Erf 1[...], Still Bay, Riversdale, Western Cape, registered
against the Deed of Transfer T13670/2017, is cancelled and set
aside.
2. The third respondent is ordered to take the necessary and
required steps to cancel and set aside the Notarial Deed of
Session of Usufruct, registered in favour of the first respondent
and held under T6820/2024.
3. The first and second respondents are ordered, jointly and
severally, the one to pay the other to be absolved, to pay the
costs of this application on the attorney and client scale,
including costs of senior and junior counsel, on scale C and B
respectively, where so employed.
[26] In the application to evict I order:
1. The application is dismissed.
2. The first and second applicants are ordered, jointly and
severally, the one to pay the other to be absolved, to pay the
costs of this application on the attorney and client scale,
including costs of senior and junior counsel, on scale C and B
respectively, where so employed.
_____________________________
M LOUW
ACTING JUDGE OF THE HIGH COURT