SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
CASE NO: 623/2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 30/07/2026
SIGNATURE
In the matter between
B[...] E[...] M[...] PLAINTIFF
and
G[...] H[...] M[...] DEFENDANT
This judgment was handed down electronically by circulation to the parties’ representatives by email.
The date and time for the hand-down of the judgment is deemed to be 30 July 2026 at 10h00
JUDGMENT
MONENE AJ
2
Introduction
[1] The plaintiff instituted divorce action proceedings against the defendant
in the backdrop of their civil marriage which had been concluded, as per
their marriage certificate, on 13 January 2016.
[2] In her particulars of claim the plaintiff pleaded that post the marriage the
parties had sought to change their marital regime to one out of
community of property with accrual per post -nuptial contract executed
on 19 January 2016 and registered with the Deeds Registry on 26
January 2016.
[3] Pleading that the marriage continued to be one in community of
property on account of the post -nuptial contract not being valid ,
according to the plaintiff, for want of compliance with section 88 of the
Deeds Registry Act 47 of 1937, the plaintiff prays for a decree of
divorce, division of the joint estate and spousal maintenance for a year.
[4] In his plea, the defendant admitted the marriage date of 13 January
2016 as well as the marital regime as pleaded by the plaintiff but
posited that their marriage had since become out of community of
property with accrual on account of the post -nuptial notarial contract
which he held out as valid. He agreed that the marriage cried out for
dissolution but contested equal division of the estate on the basis that
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there was no joint estate while also denying there to be a basis for the
plaintiff to be granted spousal maintenance.
[5] The aspects of maintenance of the parties’ two minor children, their
primary care and related parental rights was not a live issue before this
court as the parties have already struck an agreement on that duly
endorsed by the family advocate.
[6] The issues for determination therefore are whether there was, post the
marriage, a lawful and valid change of the marital regime and whether
the plaintiff is entitled to spousal maintenance.
[7] Both parties testified before this court pursuant to assisting this court to
untie the two knots identified immediately above, the gravamen of which
evidence will be briefly stated infra prior identification and application of
relevant legal instruments to the factual matrix.
The parties’ oral evidence in brief
[8] Thirty-four-year-old plaintiff confirmed the parties’ marriage date and
regime as stated supra and also evinced by the marriage certificate
admitted into evidence with the defendant’s consent. Confirming the
post-nuptial notarial agreement and its intended change of their marital
regime and her participation therein, she stated that it remained invalid
4
for want of compliance with legal instruments the effect of which was
that their marriage remained in community of property.
[9] She confirmed that maintenance of the minor children and related
parental rights and obligations were not issues before the court as the
parties had found each other thereon. She testified that she had no
source of income and because during the marriage’s subsistence she
was maintained by the defendant she was entitled to rehabilitative
maintenance in the amount of R5 000.00 per month for a year.
[10] Cross examination of the plaintiff elicited that the parties had , during
their courtship stage, agreeably discussed marriage out of community of
property, that the defendant had on their marriage date at the home
affairs offices enquired about marriage out of community of property
and been advised that a lawyer’s intervention was needed for that . She
was made to concede that post the marriage date of 13 January 2016
the parties had attended to the home affairs offices again for
“solemnization” of the marriage or something to that effect . It sounded
to this court , at this stage , that the defendant was insinuating further
that the marriage was not concluded on 13 January 2026 but was rather
some part -heard ceremony which was only finalized on a subsequent
visit to the marriage officer’ offices on 15 January 2016. It was further
intimated, in somewhat challenging the spousal maintenance prayer,
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that the plaintiff had ignored improving herself academically for
purposes of being able to earn a living independent of the defendant.
[11] The defendant testified that he was a 50-year-old senior laboratory
technician earning an average salary of R24 000.00 per mont h. He
stated that he had always sought to be married out of community of
property so as to protect his pre -marriage acquired assets, had had
positive discussions about his views with his then girlfriend , the plaintiff,
prior marriage and that on 13 January 2016 he had in the process of
getting married been advised that to facilitate a marriage out of
community of property he needed the services of a lawyer. According to
him the officiation of their marriage ceremony on 13 January 2016 had
not been completed as it had been put on hold for them to get the
services of a lawyer to assist with a notarial contract aimed at making
their marriage out of community of property. Thus, they only got
married, as per his evidence, on 15 January 2016 after signing the said
notarial contract on 14 January 2016 . That, his version went, made the
contract an ante-nuptial one and not post-nuptial.
[12] The defendant testified further that he was financially in dire straits as
he was stretched by child maintenance and other financial obligations
already. He thus, his evidence proceeded, was not in a position to
afford payment of spousal maintenance.
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[13] He stated further that he only became aware of the date of his marriage
and the in community of property regime stated on the marriage
certificate upon being served with divorce summons and that according
to him the home affairs office had mistakenly recorded his marriage as
being dated 13 January 2016 instead of 15 January 2016. He stated
rather innocently and with obvious sincerity, “I honestly knew myself to
be married out of community of property throughout my marriage.
[14] Cross-examination of the defendant elicited, in the main, that the
defendant’s evidence contradicted his plea which accepted the
marriage certificate captured date of marriage and marital regime, that
he was until trial date not privy to what he admitted in his plea and that
he did not recall whether he had informed the attorneys who assisted
with drafting the notarial agreement that they had already been to a
marriage ceremony at home affairs prior approaching the attorneys.
Application of the relevant legal instruments
Ad whether the marital regime was lawfully changed
[15] While I found the defendant to have testified with credible about his
intentions to be married out of community of property, about his ignorant
belief that the marriage ceremony on 13 January 2016 had been held in
abeyance until 15 January and about his mistaken belief that he was
married out of community of property, I have to, sentiments aside, state
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that, parties being bound by their pleadings and the marriage certificate
being properly admitted evidence before this court, a finding that the
parties got married on 13 January 2016 is inescapable. The defendant
cannot in our law plead admission of the marriage certificate details and
testify contrary to that admission. About that, the law is trite and needs
no belaboring. Whether or not the defendant made an honest mistake
and/or was poorly advised at pleading stage and/or was honestly
ignorant in not perusing his marriage certificate for once during the
subsistence of the marriage and whether the plaintiff is evincing some
levels of opportunism on the facts or not is, of no legal moment. We
owe fidelity not to sentiment but to the law which captives us all in
precedence and assures us justice is served.
[16] I then must determine the question of the validity of the intended
change of marital regime as having been carried in a post -nuptial
agreement as it was entered into after the marriage date, to wit, 13
January 2016.
[17] In that regard the law is free from complications and needs no legal
gurus to help unravel. Section 21(1) of the Matrimonial Propert y Act 88
of 1984 (“Matrimonial Property Act”) provides that p arties which aspire
to change their marital regime must jointly apply to court praying for
such a change. There are a few procedural essentials which must be
satisfied such as giving notice to creditors of the spouses to obviate
8
them being prejudiced and proof of solvency on the part of the spouses.
It is only once a court has ordered a change of a marital regime that a
post-nuptial contract is registered with the Deeds Office to formally
effect the change. A registration of a contract by a notary after the
marriage date as in casu is of no force and effect. It does not change a
matrimonial property regime . It is a different matter if the notarial
contract is entered into pre -marriage. That is, on the pleaded case, not
the case in casu.
[18] As recently as 21 January 2026 the apex court in the land, in declaring
a contract which purported to change the marital regime post marriage
without employing section 21 of the Matrimonial Property Act invalid ,
stated in no uncertain terms as follows in VVC v JRM and Others 2026
(3) SA 1 (CC)(“VVC”) at para 50:
“[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…in terms of section 21, spouses may jointly apply to
court for authorization to execute a postnuptial notarial
contract…Any extra -judicial agreement entered into by parties
that effectively alters the spouses’ matrimonial property system
will be invalid…”
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[19] At paragraph 77 of VVC the Constitutional could not have been clearer
about the position in our law that outside the provisions of section 21 of
the Matrimonial Property Act there is no other mechanism in terms of
which a matrimonial property regime can be changed.
[20] In that regard therefore the fact that the plaintiff was a willing participant
in the signing of a notarial agreement post the marriage date of 13
January 2016 is of no m oment at all because as reasoned by the apex
court in VVC at para 67, an authority to which I was correctly and ably
referred by counsel for the plaintiff, that “…It is inconceivable that
parties’ intentions must be favored over the statutory regime
applicable…”
[21] In the pleadings both parties sought to somehow argue for the validity of
the post nuptial contract invoking section 88 of the Deeds Registry Act
47 of 1937. I am unable to understand that reasoning at all seeing that
the said statutory provision deals expressly with post -nuptial execution
of antenuptial agreements and in that context, what is post being the
execution and not the entering into the agreement. Whether that
reasoning was informed by a misunderstanding or conflation of what is
ante and what is post or whatever, I find it manifestly unsustainable in
the light of the law on admissions made in pleadings and VVC, both
referred to supra.
10
Ad spousal maintenance claim
[22] Since many moons ago in Strauss v Strauss 1974 (3) SA 79 (A) it is
established law that at divorce there is no inherent right to spousal
maintenance due to any spouse nor corresponding inherent duty. What
must obtain in the determination of a spousal maintenance claim at
divorce is a balancing act between the needs and the abilities of the two
spouses factoring into the matrix , inter alia, the earning capacities,
ages, duration of marriage, the existing or prospective means of each of
the parties and the standard of living during the subsistence of the
marriage.
[23] Save for indicating that she is unemployed and has been so
unemployed for the duration of the marriage, the plaintiff has not really
engaged the basics of proving a need for spousal maintenance at all. All
she has stated is that because the defendant was the only one with a
source of income during the marriage he must maintain her at
R5 000.00 per month for a year. She failed to testify and prove that that
amount or its value in kind was in fact what was given to her during
marriage nor did she prove that given the financial engagements of the
defendant with regard to children’s schooling, clothing, shelter and food,
his R24 000.00 income can afford a spousal maintenance deduct ion of
R5 000.00 per month for a year. No proper compelling factual basis has
11
been laid to persuade this court to exercise its discretion in favour of the
plaintiff’s claim at all.
[24] The defendant testified , on this score, that he was earning R24 000.00
a month and was solely financially responsible for the two minor
children’s upkeep, the house the kids and plaintiff reside in and his own
rented place. His evidence that the plaintiff has over the marital years
intermittently been able to do informal types of jobs for some income
was not countervailed. Equally uncontroverted was his evidence that he
had over the years of married life sustained and maintained his family
by sending money to the children’s banking accounts so that he could
monitor the proper utilization thereof by the plaintiff on account of him
being electronically linked to those accounts as opposed to sending
money directly to the plaintiff whose spending habits and financial
prudence he was not a fan of.
[25] Applying the above -stated tools on the determination of spousal
maintenance at divorce, particularly as reflected upon in Grasso v
Grasso 1987 (1) SA 48(C) at para 52 and by the SCA in EH v SH
2012(4) 164(SCA) at para 13 and in general , I am persuaded that,
given the heavy and important financial obligations of the defendant ,
particularly with regard to the upkeep of the two minor children , the
meagre income he generates monthly and the financial lifestyle of the
parties during the duration of the marriage , an order for spousal
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maintenance against the defendant will be unjust and misplaced. The
defendant simply does not have the financial ability to pay spousal
maintenance over and above his other financial obligations. Despite his
ignorance of matters legal and casual approach to his matter regarding
what was pleaded on his behalf, he struck this court as a very
responsible parent over his children who, having now agreed to the
plaintiff being granted primary care of the children , has not and will
leave neither the children nor their mother to struggle economically.
Whole families in this country are known to survive with child support
grants far lesser than what the defendant would and will advance for the
upkeep of his children. The defendant does not need to be ordered to
maintain the plaintiff and, I reiterate, cannot, on the facts before me,
afford to so be obligated. Beyond that , the plaintiff can always subsist,
like millions of others in this country, on intermittent informal jobs as she
has done before or on social security grants or avail herself to the
benevolence of kith and kin as she probably did prior marriage. These
are tough economic times for everybody in this country and hardly do
we see anybody starving in the streets owing to divorce. The plaintiff ,
having been able to afford legal representation for this matter , can and
should be able to be resourceful under this difficult economic
environment to fend for herself. Above all, whatever the plaintiff gets
from the division of the joint estate ought to be sufficient to assist her to
‘rehabilitate’ herself post the divorce.
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[26] In the result the plaintiff’s spousal maintenance claim must fail.
Costs
[27] I see no reason why any of the parties in this matter deserves to be
mulcted with costs. No party is ever successful in divorce proceedings
as, having entered the institution with much hope for a bright future
pregnant with all manner of gains, they both lose at divorce. Additional
thereto, none of the parties conducted themselves in any manner
attracting this court’s frown.
[28] Thus, l am inclined to exercise my discretion in favour of each party
paying its own costs.
Order
[29] Resultantly, the following order is made:
29.1. The post-nuptial contract entered by the parties after their
marriage is declared invalid.
29.2. A decree of divorce dissolving the bonds of marriage between the
parties is granted.
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29.3. The marital joint estate shall be divided equally between the
parties.
29.4. An endorsement into the records of the SAPPI Pension Fund for
payment of fifty(50) percent of the defendant’s pension interest
held with the pension fund under Identity number 7[...] in favour
of the plaintiff is ordered to be made within fourteen (14) days of
this order and consequent payment thereof to be paid directly to
the plaintiff within sixty(60) days of the pension f und becoming
aware of this order.
29.5. The plaintiff’s claim for spousal maintenance is dismissed.
29.6. Parental rights and responsibilities as contemplated in section
18(2) of the Children’s Act 38 of 2005 in respect of the parties’ two
minor children are awarded to both parties with primary residence
awarded to the plaintiff subject to the defendant’s rights of access
and contact.
29.7 Each party must pay its own costs.
_________________________________
Malose S Monene
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)
15
APPEARANCES
Heard on : 29 April 2026
Judgment delivered on : 30 July 2026
For the Plaintiff : Mr. S E Nhlabathi
: Instructed by: Adv. SE Nhlabathi
Chambers
: Tel: 031 591 3298
:Email:adv.senhlabathichamber@gmail.com
For the Defendant : Mr. M M Labe
: Instructed by: M M Labe Attorneys,
Mbombela
: Tel: 013 752 3767
: Email: admin@labeattorneys.co.za