Law Reports
ST v CT (1224/16) [2018] ZASCA 73; [2018] …

ST v CT (1224/16) [2018] ZASCA 73; [2018] 3 All SA 408 (SCA); 2018 (5) SA 479 (SCA) (30 May 2018)

81 Reportability

Family Law

Brief Summary

Divorce — Waiver of maintenance — Antenuptial agreement — Clause waiving maintenance upon dissolution of marriage found invalid and unenforceable — Accrual — Party claiming exclusion of assets for accrual calculation must prove compliance with disclosure requirements — Living annuity not included in estate for accrual purposes. The parties, married in terms of South African law, entered into an antenuptial contract that included a waiver of maintenance. Upon divorce, the respondent challenged the waiver's enforceability, leading the court to determine that it was contrary to public policy and thus invalid. The court also addressed the accrual claims, ultimately ordering maintenance payments and the division of accrued assets.

Full Judgment Text (Click to expand)

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[2018] ZASCA 73
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ST v CT (1224/16) [2018] ZASCA 73; [2018] 3 All SA 408 (SCA); 2018 (5) SA 479 (SCA) (30 May 2018)

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THE SUPR
EME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportabl
Case
No: 1224/16
In
the matter between
S
T
APPELLANT
And
C
T
RESPONDENT
Neutral
citation:
ST v CT
(1224/16)
[2018] ZASCA 73
(30 May 2018)
Coram:
Majiedt, Saldulker and Dambuza JJA and Plasket and
Rogers AJJA
Heard
:
26 February 2018
Delivered:
30 May 2018
Summary:
Divorce – waiver of right to claim
maintenance upon dissolution of marriage in antenuptial agreement
invalid and unenforceable
– accrual – party required to
make disclosure of assets in terms of section 7 of
Matrimonial
Property Act 88 of 1984
must establish proper compliance –
party who avers assets excluded from estate for accrual calculation
bears burden of proof
to establish exclusion and also the nexus
between excluded assets and current assets – living annuity not
forming part of
party’s estate for purposes of accrual
calculation.
ORDER
On
appeal from:
Western
Cape Division, Cape Town (Weinkove AJ sitting as court of first
instance):
[a]
The appeal is upheld in part.
[b]
Paragraphs 3, 4, 5, 6 and 7 of the order of the high court are set
aside and substituted with the following (to avoid confusion,
the
paragraph numbering in the court a quo’s order is retained) :
‘
3.
Maintenance:
3.1. The
defendant is directed to pay to the plaintiff maintenance as follows:
(a)
R18 500 per month for one year as from 1 September 2016;
(b) R13 500
per month for one year as from 1 September 2017;
(c) R8500
per month as from 1 September 2018.
3.2.
The obligation to pay maintenance as aforesaid shall endure until the
plaintiff’s death or remarriage, whichever occurs
first. The
maintenance must be paid by way of debit order into such bank account
as the plaintiff nominates from time to time and
by not later than
the first day of each month. The defendant shall be entitled to
deduct from the amounts specified in 3.1(a) and
3.1(b) the amounts of
maintenance already paid pending the appeal.
3.3.
The amounts of maintenance specified in 3.1 above are expressed in
nominal terms as at 1 September 2016. The amounts payable
as from 1
September 2017 and 1 September 2018 respectively, and as from 1
September of each succeeding year, must be adjusted by
the percentage
change in the headline inflation rate (also known as the Headline
Consumer Price Index) as notified by Statistics
SA (or its
equivalent) (‘the index’). Such percentage change shall
for purposes of convenience be deemed to be equal
to the latest index
available from Statistics SA on the anniversary date.
4. The accrual
in the defendant’s estate is held to be R 8 892 482.
5.
The defendant shall pay to the plaintiff half of this amount, minus
R70 000 in respect of the plaintiff’s net restitutionary

obligation, ie a net amount of R4 376 241, by not later
than 1 December 2018. Pending such payment, and as from 5 August

unenforceable. On this limited issue we differ, though we are both
agreed that in the event the waiver is unenforceable. The differing

routes by which we reach this conclusion do not affect the outcome of
the case.
Background
[3]
The parties were married to each other in terms of South African law
on 17 July 1992 in Hamburg, Germany. They signed an antenuptial

contract (the contract) which regulated their marriage.
The
marriage was out of community of property and the accrual system was
included. The appellant, Mr ST, is an experienced

advocate, having taken silk in 1989. The respondent, Mrs CT, is of
German nationality and is also a lawyer, although she never
qualified
as such in South Africa. The parties met in Namibia in 1990 while the
respondent was visiting there. At that time the
appellant, who ran
practices in Johannesburg and Namibia, was an Acting Judge in
Namibia. In December 1991 the respondent discovered
that she was
pregnant with the appellant’s child. On 13 February 1992 the
respondent broke off the relationship, but the
appellant travelled to
Hamburg during July 1992 to propose marriage to her.
[4]
The appellant arrived in Hamburg armed with a comprehensive
antenuptial contract prepared by his Johannesburg attorney, Mr
Alick
Costa, a family law specialist. The appellant proposed
to the respondent and made it clear to her that the contract was an
absolute
prerequisite for marriage. The contract was in English and
the respondent, with the help of a friend, translated it into German.

She sought advice on the contract from, amongst others, a German
commercial and tax lawyer, a friend who was a non-practising lawyer

and worked at a bank, and from her stepfather. It was common cause
that neither the respondent nor any one of these advisers had
a
thorough knowledge of South African matrimonial law.
[5]
The respondent requested the appellant in a letter to postpone the
marriage to December, but the appellant insisted that they
should
marry straightaway. In the letter the respondent expressed her
concern about her disadvantaged position due to her lack
of knowledge
of South African law, particularly relating to the custody of
children. In the event, the parties got married, with
the contract
having been signed the day before the wedding. At that time the
appellant was 53 years of age and the respondent was
28. It was his
second marriage and her first.
[6]
The parties’ first child, a son, was born on 4 August 1992. The
family lived from September 1992 in Johannesburg where
the appellant
ran his advocate’s practice. They lived first in Auckland Park
and then in Saxonwold. He also kept chambers
in Windhoek, Namibia,
and his practice extended to Lesotho and Botswana. Another child, a
daughter, was born of the marriage on
29 September 1994. The parties
moved to Rondebosch, Cape Town, during December 2007. They also
acquired a flat in Parkview, Johannesburg,
which the appellant used
when he was in Johannesburg.
[7]
The marriage relationship broke down finally in early 2010 (there had
been a breakdown and reconciliation earlier, in 1994).
This divorce
action was instituted by the respondent in the high court during
November 2010. She claimed, amongst others, spousal
maintenance, full
particulars of the appellant’s current assets and liabilities
in terms of s 7 of the Matrimonial Property
Act 88 of 1984 (the MPA)
and half of the accrual. The appellant counterclaimed for payment,
under the
actio communi dividundo,
of
property related expenditure on jointly owned properties and for the
return of certain movables. An initial conditional counterclaim
for
nominal maintenance was abandoned at an early stage of the
proceedings. The high court by and large granted the respondent’s

claims and dismissed the appellant’s counterclaims. The
respondent’s claim for spousal maintenance is contrary to
clause 9 of the contract in terms whereof the respondent had waived
her claim for maintenance after the dissolution of the marriage
(the
waiver clause).
The
waiver of maintenance
[8]
Clause 9 reads as follows:
‘
The
intended wife accepts the donation in [clauses] 6 and 8 on the
conditions stipulated therein and in consideration thereof waives
any
present or future right whatever that she has or may have to claim
maintenance for herself (but excluding maintenance for any
dependent
child or children born of the intended marriage) on the dissolution
of the intended marriage in whatever manner and for
whatever reason
and regardless of the conduct of the parties.’
The
donations in clause 6 and 8 were the half share of a residential
property in Twickenham Road, Auckland Park, Johannesburg (the

Twickenham property), and the sum of R300 000, payable in three
annual instalments from 1992 until 1994, respectively.
[9]
The respondent challenged the validity and enforceability of the
waiver clause on four broad grounds:
(a)
that the clause is per se as a matter of legal principle inconsistent
with public policy;
(b)
that the effect of the clause is unreasonable, unfair, unjust and
thus against public policy;
(c)
that the enforcement of clause 9 would be unreasonable and against
public policy; and
(d)
that the court has an ‘overriding discretion’ to award
maintenance, notwithstanding the waiver provisions.
The
high court held that the clause is per se invalid and unenforceable.
The learned judge also upheld the additional three grounds
of the
challenge.
[10]
For the reasons set out in his separate judgment, Majiedt JA upholds
ground (a) and does not find it necessary to consider
the other
grounds. For the reasons stated in his separate judgment, Rogers AJA
upholds ground (d). Either way, we are agreed that
in the event
clause 9 is not enforceable in the present case.
[11]
The high court was thus correct in declaring the waiver to be
unenforceable. This necessitates a consideration of the respondent’s

maintenance claim and the appellant’s claim for restitution of
the donations. But we find it convenient to deal first with
the
difficult question of the claim for accrual, since that determination
will directly affect the question whether any maintenance
should be
paid to the respondent and, if so, in what amount. The adverse
credibility findings made against the appellant, in turn,
may have an
effect on the question of accrual. We discuss next those adverse
credibility findings, together with the favourable
credibility
findings in respect of the respondent’s testimony.
The
high court’s credibility findings
[12]
The high court made several adverse credibility findings against the
appellant. Many of these findings related to the appellant’s

lack of forthrightness and his failure to disclose fully his
financial position. It was contended before us on behalf of the
appellant
that those findings were tantamount to ‘a calculated
crusade of character assassination’, contrary to uncontradicted

evidence, not supported by any reasoned evaluation, and indicative of
the learned trial judge’s patent bias against the appellant.
En
passant
,
it is necessary to record that, after the high court had dismissed
appellant’s substantive application for postponement
well into
the trial, a substantive application for his recusal was bought by
the appellant. The recusal application suffered the
same fate as the
application for postponement. We were urged to disregard in totality
the learned trial judge’s credibility
findings and to evaluate
afresh the appellant’s evidence and its probity. Reliance was
placed on a number of judgments of
this court.
[1]
In response to the trite principle laid down in
Dhlumayo
and a long line of subsequent cases that an appellate court has very
limited powers to interfere with factual findings made by
a trial
court, particularly if it depended on credibility findings, we were
referred to the passages in
Dhlumayo
where this court pointed out that the record may reflect factual
misdirections by the trial court. This, so counsel for the appellant

contended, was such a case.
[13]
While the learned trial judge regrettably made numerous improper
remarks, sometimes entailing unnecessary personal comments
about the
appellant, we disagree with the contention that he was patently
biased. A careful reading of the record does not bear
out that
submission. The learned trial judge exhibited considerable judicial
patience during a long and difficult trial. The record
is replete
with numerous interlocutory skirmishes and constant interjections and
objections (often without merit) by the appellant’s
counsel who
appeared for him towards the latter part of the trial (earlier in the
trial the appellant had different legal counsel).This
necessitated
numerous rulings by the trial judge. Having said that, the rulings
were most certainly not one-sided throughout. For
the reasons that
will emerge presently, most of the rulings went against the
appellant, correctly so.
[14]
The record supports, in large part, the rulings and findings of the
learned trial judge. The problem with regard to the constant

disruptions by his counsel was exacerbated by the frequent
argumentative stance adopted by the appellant under
cross-examination.
As a seasoned lawyer he often took it upon himself
to question the relevance of questions and to argue with the
cross-examiner
about the basis for certain questions and about the
cogency or adequacy of his answers. Apart from being argumentative,
the appellant
was also evasive and obdurately tendentious at times.
The learned trial judge was also correct in finding that in certain
specific
instances the appellant was mendacious. As will presently
appear, these valid criticisms against the appellant regarding his
credibility
wrongly led the high court to a finding that the
appellant had dishonestly concealed the true extent of his estate. It
is one thing
to find that a litigant’s credibility is
questionable, but quite another altogether to ignore the objective
facts regarding
the true ownership of assets, which is the central
enquiry here. Certain of the conclusions reached by the high court
are in some
instances bereft of any reasoning, and in others not
borne out by the proved facts. The learned judge also misdirected
himself
on the facts and the law in reaching some of his conclusions.
[15]
The genesis of the appellant’s unsatisfactory showing as a
witness is to be found in the manner in which he conducted
the
litigation. The learned trial judge described the appellant’s
approach to the litigation as a ‘scorched earth policy’.

At the outset the appellant adopted an intractable stance on two
important legal issues. First, he took the stance that the issue
of
the validity of the waiver clause and maintenance should be heard
separately. An interlocutory application for a declaratory
order to
that effect was dismissed by Dolamo AJ before the trial commenced.
Notwithstanding this ruling, during the trial the appellant

frequently reverted to this stance.
[16]
Second, in a special plea the appellant contended in limine: (a) that
an order for the division of accrual under s 8 of the
MPA, can only
be made upon application (and not by way of an action for divorce)
and (b) that a claim under s 3 of the MPA for
half of an accrual can
only be brought after dissolution of the marriage and was thus not
justiciable in a divorce action. The
high court declined to deal with
the special plea, electing instead to deal with the matter
holistically. Under cross-examination
the appellant often reverted to
his view of the law.
[17]
Whether they were right or wrong, the rulings by Dolamo AJ and
Weinkove AJ remained extant until set aside. The appellant’s

obdurate persistence in his view of the law in the face of these
rulings, must be deprecated. It contributed greatly to the poor

quality of his testimony and it was the cause of much of the
incessant verbal sparring between counsel throughout the trial. For

present purposes it would suffice to point out that this court has
held in
Brookstein
v Brookstein
that it is not improper to sue for a decree of divorce and an order
in terms of s 3 of the MPA in the same action.
[2]
Through that decision this court has brought finality to divergent
views in some high courts on this particular aspect.
[18]
The appellant was correctly criticized by the high court for his
recalcitrance in making proper discovery and to furnish adequate

replies to requests for further particulars for trial. As far as the
accrual claim goes, full and proper disclosure, particularly
of his
financial affairs, was self-evidently required of the appellant. And
s 7 of the MPA unequivocally required of the appellant
‘to
furnish full particulars of the value of [his] estate’.
[19]
It is of considerable significance that the appellant attested to no
fewer than 16 discovery affidavits in this matter. Initially
the
appellant withheld documents which had a bearing on his assets which
were excluded from his estate for purposes of the accrual
(the
excluded assets). He also failed to discover documents relating to
his current assets and liabilities and the trusts and corporate

entities in which he held an interest. In particular, no financial
statements or any other financial records in respect of the
companies
and trusts in which it later became clear the appellant had an
interest, were disclosed. As was the case with his evidence,
the
appellant also imposed his view of what was relevant in the discovery
process. That much is evident from his first two discovery

affidavits. Discovery is not dictated by a litigant’s view of
what is relevant – it is a matter for the court, with
reference
to the pleadings.
[3]
[20]
Two glaring examples of his failure to make proper disclosure
concern, firstly, the appellant’s refusal to produce the

liquidation and distribution account (the L & D account) in his
late father’s estate and, secondly, his failure to discover

documents relating to his so-called Nedbank ‘No 2’
account (the No 2 account). These documents were highly relevant
in
respect of his alleged excluded assets. It was not in dispute that,
upon his father’s death in 1987, the appellant had
inherited a
substantial share portfolio. According to the appellant, he later
realised these shares and acquired his excluded assets
with the
proceeds. We shall deal with the precise details later. According to
the appellant, the No 2 account recorded all the
realisations on the
sales of assets which existed at the time of the marriage and the
purchase of new assets from the proceeds
of the sales. It is plain
that the L & D account and the No 2 account were of vital
importance in an investigation into his
excluded assets.
[21]
The L & D account was only produced late in the trial, after the
respondent had closed her case. The bulk of the statements
in respect
of the No 2 account were only produced in February 2015, some months
after the commencement of the trial. The respondent
is correct in her
contention that the appellant kept meticulous records. This was
particularly evident in his comprehensive archiving
of financial
documents from the No 2 account and other accounts which had a
bearing on his counterclaims. There is a huge gap in
statements from
the No 2 account for the critical period 1992 until 1998. This was
the period during which, on the appellant’s
version, there were
substantial sales of excluded assets. Self-evidently, the missing
statements for that period were of considerable
importance.
[22]
Equally unsatisfactory were the appellant’s replies to requests
for further particulars for trial. In the first request
the appellant
was asked to make full disclosure of all the assets inside and
outside South Africa beneficially owned by him and
their market
values as well as his liabilities. In his reply on 13 December 2013,
the appellant stated that the particulars requested
were not strictly
necessary for trial preparation, alternatively constituted an
interrogatory, or did not arise from the contents
of the pleadings,
or related to a maintenance claim which had been waived, or related
to an accrual claim which could only be adjudicated
after a divorce
order had been granted. But, significantly, the appellant added that
‘furthermore, [the appellant] has discovered
his financial
statements as at 29 February 2012, a copy of which will be provided
on request and which reflects both his assets
and his liabilities.
There is no material change therein to date
’
(emphasis added).
[23]
As will appear later, the reply was untrue. The 2012 financial
statements did not reflect the appellant’s shareholding
in
certain corporate entities at that time. These shareholdings were
only disclosed in the appellant’s reply to the second
request
for particulars for trial, on 17 January 2014. There is considerable
merit in the respondent’s contention that, by
the time this
disclosure was made, the appellant was well aware that the auditors
of these entities had been subpoenaed by the
respondent and that the
information would emerge anyway. Again, as far as the disclosure of
his financial affairs in his further
particulars for trial are
concerned, the appellant had not been forthcoming.
[24]
In these two important instances, therefore, the appellant failed to
disclose fully important financial information which bore
directly on
his excluded assets, on new assets realized from the proceeds of the
realisation of his excluded assets and thus, overall,
on the true
value of his estate.
[25]
The appellant’s evidence was unsatisfactory in a number of
respects. We have already alluded to the fact that he lacked
candour,
was argumentative and mendacious and evaded questions on the basis
that they were irrelevant to the pleaded issues. He
was also
tendentious at times, particularly on aspects where Dolamo AJ had
already ruled against him on his earlier application
for a declarator
and where the high court had already declined to decide his special
plea regarding the accrual claim separately,
as outlined above.
Reference has already been made to the appellant’s lack of
candour in various respects as far as his financial
affairs are
concerned.
[26]
The record bears out the high court’s credibility findings
against the appellant. We did not detect any manifestations
of bias
against the appellant in these findings. Save for some unfortunate
and unnecessary personal remarks about the appellant,
the learned
trial judge cannot be faulted in his credibility findings. In
Makate
v Vodacom (Pty) Ltd
[4]
the Constitutional Court, in reaffirming the trite principles
outlined in
Dhlumayo,
quoted the following dictum of Lord Wright in
Powell
& Wife v Streatham Nursing Home:
‘
Not
to have seen the witnesses puts appellate judges in a permanent
position of disadvantage as against the trial judges, and unless
it
can be shown that he has failed to use or has palpably misused his
advantage, the higher court ought not to take the responsibility
of
reversing conclusions so arrived at, merely on the result of their
own comparisons and criticisms of the witnesses and of their
own view
of the probabilities of the case.’
[5]
[27]
While there is no basis on which to interfere with the high court’s
credibility findings, that in itself does not, without
more, warrant
a summary rejection of all of the appellant’s evidence. In
particular, as we shall presently demonstrate, absent
any acceptable
controverting evidence grounded in facts, not conjecture, the
appellant’s explanations regarding his financial
strategy and
its implementation must be accepted where it accords with the
objective, established facts as far as the true ownership
of assets
are concerned.
[28]
The high court accepted the respondent’s evidence and made no
adverse findings against her credibility. When regard is
had to the
fact that she had very little knowledge of the appellant’s
financial affairs and the true extent of his estate,
the respondent’s
evidence bears little relevance in the adjudication of this
particular issue – the accrual claim.
It was contended on
behalf of the appellant that the respondent’s evidence ‘was
characterised by opportunistic exaggeration
coupled with
opportunistic understatement, calculated evasion and deflection’.
She was also accused of having been vague
and having feigned
ignorance. We need say no more, given the limited relevance of her
evidence, than that the record does not support
the attack on her
credibility. She was clearly unable to respond meaningfully to the
extensive questioning regarding the appellant’s
assets, due to
her lack of knowledge of his finances. But, importantly, the
respondent was unable to adduce any evidence controverting
the
appellant’s version on this aspect.
Accrual
General
introduction
[29]
In the contract both parties declared the net value of their
respective estates at the commencement of the intended marriage
to be
nil. It is clear that at the time of the divorce the respondent’s
estate was insolvent, taking into account her legal
costs. In his
plea the appellant denied that his estate had shown a greater accrual
than that of the respondent’s. His case
was that his current
estate was fully attributable to the proceeds realised from his
excluded assets. In order to calculate the
accrual, the value of the
appellant’s net estate must be determined. That value would
exclude the assets stipulated as excluded
assets in the contract and
the current assets acquired from the proceeds of excluded assets.
Since the respondent’s net estate
has shown no accrual at all,
the final computation would only take into account the accrual in the
appellant’s estate, if
any. The value of the accrual must be
determined at the dissolution of the marriage – ie the date of
divorce.
[6]
[30]
The contract contains important provisions relating to the
calculation of the accrual. Clause 3 in relevant part reads as
follows:
‘
3.
The provisions of s 5(2) of the [MPA] are hereby excluded from the
intended marriage, it being agreed that, in the determination
of the
accrual of the estate of a spouse, a donation between spouses,
including a donation mortis causa, shall be taken into account
as
part of the estate of the donee . . .
‘
[7]
Capital
or income received by or accrued to an intended spouse from a third
party as an inheritance, legacy or donation were excluded
in terms of
clause 4.
[8]
[31] Both sides conducted
the trial and the appeal on the basis that clause 3 of the contract
was valid. Since the contrary was
not argued, we shall make the same
assumption. We simply observe that s 5(1) of the MPA excludes
from a spouse’s accrual
an inheritance, legacy or donation
except in so far as the antenuptial contract provides otherwise,
whereas s 5(2) excludes
from a spouse’s accrual a donation
from the other spouse without adding ‘except in so far as the
antenuptial contract
provides otherwise’. This may suggest that
s 5(2) cannot be excluded by agreement.
[32]
In terms of clause 5, assets directly or indirectly owned by an
intended spouse at the date of the marriage were excluded.
So too
were assets acquired from the income derived from such assets and the
proceeds from the realisation of such assets.
[9]
The last part of clause 5 is of considerable significance. It reads:
‘
If
any funds which would otherwise be included in calculating the
accrual of the estate of either spouse be applied by either spouse
in
the enhancement of any asset which is so excluded, or the payment of
any debt which is related to an excluded asset, such funds
shall
notwithstanding such application be included in the calculation of
the accrual of the estate of either spouse.
’
The
effect thereof is that, for example, any income received by a spouse
during the course of the marriage which is used to enhance
an
excluded asset or to pay a debt relating to such asset, should be
included in the calculation of the accrual of the estate of
that
spouse. Exactly how it should be included will be discussed later.
Duty
of disclosure
[33]
Section 7 of the MPA sets out the duty which a spouse has to make
full disclosure of relevant information when requested to
do so by
the other spouse. It reads as follows:
‘
7
Obligation to furnish particulars of value of estate – When it
is necessary to determine the accrual of the estate of a
spouse or
deceased spouse, that spouse or the executor of the estate of the
deceased spouse, as the case may be, shall within a
reasonable time
at the request of the other spouse or the executor of the estate of
the other spouse, as the case may be, furnish
full particulars of the
value of that estate.
’
[34]
In
MB v DB
Lopes J cautioned as follows:
‘
.
. . litigation is not a game where parties are able to play their
cards close to their chest in order to obtain a technical advantage

to the prejudice of the other party. This is even more so in
matrimonial matters where the lives of the parties have been
inextricably
bound together. . .
’
[10]
[35
The duty to make full and frank disclosure in these types of cases
has also occupied the attention of the English courts. The
applicable
legislation contains similar requirements of financial disclosure as
ours.
[11]
In
Livesey
(formerly Jenkins) v Jenkins
[12]
,
Lord Brandon declared, with reference to this duty, that ‘. . .
unless the parties make full disclosure of all material facts,
the
court cannot lawfully or, properly exercise [its] discretion’.
[13]
That case concerned ancillary orders for financial provision and
property adjustment after divorce and the duty to make full
disclosure.
And, in a more recent case on the same subject, Lord
Sumption stated that ‘[t]he proper exercise of these powers
calls for
a considerable measure of candour by the parties in
disclosing their financial affairs. . .’
[14]
In that case the husband’s conduct was said to have been
characterised by ‘persistent obstruction, obfuscation and

deceit and a contumelious refusal to comply with rules of court and
specific orders’. Mostyn J was right when, with reference
to
the duty of disclosure, he said that ‘[n]on-disclosure is a
bane which strikes at the very integrity of the adjudicative

process’.
[15]
[36]
This court has cautioned that s 7 of the MPA places a clear duty on a
spouse to furnish full particulars when called upon to
do so. The
following dictum of Gorven AJA is apposite:
’
39.
The attitude of many divorce parties, particularly in relation to
money claims where they control the money, can be characterised
as
“catch me if you can”. These parties set themselves up as
immovable objects in the hope that they will wear down
the other
party. They use every means to do so. They fail to discover properly,
fail to provide any particulars of assets within
their peculiar
knowledge and generally delay and obfuscate in the hope that they
will not be “caught” and have to disgorge
what is in law
due to the other party.
‘
40.
The conduct of the trial on the accrual claim appears to have been
run by the appellant on a “catch me if you can”
basis. He
clearly failed to comply with the provisions of s 7 of the Act. He
delayed providing what were obviously relevant documents
until the
last minute and then did not discover them. He declined to
provide any documents concerning the financial position
of Full House
Taverns. He did not provide documents which could be used to trace
assets derived from the excluded assets.
’
[16]
A
failure by a party to make full disclosure, as required by s 7 of the
MPA, may warrant the drawing of an adverse inference where
it is
reasonable in all the circumstances to do so, that a party has hidden
assets.
[17]
Onus
[37]
The high court held that ‘there was an onus on [the appellant]
to show that certain assets were excluded, to identify
those assets
and to trace those assets to show that they were still there and
should remain excluded’. The high court found
that, on the
evidence, the appellant had failed to discharge this onus with regard
to excluded assets.
[38]
There are, to our knowledge, only two other decisions where similar
findings in respect of this aspect have been made. The
high court
cited with approval the judgment in
AM
v JM
[18]
in that Division. There is also the decision in
MB
v DB
[19]
where Lopes J, after citing the judgment of Cloete AJ in
AM
v JM
,
held that:
‘
It
seems to me that in circumstances where the appellant is in
possession of all the facts relating to the assets reflected as being

excluded in the antenuptial contract, he should bear the onus of
demonstrating how they have become converted from time to time,
and
what their present values are which fall to be excluded from the
calculation of his net worth as at the date of the divorce.
Although
the respondent bears the onus of establishing the monetary value of
the share of the accrual in the appellant’s
estate to which she
is entitled, the appellant is required to show which assets are to be
excluded from that calculation, and why.
’
[39]
This court left the question of the onus open in
B
v B,
stating
that it was neither necessary, nor desirable, to decide the issue of
the onus.
[20]
Such a
determination appears to be unavoidable in this case. For the reasons
that follow, we agree with the high court that the
burden of proof
was on the appellant with regard to the question whether an asset he
owned was an excluded asset. It is trite that
a party who claims must
prove. In this case the respondent had to prove the appellant’s
assets and their value. The respondent,
in turn, had to prove that
some or all of these assets were excluded. This accords with the
analogous case of an insurer who seeks
to escape liability on the
basis of an exception clause – while an insured must prove an
occurrence falling within the primary
risk insured against, it is for
the insurer to prove that an exception applies.
[21]
[40]
Furthermore, our law generally does not require a party to prove a
negative. Thus, in this instance, the respondent would ordinarily
not
be required, once she had discharged the onus of proving the
appellant’s assets and their value, to prove that any one
or
more of the assets are not excluded for purposes of accrual. There is
the further consideration that a defendant whose defence
amounts to a
confession and avoidance accepts an onus in that respect.
[22]
The facts regarding his general financial situation and, in
particular, his assets and whether they qualified to be excluded or

not, fell within the appellant’s personal knowledge. And he had
a statutory duty to make full disclosure. All these factors
impel us
to the inescapable conclusion that the burden of proof with regard to
exclusion fell upon the appellant.
The
appellant’s assets
[41]
Establishing what exactly the appellant beneficially owned at the
time of the divorce, and what his excluded assets and their
proceeds
are, is a vexed question. The high court adopted a robust approach in
this regard. It held that the respondent is insolvent
and rejected
the valuation of the appellant’s estate by his expert, Mr
Greenbaum (whose evidence we shall discuss presently).
Consequently,
the high court concluded, on the basis of the respondent’s
contentions, that the value of the appellant’s
estate for
purposes of computing the accrual was R22 259 702. The two
most contentious findings by the high court are:
(a)
that the ‘corporate veil must be lifted’ and that the
appellant is the true beneficial owner of certain assets held
in
companies and in trusts; and
(b)
that a Sanlam Glacier living annuity, said to be worth R3 270 368
at the time, must be included as an asset in the
appellant’s
estate for purposes of calculating the accrual.
[42]
Care must be taken not to engage in conjecture when assessing the
appellant’s estate. The drawing of inferences must
accord with
the well established approach laid down by our courts. In civil
cases, a respondent who places reliance on circumstantial
evidence
need not prove that the inference which he or she asks the court to
draw is the only reasonable inference – it would
suffice if he
or she can persuade the court that that inference is the most
plausible one amongst a number of possible inferences.
[23]
It was expressed as follows in
Cooper
:
‘
[T]he
court, in drawing inferences from the proved facts, acts on a
preponderance of probability. The inference of an intention
to prefer
is one which is, on a balance of probabilities, the most probable,
although not necessarily the only inference to be
drawn. In a
criminal case, one of the ‘two cardinal rules of logic’
referred to by Watermeyer JA in
R
v Blom
is that the proved facts should be such that they exclude every
reasonable inference from them save the one to be drawn. If they
do
not exclude other reasonable inferences then there must be a doubt
whether the inference sought to be drawn is correct. This
rule is not
applicable in a civil case. If the facts permit of more than one
inference, the Court must select the most ‘plausible’
or
probable inference. If this favours the litigant on whom the
onus
rests he is entitled to judgment. If, on the other hand, an inference
in favour of both parties is equally possible, the litigant
will not
have discharged the
onus
of proof
.‘
[24]
[43] As stated, the
appellant’s failure to fully disclose his financial affairs in
the face of a statutory duty to do so,
may warrant the drawing of an
adverse inference. And he bore the onus regarding his excluded assets
and their proceeds. Ultimately,
the proper approach in our view is to
consider the appellant’s version regarding the ownership of
assets and excluded assets
against the objective facts, bearing in
mind where the burden of proof lies – the respondent had to
prove the assets that
belonged to him, the appellant had to prove
that any assets shown to belong to him were excluded assets.
[44]
In an attempt to establish the appellant’s financial position
with a view to calculating the accrual, the respondent
led the
evidence of Ms Danielle Ladopoulos, a chartered accountant. Her brief
was to peruse all relevant documentation discovered
by the appellant
and procured under subpoena by the respondent. She was required to
review and analyse these documents to establish
the content and value
of the appellant’s estate and to determine how and when his
assets were acquired and funded. The incomplete
and incremental
discovery by the appellant resulted in Ms Ladopoulos not being able
to properly execute her task. Thus, in her
first report Ms Ladopoulos
indicated in her conclusion that she was unable to determine the net
asset values due to the outstanding
documentation and information.
She also listed which investigative procedures remained outstanding
at that time. In her second
report, she again alluded to the
continuing difficulty in respect of outstanding information. Based on
the available information,
she estimated that the appellant’s
‘direct and indirect assets may be valued in excess of R36.7
million’.
[45]
The high court placed no reliance on Ms Ladopoulos’ conclusions
and estimates. That is understandable, given its speculative
nature
caused by the paucity of information. Instead, the high court
considered the evidence and computations of the appellant’s

expert, Mr Hilton Greenbaum, a chartered accountant. In this court
the parties made extensive submissions on Mr Greenbaum’s

evidence and his conclusions. Mr Greenbaum calculated the appellant’s
net estate, before the deduction of excluded assets,
to be between
R11 million and R12 million. According to him, the total realised
from excluded assets, together with retained assets,
amounted to
R13.92 million. The value of the estate for accrual purposes was
R2 076 338 and, once the appellant’s
outstanding
legal fees due to his attorneys were deducted, Mr Greenbaum concluded
that the appellant’s accrual was nil. Ms
Ladopoulos and Mr
Greenbaum were not expert witnesses in the true sense. The
respondent’s counsel described them as ‘compendium

witnesses’, which we think is apt. They simply drew conclusions
and did calculations from the information available to them.
[46]
The high court subjected Mr Greenbaum’s evidence to
wide-ranging criticism. It found that, in computing the appellant’s

net estate to determine the accrual, the witness had left out
material sources of income from the appellant’s practice as
a
senior advocate which, as stated, extended beyond our borders to
Namibia, Lesotho and Botswana. Mr Greenbaum was also criticized
for
basing his calculations on the assumptions that the proceeds from the
excluded assets realised during 1996 to 1998 were not
moved offshore
or used for purposes other than the acquisition of loan accounts.
These assumptions, said the high court, were unsubstantiated
by the
evidence. Lastly, the high court held that Mr Greenbaum’s
valuation of the appellant’s estate excluded certain
assets and
undervalued others, which meant that these values had to be adjusted.
[47]
With regard to the appellant’s evidence concerning his assets
and the value of his estate for accrual purposes, the high
court had
no hesitation in rejecting that evidence. The reasons for the
rejection were the appellant’s lack of candour, his
inadequate
disclosure and constant evasiveness under cross-examination.
According to the high court, the appellant had failed to
discharge
the onus with regard to excluded assets and their proceeds and had
failed to establish that he had made full disclosure.
And, as stated,
the high court held that in order to ascertain the true value of the
appellant’s beneficial ownership in
certain assets, the
corporate veneer of certain trusts and companies had to be removed.
[48]
The task of determining the true extent of the appellant’s
estate is fraught with difficulty. There is a web of South
African
and offshore entities which may or may not be beneficially owned,
either wholly or in part, by the appellant. To exacerbate
matters,
some entities underwent repeated name changes and they have different
financial year ends. It was contended on behalf
of the respondent
that this elaborate scheme was ‘a device adopted by the
[appellant] to conceal assets and the transfer
of funds’. The
appellant, on the other hand, confirmed what Mr Greenbaum had
submitted, namely that this was merely sophisticated
estate planning.
[49]
As will be demonstrated presently, on the objective, uncontroverted
facts, the appellant’s version cannot, on the probabilities,
be
rejected altogether, as the high court did. What is clear to us, as
was submitted by the respondent’s counsel, that the
stark
reality is that we will never be able to establish the exact value of
the appellant’s estate as at the time of the
divorce. We are,
nonetheless, duty bound to do the best we can, under the
circumstances, to determine that value. As Mostyn J said
in
NG v
SG
:
‘
If
the court concludes that funds have been hidden then it should
attempt a realistic and reasonable quantification of those funds,

even in the broadest terms. . . . The court must be astute to ensure
that a non-discloser should not be able to procure a result
from his
non-disclosure better than that which would be ordered if the truth
were told. If the result is an order that is unfair
to the
non-discloser it is better that the court should be drawn into making
an order that is unfair to the claimant.’
[25]
The
corporate entities
[50]
The record shows that the appellant holds direct and indirect
interests in a number of entities, both inside and outside South

Africa. It was contended by the respondent that, on the available
information, the appellant is the only discernible controlling
mind
of these entities. As stated, the high court found that these
entities were in fact a ‘sham’ and a ‘subterfuge’.

It ‘pierced the corporate veil’ and found that the
appellant held full beneficial ownership in them. These findings
are
key to a determination of the extent of the appellant’s estate.
The major assets are all ostensibly owned by companies.
In our view
the correct enquiry is whether the appellant can, on all the facts
and circumstances, be said to be the true beneficial
owner of the
assets. The trial judge conflated the concepts of ‘a sham’
and ‘subterfuge’ on the one hand
and ‘piercing the
corporate veil’ on the other. That is not the true enquiry
which is required here. Moreover, the
respondent never pleaded that
any of the companies are a ‘book entry’ or a ‘sham’,
as the high court found.
[51]
The appellant had extensive property and farming assets in Namibia,
which he acquired from the proceeds of his inheritance
prior to the
marriage in 1992. The appellant realised certain of these assets into
cash, mostly between 1992 and 1996, in order
to fund advances on loan
accounts to companies which were related party- entities. According
to Mr Greenbaum, assets owned by the
appellant and entities
controlled by him at the time of the marriage realised approximately
R8.8 million from the sales of shares,
properties and farms during
1992 to 1996, and a further R2.52 million thereafter. These assets
included Richemont, Naspers and
Anglo American shares, two farms in
Mpumalanga, houses in Windhoek, Namibia, and a farm in Namibia. The
primary sources of the
realisations after 1996 were a share-block
apartment in Brenton-on-Sea and the appellant’s shares in
Namibian Factors, which
were also excluded assets. The total
realisation of assets over the entire period amounted to R11 375 560.
[52]
The primary asset and a major bone of contention is the Mont du Toit
farm in Wellington in the Western Cape. This wine farm
was acquired
by Blouvlei Landgoed (Pty) Ltd (Blouvlei) in 1996. Blouvlei has
undergone two name changes. In 1998 an adjoining farm,
Hawequas, was
acquired by Blouvlei. The two farms were farmed as one unit and we
refer to them together henceforth as ‘the
Wellington farm’.
The appellant is the sole director of Blouvlei. A Namibian company,
Gamsberg Investments (Pty) Ltd (Gamsberg),
acquired by the appellant
in 1989, before the marriage, holds 300 400 shares in Blouvlei.
Gamsberg holds 100 400 of those
shares in trust for the
appellant. Tartan Investments (Pty) Ltd (Tartan) holds the remaining
99 600 shares. The appellant
testified that he had applied a
large part of the cash realised from the sale of his excluded assets
as payment for and the development
of the Wellington farm. He
consequently maintained that the Wellington farm is an excluded asset
and that he only holds 25% of
Blouvlei through Gamsberg.
[53]
The appellant is the sole director of Gamsberg and he holds 150
preference shares in it. Tartan holds 100 ordinary shares in

Gamsberg. The Tartan shares have made a significant journey over the
years. On 1 April 1989 the shares were issued to the appellant
and on
26 June 1992 they were transferred to Windhoek Nominees (Pty) Ltd,
which held them in trust for the appellant. On 7 February
1994 the
shares were transferred to
Zwarwin
(Pty) Ltd, which held them in trust for the appellant
and, thereafter, on 20 May 2000, the shares were transferred to Mr
Klaus Nieft,
who also held them in trust for the appellant. On 15
September 2000 the appellant, in his capacity as Gamsberg’s
sole director,
approved the transfer of the shares to Tartan and the
transfer was recorded on a share certificate on the same day.
Simultaneously,
150 preference shares were issued to the appellant
and registered in his name.
[54]
Tartan is itself somewhat of an enigma. It is a company incorporated
in the British Virgin Islands. The shares in Tartan are
currently
held by a blind trust in Monaco, of which the beneficiaries are the
appellant’s children from his two marriages.
The shares had
previously been held by a Guernsey trust, established before the
marriage, and were transferred to the Monaco trust
in 2005. The
beneficiaries of the Guernsey trust, like the Monaco trust, were the
appellant’s children. The appellant denied
that he personally
was a beneficiary of either of the offshore trusts. The respondent
has pointed out that the appellant had initially
refused to reply to
the request for further particulars in respect of Tartan. Thereafter,
in his second reply, the appellant said
he had no knowledge of
details such as the company’s registered address, its
shareholders, auditors, bank accounts, assets
and liabilities and so
forth. The respondent has also emphasized the lack of disclosure or
discovery of any financial statements
and documents in respect of
Tartan.
[55]
In 1999 a cellar was built on the Wellington farm where wine was
produced. A company, Mont du Toit Kelder (Pty) Ltd (Mont du
Toit), is
the entity through which the production and marketing of wine was
done. Mont du Toit has a 1996 registration number and
has also
undergone several name changes. The appellant is the sole director of
Mont du Toit and its shareholders are Gamsberg (651
shares or 65.1
per cent, of which 151 shares are held in trust for the appellant),
Tartan (249 shares or 24.9 per cent) and the
appellant (100 shares or
10 per cent).
[56]
Clos du Toit (Pty) Ltd, (Clos du Toit) previously known as Investment
Facility Company Eight Three
Three
(Pty) Ltd and then as Mont du Toit Kelder (Pty) Ltd, is
a 1998 registered entity whose principal business is the holding of
trade
marks for the Mont du Toit wines. The appellant is its sole
director and the sole registered shareholder is Gamsberg, which holds

100 shares, 26 of which are held in trust for the appellant.
[57]
Caledon Street Guest House (Pty) Ltd is a company of which the
appellant is the sole director. Its principal business was the

operating of a guesthouse in George, but it is presently dormant. In
his personal annual financial statements disclosed to the
tax
authorities, the appellant indicated that he is the sole shareholder
of the company, but the share register reflects that Gamsberg
is the
sole shareholder. Schoongezicht Investments (Pty) Ltd is a Namibian
holding and investment company, whose sole shareholder
is the
appellant’s family trust (a South African trust). Its sole
director is Mr Klaus Nieft. As stated, the appellant was
previously a
beneficiary in the trust, but he was later removed. The rest of the
beneficiaries are the appellant’s two children
from his
marriage with the respondent.
[58]
Lastly, as far as the fixed assets are concerned, there is the wine
farm, Mas d’ Andrum, near Nimes in the south of France.
Its
ownership was the subject of a fierce dispute between the parties.
The farm, which was purchased in 2004, is registered in
the name of a
French company, SCEA Mas d’ Andrum, whose shares are held by a
company in Luxembourg, Lutsinia SA. The sole
director of SCEA Mas d’
Andrum is Mr Berndt Philippe, one of the appellant’s wine
consultants from Germany. The shares
in Lutsinia SA are held by the
Monaco trust.
[59]
The farm produces the Mas d’ Andrum and
Andrumette
wines and, according to the respondent, the Mas d’
Andrum wine label has her family crest on it. The respondent alleged
that
the appellant had asked her to use her family as a front in
respect of ownership, since he did not want it to be known in South

Africa that he owned a wine farm in France. She alleged further that
the appellant had found the farm while on a family holiday
in France.
According to her, the appellant was actively involved in the
marketing and sales of the wines and in determining the
prices for
the wines. The appellant had flown in his German winemaking
consultants to have a look at the farm before he bought
it, said the
respondent. The respondent also alleged that the appellant had made
available €500 000 towards the purchase
price of Mas d’
Andrum, something which the appellant denied categorically. The
appellant’s evidence was that he had
asked Mr Durham, at that
time his contact in respect of the Guernsey trust, whether the trust
would make the investment, which
the trust agreed to do. He did not
deny being involved in the farm’s operations. He did deny−
(a)
that he had signed the purchase agreement for the farm;
(b)
that he had financed the purchase price;
(c)
that he is the beneficial owner or that he has any rights in respect
of the farm; and
(d)
that he had ever paid any expenses or monies in respect of the farm
during the marriage.
[60]
We have set out in some detail the ownership structure of the various
assets to demonstrate its complexity. We were urged on
behalf of the
respondent to endorse the findings of the high court, which held that
all the evidence compels it to conclude that
the appellant, and not
the corporate entities, is the true beneficial owner of the
Wellington farm. The high court made no such
finding in respect of
the French farm, correctly so. There is simply not enough information
available with regard to Mas d’
Andrum. Counsel for the
respondent did not seek to persuade us otherwise. After careful
consideration, we have come to the conclusion
that the high court’s
finding on the ownership of the Wellington farm is incorrect.
Beneficial
ownership of Blouvlei, Mont du Toit and Clos du Toit
[61]
As stated, the respondent bore the onus to prove the appellant’s
beneficial ownership of the assets she averred ought
to be included
in his estate to determine its accrual and the appellant bore the
onus to prove that any such assets were excluded
assets.
[62]
Although the respondent at times flirted with the contention that the
beneficial owner of the farm was not Blouvlei but the
appellant, the
respondent’s counsel on appeal did not advance that case. Their
argument was that the appellant was the beneficial
owner of all the
shares in Blouvlei. The trial judge’s findings on this part of
the case are unclear, though he seems to
have concluded that the
companies were a facade, that the corporate veil needed to be lifted,
and that the appellant was the true
owner of the Wellington farm. In
the judgment it is stated that ‘[t]he offshore company which he
claimed owns part of the
land and part of the farm constituted a book
entry and a sham’. It is difficult to know how a company can
‘constitute
a book entry’. The offshore company
which the trial judge had in mind was presumably Tartan. The
appellant never claimed
that Tartan owned any part of the Wellington
farm; he claimed that Tartan owned some of the shares in Blouvlei.
[63]
A finding that the appellant is the true owner of the Wellington farm
is not compatible with a finding that he is the true
owner of all the
shares in Blouvlei. If he is the true owner of the Wellington farm,
the true ownership of the shares in Blouvlei
is irrelevant, because
Blouvlei then in truth owned nothing. Conversely, if the appellant
was the beneficial owner of all the shares
in Blouvlei, there would
be every reason for Blouvlei to be the true owner of the Wellington
farm. The trial judge’s conclusion
about the true ownership of
the Wellington farms is really little more than a conclusion. There
is no process of reasoning to support
it. The high court did not deal
with the evidence with a view to determining how it bore on the
inherent probabilities. In the
absence of proper engagement with the
evidence, the high court’s factual conclusion carries no
weight.
[64]
The appellant’s case was that he is the beneficial owner of 26
per cent of the shares in Blouvlei and Clos du Toit and
of 25.1 per
cent of the shares in Mont du Toit (though, since there is currently
no residual value in the shares of the latter
two companies, the
position in relation to these companies does not directly affect the
calculation of the accrual). In our view,
the respondent did not
discharge the onus of proving that the appellant was the beneficial
owner of 100 per cent of the shares
in these companies. It is thus
unnecessary to consider whether the respondent was in any event not
precluded from advancing this
case on the ground that it was not
pleaded and on the further ground that Tartan and Gamsberg (whose
ownership the respondent sought
to impugn) were not joined.
[65]
A full burden of proof rested on the respondent to establish the
appellant’s 100 per cent beneficial ownership. Well
before the
parties’ marriage there was in place an offshore trust in
Guernsey for the benefit of the appellant’s four
children from
his first marriage. After the marriage the trust deed was amended to
add the children from the second marriage. The
appellant’s
contact person in relation to the Guernsey trust was Mr Len Durham,
formerly a South African attorney. The appellant
testified that he
was not a beneficiary of the Guernsey trust. When Mr Durham retired
in 2005, the assets of the Guernsey trust
were transferred to a
Monaco trust, the appellant’s new contact being a Mr Bingham,
an ex-auditor. The appellant described
this as a ‘blind trust’
of which his six children are beneficiaries. In its conventional
meaning, a ‘blind trust’
is one in which the
beneficiaries have no knowledge of the assets owned by the trust and
no say in their administration.
[66]
The trial judge regarded the formation of the offshore trust as
‘sinister’. If he said this with reference to a
supposed
strategy by the appellant of concealing his assets from the
respondent, the criticism overlooks the fact that the offshore
trust
was established before the parties met. The trial judge said that he
did not believe the appellant’s evidence that
the offshore
trust existed for the benefit of his children and not for his own
benefit. The trial judge gave no satisfactory reasons
for this
conclusion. He claimed that the trust deed for the offshore trust
reflected the appellant as one of the beneficiaries,
but the passage
from the record which he cited was dealing with the domestic family
trust, not the offshore trust.
[67]
The appellant’s financial statements do not show that he ever
received a distribution from any trusts. Mr Greenbaum testified
that
it was not unusual for South African clients not to know the identity
of the trustees of offshore trusts. Even if the appellant
were a
beneficiary of the offshore trust, and even if he did receive income
from it, this would be irrelevant at least for purposes
of accrual,
since clause 4 of the antenuptial contract excludes from the ambit of
accrual any benefit, whether by way of income
or capital, received by
either of the spouses in terms of any trust howsoever created or to
be created.
[68]
We have already alluded to the appellant’s domestic family
trust. It was established in July 1995 with the appellant
as first
trustee. The family trust held, among other assets, all the shares in
the company Schoongezicht. This company must have
existed before the
marriage because it owned various pre-marital assets such as the
Mpumalanga farms, the shares in Namibian Factors
and a 5 per cent
shareholding in Pitje Chambers. If the appellant previously was the
owner of the shares in Schoongezicht, he must
have transferred them
to the family trust on loan account, the loan account being repaid
when Namibian Factors and the Mpumalanga
farms were sold.
[69]
If Schoongezicht’s new shareholder had been an entity with no
apparent connection to the appellant, one might have reason
to query
why he allowed control of Schoongezicht to pass from himself to such
entity and to investigate whether that entity did
not in truth
continue to hold Schoongezicht for the appellant’s benefit.
However, there is no reason for the appellant to
have been unwilling
to benefit a family trust for the advantage of his children. It is
not unusual for wealthy parents to do this.
Although the family
trust’s ownership of Schoongezicht was not challenged, we
mention this because it is germane to one’s
assessment of the
other corporate structures.
[70]
Prior to the appellant’s marriage to the respondent, there
existed the company Gamsberg, which owned Groot Gamsberg on
which the
appellant farmed in Namibia. Here one already had a model in terms of
which the land was owned by a company while the
appellant personally
conducted the farming operations. This was advantageous as the
appellant was allowed to deduct his Namibian
farming losses from his
Namibian professional income. As set out earlier, originally (ie from
around 1989) the appellant personally
held all the shares in
Gamsberg. In June 1992 the shares were registered in the name of a
professional nominee but the appellant
remained the beneficial owner
by way of a declaration of trust. The identity of the professional
nominee changed in February 1994
and May 2000 but by way of
declarations of trust the appellant continued to be the beneficial
owner of all the shares.
[71]
The respondent, of course, knew that the appellant farmed on Groot
Gamsberg. Any enquiry into the company Gamsberg would
have
revealed, until September 2000, that the shares were held by a
nominee for the benefit of the appellant. If the appellant
had wished
to conceal his beneficial ownership, he would not have used
professional nominees which issued declarations of trust.
[72]
Before discussing the change which occurred in the shareholding of
Gamsberg in September 2000, we must go back to the middle
of 1996
when Blouvlei bought the Wellington farm. The latter company was set
up on the basis that 76 per cent of the shares were
registered in the
name of Gamsberg and 24 per cent in the name of Tartan. As stated,
Tartan was an offshore company wholly owned
at that time by the
Guernsey trust (now by the Monaco trust). As in the case of the
family trust’s shareholding of Schoongezicht,
there is no
reason to be distrustful of the genuineness of Tartan’s
shareholding in Blouvlei, since any beneficial opportunity
which the
appellant made available to Tartan through Blouvlei would advantage
his children and reduce his estate duty. As at 1996
the appellant was
the beneficial owner of all the shares in Gamsberg, even though they
were held for his benefit by a nominee.
Until September 2000 the
position was thus that Tartan held 24 per cent and Gamsberg 76 per
cent of Blouvlei. Because he was the
beneficial owner of all the
shares in Gamsberg, the appellant indirectly had a 76 per cent stake
in Blouvlei.
[73]
When the shareholding in Gamsberg changed in September 2000 as
described previously, there was no aspect of the parties’

marriage which would, on the probabilities, have spurred the
appellant into taking devious action. Up to then, he indirectly held

76 per cent of Blouvlei. The ordinary shares in Gamsberg were
probably worth more than a nominal sum in September 2000, but since

the shares were being transferred to an entity wholly owned by a
trust which existed for the benefit of the appellant’s
children, there is nothing suspicious about the arrangement.
[74]
The beneficial ownership of Gamsberg by an entity which existed for
the benefit of the appellant’s children, coupled
with
preference shares issued to himself, has all the hallmarks of a
conventional estate planning transaction. For as long as he
survived,
his preference shares ensured that he retained voting control over
Gamsberg, and thus indirectly over Blouvlei, but the
value would
reside with Tartan and thus indirectly with the offshore trust. If
the appellant had been the beneficial owner of Gamsberg,
there would
have been no need for preference shares to be issued to him. The
experts in the present case agreed that the appellant’s

preference shares in Gamsberg should be valued at their nominal
value, namely R150.
[75]
In November 2000 Gamsberg executed a declaration of trust that, of
its 76 per cent shareholding in Blouvlei, 26 per cent was
held for
the benefit of the appellant. The appellant’s evidence was that
he wanted to ensure that he personally had a sufficient
shareholding
to block a special resolution. So, by November 2000 Tartan held 24
per cent of Blouvlei, Gamsberg beneficially owned
50 per cent while
the appellant beneficially owned 26 per cent.
[76]
The same applies to Mont du Toit which was set up in 1996 to conduct
the wine-making operations. There seems to have been some
delay in
establishing the intended shareholding. Originally 249 shares were
issued to Tartan and 100 shares to the appellant personally.
In
January 2000, 651 shares were issued to Gamsberg, bringing the total
number of issued shares to 1000. In November 2000 Gamsberg
executed a
deed of trust declaring that 151 of the shares which it held in Mont
du Toit were owned beneficially by the appellant.
The result was that
by November 2000 Tartan owned 24.9 per cent of Mont du Toit, Gamsberg
beneficially owned 50 per cent, while
the appellant beneficially
owned 25.1 per cent (of which 10 per cent was registered in his name
and 15.1 per cent in Gamsberg’s
name). In the case of Clos du
Toit, which was set up to own the trade marks used in relation to
Mont du Toit’s wines, the
arrangement was somewhat simpler, as
set out earlier.
[77]
As stated, until September 2000 Gamsberg was beneficially owned in
its entirety for the appellant. There is thus no reason
to doubt that
until September 2000 Gamsberg was the beneficial owner of 76 per cent
of Blouvlei. It would have been unnecessary
for Gamsberg to hold the
said shares as a nominee for the appellant, because he was in any
event the beneficial owner all the shares
in Gamsberg. And we see no
reason to find that Gamsberg’s shareholdings in Blouvlei
underwent a change of character and ownership
in or after September
2000. It would be entirely consistent with the appellant’s
declared estate planning purposes that Gamsberg
should have continued
beneficially to own 76 per cent of Blouvlei. Indeed, the estate
planning advantages of the structure above
Gamsberg would have been
pointless and ineffective if, in truth, Gamsberg itself did not own
anything beneficially. The same analysis
applies to the shareholdings
in Mont du Toit and Clos du Toit.
[78]
Furthermore, we know that in November 2000 Gamsberg executed deeds of
trust to declare that a part but not all of the shares
held by it in
the three companies belonged to the appellant. If the intention was
for all the shares held by Gamsberg in these
companies to be held
beneficially for the appellant, why did the declarations of trust not
say so? If there was a Machiavellian
scheme to cheat the respondent,
one would have expected there to be no declarations of trust at all,
the true arrangements being
sealed with a nod and a wink between
conspirators. Alternatively, if there was no honour among thieves,
one would have expected
the appellant to safeguard himself with a
declaration that all the shares were held for his benefit. A
declaration as to only a
part of the shareholding makes no sense,
except on the supposition that the remaining shares were beneficially
held by Gamsberg.
[79]
The appellant explained in his evidence why the activities connected
with the Wellington farm were separated among various
companies.
Because the wines were to be marketed abroad, including in the United
States, he wanted the wine-making company, Mont
du Toit, to be
ring-fenced so that any claims for damages would not impinge on the
Wellington farm. The trade marks were housed
in Clos du Toit because
his first prize would have been for the wines to be marketed under
the name ‘Clos du Toit’.
The wine authorities, however,
would not allow him to use the word ‘Clos’. He accepted
this for the time being, having
in mind in due course to take up the
fight again. Blouvlei was the owner of the land while he, the
appellant, conducted the farming
operations. The personal conduct of
the farming operations was advantageous because he could set off his
farming losses against
his professional income. He is nevertheless a
bona fide farmer. He has farmed in Namibia and South Africa for
decades.
[80]
Something was made of the fact that three cottages on the Wellington
farm are rented out by Mont du Toit rather than Blouvlei,
the
suggestion being that this demonstrated a failure to respect the
separate corporate personalities of the companies. Even if
that were
so, it would not show that the appellant personally owned all the
shares in the companies. When this was put to the appellant,
he made
the point that, since the indirect shareholdings in Mont du Toit and
Blouvlei were practically identical, it did not matter
economically
to the ultimate shareholders whether the renting was done by Mont du
Toit or Blouvlei. The appellant also said that
Blouvlei had not
incurred the expenditure in improving the cottages.
[81]
In similar vein, the appellant was attacked regarding the
arrangements between himself and Blouvlei in connection with his
use
of the land for farming. He paid Blouvlei a nominal annual rent of
R25 000. The first criticism was that, in response
to a question
in the respondent’s request for trial particulars as to whether
there was any lease agreement concluded between
the appellant and
Blouvlei, the appellant replied ‘none’. He explained in
evidence that he had answered the question
with formal written lease
agreements in mind. The nominal rent paid Blouvlei was apparently an
arrangement implemented at the suggestion
of the auditors so that
Blouvlei could maintain its VAT status. No written agreement existed.
While the explanation for his reply
to the request is not altogether
satisfactory, we do not think one can put this down to dishonesty
rather than a slipshod and contemptuous
response to the respondent’s
probings.
[82]
Another criticism was that the appellant was only paying a derisory
rent for the farm, showing that he was in truth its beneficial
owner.
This overlooks two important matters. Firstly, Blouvlei has
benefitted enormously from the improvements to the farm made
by Mont
du Toit (in respect of the wine-making facilities) and by the
appellant (in respect of the planting of vineyards). If Mont
du Toit
and the appellant ceased their respective operations and Blouvlei
were to sell the farm, it would make a substantial capital
profit
from expenditure incurred by others. Second, the appellant has not,
in consequence of the ‘derisory rent’, been
enabled to
make substantial personal profit. To date the farming operations have
run at a loss. If and when the operations become
profitable, it may
be more important to establish market-related rentals (though in the
case of Mont du Toit, as we have said,
it does not really matter
because the ultimate shareholdings in Mont du Toit and Blouvlei are
practically the same).
[83]
At the conclusion of his testimony the appellant asked to be allowed
to say one more thing regarding the attack that his companies
and
business activities were a pretence:
‘
They
are not under any circumstances. They are substantive arrangements
that I have made and I want to underline that these arrangements
–
I’m 76 years old – these arrangements were made for the
benefit of my children, who I regard as the only important
thing in
my life.’
[84]
We thus do not think that the evidence justified the high court’s
finding that the appellant is the beneficial owner
of all the shares
in the three companies. The assessment of the accrual should proceed
on the basis that the appellant owns 26
per cent of Blouvlei, 25.1
per cent of Mont du Toit and 26 per cent of Clos du Toit.
[85]
We conclude this part of our judgment by returning to the question of
the appellant’s unsatisfactory discovery and replies
to
requests for trial particulars. It is possible, though somewhat
doubtful, that the appellant hoped that the respondent would
not find
out that he beneficially owned shares in Blouvlei, Mont du Toit and
Clos du Toit. Apart from what we have already said,
there is the fact
that the respondent obviously knew that the appellant was closely
concerned with the operations of these companies.
Given the acrimony
which was present by the time divorce proceedings began, the
appellant could not have believed that the respondent’s
team
would not fully investigate the shareholdings and find the documents
she eventually obtained through subpoenas.
[86]
But even if he was deliberately concealing these matters, the facts
eventually came out. They do not justify the further step
of finding
that he is not the beneficial owner of only 26 per cent of Blouvlei
but of 100 per cent. A more likely explanation for
the appellant’s
unsatisfactory discharge of his obligations in respect of discovery
and trial particulars is a combination
of arrogance, obduracy and a
personal conviction that the respondent was not entitled to
maintenance and that all his assets of
substance were excluded
assets. He saw the respondent as trying to draw him into another long
and ugly divorce in circumstances
where (as he saw things) she had no
legitimate claim to maintenance or accrual. He thus dealt with her
and her legal team in a
high-handed and cavalier fashion. This is
inexcusable but, as stated, does not warrant the summary rejection of
his version as
it bears on the question of the beneficial ownership
of assets.
Are
appellant’s interests in the companies excluded assets?
[87]
The next question is whether the appellant’s shareholdings in
Blouvlei (26 per cent), Mont du Toit (25.1 per cent) and
Clos du Toit
(26 per cent), and his loan accounts in these and other companies,
are excluded assets.
[88]
In regard to the shares, it is common cause that there is no equity
in Mont du Toit and Clos du Toit. The value of the shares
in Blouvlei
are a function of the value of the Wellington farm. Both sides
adduced expert evidence of such value. The trial court
preferred the
evidence of the respondent’s expert, providing reasons for its
conclusion. We have not been persuaded that
we should interfere with
this finding. We thus accept the trial court’s finding that the
Wellington farm is worth R15 689 185.
[89]
It is also common cause that it would be appropriate, in valuing the
shares in Blouvlei, to deduct the company’s indebtedness
on
loan account in the amount of R1.55 million and the capital gains tax
which would be incurred to sell the farm so as to unlock
the value in
the shares. The net value of the shares after making these deductions
is R10 924 786. The value of the appellant’s
26 per
cent shareholding in Blouvlei is thus R2 840 444. The
question is whether this asset is an excluded asset.
[90]
The loan accounts in South African companies, which the respondent
contends should be brought into account as part of the appellant’s

accrual, are: (a) R466 806 in Caledon Street Guest House;
(b) R858 952 in Mont du Toit; and (c) R1 550 000

in Blouvlei. These three amounts total R2 875 758. In
relation to Namibian companies, the respondent seeks to bring into

account a net amount of R1 245 028 in Gamsberg (after
deducting an amount which appellant owes Schoongezicht).
[91]
The treatment of the amount of R1.55 million as an amount owed on
loan account to the appellant was based on a table prepared
by Mr
Greenbaum in his second report. However, the company’s
financial statements record the loan account creditor as Gamsberg,

not the defendant. Mr Greenbaum was alerted to this during
cross-examination and he corrected himself, saying that it appeared

the appellant had advanced the funds to Gamsberg which in turn lent
the money to Blouvlei.
This
seems to be correct. Ms Ladopoulos did not show the appellant as
having a loan account in Blouvlei. The appellant testified
that he
was not a creditor of Blouvlei and that he had advanced money to it
through Gamsberg. This was not challenged. Mr Greenbaum’s

schedule correctly reflects the appellant’s claim on loan
account against Gamsberg in the amount of R1 514 032

(reduced to R1 245 028 after netting off an amount owed by
the appellant to Schoongezicht). It appears to follow that

Greenbaum’s inclusion of a loan claim by the appellant against
Blouvlei in the amount of R1.55 million is incorrect and constitutes

double-counting.
[92]
It was for the appellant to prove on a balance of probability that
the shares and loan accounts, all of which came into existence
after
the conclusion of the marriage, were excluded assets. Apart from his
direct evidence that the shares and loan accounts were
funded from
the realisation of excluded assets, he relied on Mr Greenbaum’s
analysis of such proceeds.
[93]
That the appellant would have used excluded proceeds to fund the
shares and loan accounts is not implausible. If his strategy
was to
minimise his non-excluded estate, it would have made sense for him to
use the proceeds of excluded assets to fund the acquisition
of other
assets and to use his professional income (which was his main
non-excluded resource) to pay for living expenses and operational

farming expenses. Although it might have been mean-spirited, it would
not have been unlawful for the appellant to have minimised
his
accrual estate in this way. Contemporaneous notes which he wrote
during July 1997 and June 1998 are consistent with such a
strategy.
[94]
On the other hand, the appellant did not produce documents which
provided a paper trail by which one could follow the realisation
of
particular excluded assets and the application of the proceeds in the
acquisition of the farm and the advancing of funds to
the companies.
The bank statements and paid cheques, particularly for his No 2
account, were missing for the crucial years. The
appellant claimed
that he had been unable to find them despite diligent search. As
against this, he was able in the main to produce
isolated bank
statements and cheques (or cheque stubs) to vouch for the property
expenditure forming the subject of his counterclaim,
despite the fact
that such expenditure fell within the period for which in general he
was unable to produce bank records.
[95]
The appellant’s supposed inability to produce these documents
is certainly a matter of surprise. He seems to have retained
other
documents which supported his counterclaims. The marriage was never
so stable and happy that he would have discounted the
possibility of
a future divorce. His contemporaneous notes of July 1997 and June
1998 show that he was anxious to record matters
relevant to accrual.
Why then would he not have been careful to retain the bank statements
for his No 2 account, particularly for
the critical period when on
his version the excluded assets were being realised to fund other
acquisitions?
[96]
His bank records are not the only relevant documents which the
appellant was unable to produce. He did not discover complete
sets of
his personal financial statements or the financial statements of the
companies over the relevant period. It is not possible
to know
exactly when, for example, the loan accounts came into existence and
what their balances were from time to time. There
is no information
whatsoever as to the appellant’s professional income in South
Africa for the tax years 1993 to 1996 or
regarding his professional
income in Botswana and Lesotho.
[97]
In regard to Mr Greenbaum’s analysis, which sought to link the
proceeds of realised assets to the acquisition of shares
and loan
accounts, he was in the nature of things dependent to a considerable
extent on the reliability and completeness of the
information he
received from the appellant. Furthermore, his assumption – that
substantially all the proceeds of the excluded
assets must have been
invested in the shares and loan accounts, and that the appellant’s
professional income would not have
sufficed – is to a
considerable extent undermined by evidence which was not available to
him when he prepared his reports.
[98]
More particularly, it was put to him that on the evidence, including
that of the appellant himself, substantial amounts from
the proceeds
of excluded assets were applied to known purposes other than the
acquisition of the shares and loan accounts. According
to the
respondent’s analysis, the amounts applied to such other
purposes totalled around
R8.1 million, made up as
follows:
(a)
the donation of R300 000 to the respondent in fulfilment of the
provisions in the contract;
(b)
R289 000 used by the appellant from the No 2 account to ‘square’
the overdraft on his business account (ie
reduce it to nil) at the
commencement of the marriage;
(c)
R136 877 from the No 2 account to finance renovations to
Saxonwold;
(d)
About R620 000 which the appellant ‘certainly paid (his)
creditors’, in South Africa and Namibia;
(e)
R720 000 from the sale of Schoonwater and/or Beerzijnbosch (the
two farms in Mpumalanga) which were used to pay off the
appellant’s
Lloyds liability;
(f)
R1.7 million (the entire value of Namibian Factors, a company in
Namibia previously owned by the appellant), which was effectively

donated to the family trust;
(g)
R1.5 million (being the proceeds of the sale of the Muy Bien
properties in Windhoek), which was effectively paid abroad;
(h)
R42 000 in STC (company tax) paid from the proceeds of the
Brenton-on-Sea apartment registered in the name of Emtilist
(Pty)
Ltd;
(i)
R172 000, which the appellant paid for his children’s
private school education in advance;
(j)
R82 544 with which the appellant reimbursed his business account
from the No 2 account, as per his note of July 1997;
(k)
R630 000 transferred from his No 2 account to his personal
account to reduce the overdraft on the latter account, as per
his
note of June 1998;
(l)
R1.92 million paid by the appellant to register trade marks acquired
by Clos du Toit.
[99]
It is not entirely clear from the evidence that all of these amounts
were paid from excluded proceeds. For example, the donation
of
R300 000 may have come from the appellant’s professional
income. In regard to the trade marks, the evidence did not
show that
R1.92 million was actually spent. The appellant testified that the
Clos du Toit loan account in this amount was based
on a Capital Gains
Tax valuation and that, while the costs of registering the trade
marks were not insubstantial, they were considerably
less than R1.92
million. It is also not clear that the expenditure on registering the
marks was not funded from excluded proceeds.
Furthermore, Mr
Greenbaum took into the expenditure on the trade marks and the
payment of the Lloyds liability from excluded proceeds.
Even so, the
excluded proceeds used for purposes other than the shares and loan
accounts exceed R4.55 million.
[100]
Having regard to the absence of a paper trail, question marks as to
the probity of the appellant’s discovery and the
trial court’s
adverse credibility findings, we cannot find that the appellant
discharged the onus of proving that the shares
and loan accounts were
in their entirety funded from excluded assets. We think it is likely
that some part of the proceeds of excluded
assets was so applied; it
does seem unlikely that the appellant’s professional income
would have been sufficient, particularly
if such income was also
being used to fund living expenses. However, once we find – as
we do – that the appellant failed
to prove that the shares and
loan accounts in their entirety were funded from excluded assets, he
provided no basis on which an
apportionment could be made. That would
be entirely a matter of speculation.
[101]
Accordingly, the shares and loan accounts, in the values we mentioned
earlier, should be included in the appellant’s
accrual. If
we had found that the shares and loan accounts were to any extent
excluded assets, it would have been necessary
to consider, in the
light of the concluding part of clause 5 of the contract, what
adjustments should be made by virtue of the
fact that the appellant
used his professional income to improve the Wellington farm by the
planting of vineyards in 2008 and 2013.
The need to undertake this
enquiry falls away in the light of our conclusion that the shares and
loan accounts are in any event
not excluded assets.
The
living annuity
[102]
As stated, the high court included a Sanlam Glacier living annuity as
part of the appellant’s assets for purposes of
calculating the
accrual. This annuity is payable in terms of an annuity contract
between the appellant and Sanlam (the Glacier
contract). At the time
of the high court’s judgment the Glacier contract was
supposedly worth R3 270 368. The high
court did not furnish
any reasons for this decision – it simply included the annuity
in its calculation.
[103]
The facts with regard to the Glacier contract are as follows. The
appellant had a number of retirement annuities which dated
back to
the 1960s. When he turned 60 (ie in March 1999), he elected to apply
his maturity value in the retirement annuities to
the purchase of a
living annuity in his own name from Sanlam to provide himself with a
monthly income which was intended to serve
as his pension.
[104]
The main question in
M
v M
[26]
was whether a living annuity forms part of the estate of the
annuitant spouse for the purpose of assessing accrual. Significantly,

the parties had reached agreement in that case that a living annuity
is not a pension interest as defined in the Divorce Act
[27]
.
Victor J rejected the contention that the living annuity fell within
the annuitant’s estate. The living annuity (coincidentally
also
a Sanlam Glacier product) was purchased during the course of the
marriage and was used by the annuitant as a monthly source
of income.
As was stated, the question whether a living annuity on divorce forms
part of the accrual is novel.
M
v M
is
to our knowledge the only decision thus far where the question has
been dealt with in a fully reasoned judgment.
[105]
Counsel for the respondent relied on a number of cases where it was
held that an accrued pension is an asset of the joint
estate of
parties married in community of property.
[28]
We are not called upon to decide the rights of spouses in connection
with pension interests acquired by one of the spouses during
the
course of a community marriage. None of the cited cases concerned a
living annuity or the question whether the underlying capital
value
was an asset belonging to a spouse for purposes of an accrual
calculation. They are therefore no authority for the contentions

advanced by the respondent. It was contended further on behalf of the
respondent that
M
v M
did
not refer to any of these cases and was wrongly decided.
[106]
In order to qualify as a ‘living annuity’ for income tax
purposes, an annuity contract must comply with certain
requirements.
These are currently contained in the definition of ‘living
annuity’ in s 1 of the Income Tax Act
58 of 1962 read with
Government Notice 290 of 11 March 2009
[29]
.
Although the Glacier contract is not part of the record, it is not in
dispute that the appellant’s Glacier contract meets
these
requirements. The value of the annuity is determined solely by
reference to the value of the assets specified in the Glacier

contract (the opening value would have been the amount applied to
purchase the annuity in March 1999 less initial costs). In other

words, the amount of the annuity is not guaranteed. The assets
themselves belong to Sanlam, fluctuate with market conditions and
are
reduced as the annuity is drawn down. The annual amount which the
appellant can draw as an annuity is not less than 2.5 per
cent and
not more than 17.5 per cent of the current capital value. On the
appellant’s death, Sanlam must pay any remaining
capital to the
appellant’s nominee as an annuity or lump sum. If there is no
such nomination, the capital must be paid as
a lump sum to the
appellant’s estate.
[107]
The Glacier contract does not result in the appellant being a member
of a ‘pension fund organisation’ as defined
in the
Pension Funds Act 24 of 1956
. His status as such terminated when his
interests in his previous retirement annuity funds were applied to
purchase the living
annuity. The provisions in the Divorce Act
dealing with a spouse’s ‘pension interest’ are thus
not applicable.
It appears to be generally accepted in the pension
fund industry that the provisions of
ss 37A
to
37D
of the
Pension Funds Act apply
to a living annuity purchased in the name of
a former member of a retirement annuity fund (see Kobus Hanekom
Manual on Retirement Funds and Other Employee
Benefits 2015
para 19.1.10 at 932). Both
forensic accountants who testified in the present case gave this as
their understanding. The appellant’s
counsel took this for
granted in their heads of argument, and the contrary was not
submitted in the respondent’s counsel’s
heads of argument
or in their supplementary note dealing with accrued pension claims.
[108]
Having regard to the nature of the Glacier contract, we are of the
view that its supposed capital value cannot be included
as part of
the appellant’s accrual. The capital belongs to Sanlam, not the
appellant. The appellant’s only contractual
right is to be paid
an annuity in an amount selected by him within the permissible range
specified by law. His right to receive
any particular annuity
instalment is subject to a condition of survivorship, ie that he
should be alive on the date on which the
next annuity instalment
becomes payable. If he does not survive to the next date, the fate of
the capital will be determined by
whether or not he has nominated a
beneficiary. The capital may or may not be paid to his estate,
depending on whether or not there
is such a nomination.
[109]
If the supposed capital value of the Glacier contract were included
in the appellant’s accrual, one would have the anomalous

outcome that he would be obliged to pay half its value to the
respondent in circumstances where he has no right to claim half the

capital from Sanlam. He would have to satisfy this part of an accrual
award from other assets. While in the present case the appellant
may
have other assets from which to make payment, the question is one of
principle. If the Glacier contract is to be included in
the
appellant’s accrual, it would have to be included in the
accrual of any spouse with a comparable annuity contract, even
though
the contract were such spouse’s only ‘asset’. The
outcome would be even more anomalous if the spouse’s
interest
in the annuity contract was exempt from attachment in terms of
s 37A
of the
Pension Funds Act, because
then there would be nothing for the
other spouse to attach in satisfaction of the accrual award.
[110]
It might be argued that the appellant’s conditional right to
future annuity payments is an asset which can be valued.
However, and
even if this were an asset which did not enjoy the protection of
s 37A
and could notionally be included in a spouse’s
accrual (on which it is unnecessary to express an opinion), the
respondent
did not adduce evidence to establish the value of the
conditional right. Such value could not simply be equated to the
value of
the capital held by Sanlam. The value of the conditional
right would be affected by the appellant’s life expectancy and
the
rate at which he has in the past, and is likely in the future, to
draw down his annuity.
[111]
Indeed, the respondent did not even prove the capital value held by
Sanlam at the relevant date. She relied on a Sanlam letter
which gave
the fund value used for illustrative purposes as at 24 July 2013.
Assuming that that was the actual capital held by
Sanlam as at that
date, this was more than three years before the trial court gave
judgment. The appellant’s estate had to
be valued as at the
date of the divorce. In the intervening three-year period the capital
value would have reduced by the amount
of annuity instalments paid to
the appellant and would have fluctuated (either up or down) by virtue
of market conditions
[112]
It follows that the high court erred by including the Glacier
contract as part of the appellant’s accrual. The monthly
income
derived by the appellant from the annuity, however, forms part of his
total income which has a bearing on his means to pay
maintenance, if
any, to the respondent.
Miscellaneous
aspects of accrual
[113]
The accrual can only be calculated once the counterclaims and the
effect of the restitution of donations have been determined.
With
regard to the rest of the appellant’s estate for accrual
purposes, the list of assets is mostly uncontentious. We will
deal
with the Rondebosch house presently. It is common cause that the
appellant owns two immovable properties in Wellington, namely
a house
in a security estate valued at R500 000 net (R2.2 million less a
bond of R1.7 million) and a vacant erf valued at
R100 000. We
have already dealt with the related-party loan claims. The rest of
the assets comprise personal effects, policies
(excluding the living
annuity) and net investments in the appellant’s legal practice
and farming operations. We have excluded
the contents of safety
deposit boxes in Paarl and Hamburg, since we are not satisfied that
the contents of these boxes all belong
to the appellant. There is
insufficient evidence, in particular with regard to the Hamburg box,
of the appellant’s ownership.
From the calculation must be
deducted the legal fees owing to the appellant’s attorneys,
which the high court assessed at
R2 million.
[114]
We deal next with the donations under the contract and the
appellant’s counterclaims, since they may have an effect
on the
final calculation of the accrual. Before dealing with the appellant’s
counterclaims, it is necessary first to consider
the effect of the
declaration of invalidity of the waiver clause on the reciprocal
donations made by the appellant.
Restoring
the donations under the contract
The
cash donation of R300,000
[115]
The declaration of invalidity of the waiver must self-evidently
result in the restoration of the donations. In principle,
the
appellant is entitled to recover the donations he made in return for
the waiver. He claimed restitution of the donations as
an enrichment
claim by way of the
condictio
indebiti
.
The legal basis for that claim is that the waiver provisions in the
contract were void
ab
initio
.
That must be so, given the majority’s finding that the clause
is against public (legal) policy. On Rogers AJA’s approach
as
to why the waiver should be overridden in this case, the preferred
approach might be to apply the rules of
restitutio
in integrum
.
[30]
The respondent, having elected not to be bound by the waiver and
having persuaded the court to exercise its overriding discretion,

must restore what she received as
quid
pro quo
for the waiver. Ultimately, regardless of which one of these two
remedies one prefers, the outcome will be the same.
[116]
The respondent tendered to return the donations in the event of the
waiver being declared invalid. The high court correctly
found that
the appellant had in fact made the cash donation of R300 000.
Based on the
condictio
,
the respondent is presumed to have been enriched and, absent a plea
of non-enrichment or loss of enrichment as a defence, the
respondent
must restore that amount.
[31]
An actuarial calculation shows that the present day value of that
amount is R1 409 596 – that is the amount which

should be restored, so it was contended. But there was no evidence
that the respondent invested the money in a manner that would
have
generated a return equal to the inflation rate. Interest on a claim
based on unjustified enrichment is not payable until the
debtor has
been placed in mora.
[32]
Since
the appellant’s counterclaim was conditional upon the
respondent succeeding in having the waiver declared invalid,
the
appellant is in our view entitled only to mora interest on the amount
of R300 000 from the date of the high court’s
judgment.
The
donation of a half-share in the matrimonial home
[117]
The high court ordered the appellant to transfer to the respondent
his half share in the Rondebosch property against payment
of the sum
of R2 million by the respondent, to be made by way of a reduction of
the accrual award. The parties are registered as
co-owners of this
property. The appellant claimed termination of the co-ownership under
the
actio communi dividundo.
A
determination must, however, first be made as to the true status of
the Rondebosch property, having regard to the fact that it
is the
third of the parties’ successive matrimonial homes, the first
of which was the subject of a donation in the contract.
[118]
It will be recalled that one of the donations required to be made in
terms of the contract was a half share in the Twickenham
property,
owned by the appellant at the time of the marriage. The trial judge
upheld the contention advanced on behalf of the respondent
that this
donation did not take place because the half-share was never
registered in her name. We disagree. In terms of the contract,
once
the contract had been executed and registered, the donation itself
was completed as between the parties. What was required
further in
terms of clause 6.1 was for the appellant, upon a request by the
respondent, to transfer the property into their joint
names. Such a
request for transfer was never made. The parties never intended to
live in the Twickenham property. Instead, by agreement,
the
respondent began looking for another house.
[119]
The Twickenham property was sold in May 1993 and the parties agreed
to apply the proceeds of that sale to buy the Saxonwold
property. The
respondent was registered as a co-owner of that property and she must
undoubtedly have regarded that as fulfilment
of the promised donation
in the contract. In her evidence she indicated that perhaps for
‘practical reasons’ she had
not been registered as a
co-owner of the Twickenham property. And she acknowledged that ‘he
used the money from the first
house as my share to buy the next
house’. This evidence accords with the respondent’s plea
to the appellant’s
conditional counterclaim, where it was
admitted that her half-share of the proceeds from the Twickenham
property was applied to
buy the Saxonwold house. She never testified
that the donation in the contract had not been fulfilled.
[120]
The proceeds of the sale of the Saxonwold property in April 2007 were
by joint decision applied to buy the Rondebosch house.
The respondent
was again registered as a co-owner. It is common cause that she
contributed no funds of her own to the purchase
or improvement of the
Saxonwold or Rondebosch properties. Applying the principles of
unjustified enrichment or restitutio in integrum,
self-evidently the
respondent must restore her half-share of the Rondebosch property,
which is directly traceable to the donation
of a half-share of the
Twickenham property. She has been enriched, by that donation, in the
amount currently represented by her
half-share of the Rondebosch
property. That amount equals the extent of the impoverishment of the
appellant, because on each succeeding
occasion the matrimonial homes
were registered in the names of both parties where, in truth and in
fact, they should have been
registered in the appellant’s name
alone, given the invalidity of the donation. (The Parkview apartment
does not feature
in this discussion, because the appellant bought the
respondent’s half-share in April 2014 for the sum of R320 000.)
[121]
The high court’s order entitling the respondent to buy the
respondent’s half share of the Rondebosch property
thus cannot
stand. Conversely, though, the appellant’s accrual must be
determined on the basis that he has the sole right
to the Rondebosch
property. This raises the question as to whether and to what extent
the Rondebosch property is an excluded asset.
[122]
The Twickenham property was an excluded asset. That is not in
dispute. The proceeds from its sale, which were also excluded

proceeds, were applied to purchase the Saxonwold property. The
appellant also used some excluded resources to make improvements
to
the Saxonwold property. On the other hand, he used his professional
income (a) to make other improvements to the Saxonwold
property;
(b) to make mortgage payments on the bond taken out to fund the
balance of the Saxonwold purchase price and to fund
some of the
improvements; and (c) to pay rates and taxes on the property. When
the Rondebosch property was bought from the Saxonwold
proceeds, he
used his professional income to pay for certain property-related
expenditure. The value of the Rondebosch property
is thus partly
referable to excluded resources and partly referable to non-excluded
resources.
[123]
It is thus clear that at least part of the Rondebosch property’s
value should be regarded as an excluded asset. How
is this to be
determined? The interpretation of the concluding part of clause 5,
which we quoted earlier, is not free from difficulty.
If non-excluded
funds are applied in the manner contemplated, must they be included
in the accrual at the nominal amount expended
or with reference to
the amount by which the expenditure has led to an enhanced value at
the date of the divorce? The clause also
does not explicitly deal
with the case where an asset, from the outset, is purchased partly
with excluded resources and partly
with non-excluded resources. If
one spouse were to purchase an asset for a price of R1 million
and were to pay the price as
to R500 000 from excluded resources
and as to R500 000 from non-excluded resources, and if at the
date of the divorce
the asset were worth R5 million, would one
include R500 000 or R2.5 million in the accrual? The same
question would arise
if, after the marriage, one spouse were to spend
R500 000 from non-excluded resources in improving an existing
excluded asset
then worth R500 000.
[124]
Although the clause says that the ‘funds’ shall be
included in the calculation of the accrual, it does not specify
how
they must be factored into the calculation. We do not think the only
meaning of which the clause is linguistically capable
is that the
funds must be included at their nominal amount at the time of the
expenditure. Such a meaning strikes us as unjust
and unbusinesslike.
Why ascribe all the enhancement in value to the excluded component?
We thus think that where both excluded
and non-excluded resources are
applied to an asset, the extent to which the value of the asset at
the date of the divorce is to
be included in the accrual must be
determined by assessing a fair and reasonable ratio between the
excluded and non-excluded resources
which contributed to the asset’s
value. While in many cases this would result in the inclusion of a
greater amount than the
nominal non-excluded expenditure, the
converse would also be possible. If the asset decreased in value, the
amount to be included
in the accrual might be less than the nominal
non-excluded expenditure.
[125]
As to the onus of proof, the appellant, as we have said, bore the
onus of proof to establish exclusion. As to the concluding
part of
clause 5 (which qualifies the extent of the exclusion), there may be
an evidentiary onus on the non-owning spouse to show
that there was
non-excluded expenditure on the excluded asset. Once, however, it
appears from the evidence that only part of the
asset qualifies for
exclusion, considerations of fairness and pragmatism dictate that the
owning spouse bears the onus of proving
the extent of the exclusion.
[126]
The determination of the excluded and non-excluded components must
inevitably be a somewhat rough and ready process. The Twickenham

property yielded net proceeds of R372 000 in May 1993. The
Saxonwold property was purchased at the same time for R470 000.

Subsequently a bond of R250 000 in favour of Nedbank was
registered over the Saxonwold property. There is some confusion in

the evidence as to what occurred in the period after the Saxonwold
property was transferred to the parties but before the registration

of the mortgage bond. It seems that the appellant was granted a
facility by the bank which was then substituted by the mortgage
bond.
We thus proceed on the basis that R250 000 was borrowed to cover
the balance of the purchase price of the Saxonwold
property and some
of the improvements. In May 2001 a mortgage bond in favour of
Investec was registered in place of the Nedbank
bond. At that time
the balance owing on the Nedbank bond was R245 156.
[127]
In his counterclaim for property-related expenses (as adjusted during
the course of the trial), the appellant alleged that
he spent
R490 528 on Saxonwold improvements; made bond payments totalling
R541 513 up to the time the Saxonwold property
was transferred
in August 2007; and paid rates and taxes totalling R143 103 over
the period August 1993 to May 2007:
(a)
In regard to the improvements of R490 528, the appellant
testified that R136 877 came from his No 2 account,
ie from
excluded resources. He knew this because he kept a list at the time
which was handed in as evidence. These payments were
made during
1993. Regarding the balance of R353 651, he was unable to say
from which accounts they were paid. Given the incidence
of onus, we
must assume in favour of the respondent that the balance was paid
from non-excluded resources.
(b)  The
bond payments were not made from excluded resources. The appellant
testified that the Nedbank bond payments were
made from his private
account and the Investec bond payments from his practice account.
(c)  The
appellant testified that the rates and taxes were definitely not paid
out of the No 2 account, ie from excluded
resources. In our view,
rates payable on property constitute a ‘debt’ which is
‘related to’ the property
within the meaning of the
concluding part of clause 5. Although the rates and taxes would have
included a component for services
such as water and refuse collection
(which are more in the nature of living expenses than debts relating
to the ownership of the
property), the evidence does not enable one
to isolate these components. Accordingly the full expenditure on
rates and taxes must
be included.
(d)  The
nominal amount of the excluded expenditure on the Saxonwold property
was thus R508 877 (the Twickenham proceeds
of R372 000 plus
Saxonwold improvements of R136 877) while the nominal amount of
the non-excluded expenditure was R1 038 267.
[128]
When the Saxonwold property was sold, it yielded net proceeds of
R5 577 477 after settlement of the Investec bond
liability
and agent’s commission. In order to determine what portion of
the net proceeds of R5 577 477 constituted
an excluded
asset, it is necessary to ascertain what proportion of that amount is
fairly referable to excluded and non-excluded
resources respectively.
In the absence of any better method, we think it would be fair to
determine this proportion by adjusting
the amounts in question to
account for inflation. Adopting this approach, the excluded and
non-excluded components of the net Saxonwold
proceeds amounted to
45 per cent and 55 per cent respectively. (So as not to
burden this judgment, the workings are set
out in appendix 1.)
[129]
Out of the net proceeds of R5 577 477, an amount of
R5 231 664 was used to fund the purchase and to improve
the
Rondebosch property while the balance was expended on the Parkview
apartment (which was funded mainly by a mortgage bond).
It is
reasonable to assume that the excluded and non-excluded components of
the Saxonwold proceeds were applied in the same proportions
to the
Rondebosch and Parkview properties. The appellant paid rates and
taxes on the Rondebosch property totalling R140 103.
Since it
was not shown that these payments came from non-excluded resources,
they must be included in the calculation of the accrual.
This results
in a final ratio, applicable to the Rondebosch property, of 44 per
cent excluded and 56 per cent non-excluded. (Again,
so as not to
burden the judgment, the workings are contained in appendix 1.)
[130]
At the start of the trial in August 2014 the parties agreed that the
Rondebosch property was worth R5.6 million. It follows
that we treat
56 per cent of that amount, namely R3.136 million, as part of the
appellant’s accrual. There is a mortgage
bond registered over
the Rondebosch property and for purposes of calculating the accrual
the parties accepted the liability as
being R800 000. The
question arises as to whether the whole of this liability, or only 56
per cent thereof, is deductible
in arriving at the appellant’s
net accrual.
[131]
The MPA is silent on the point. If a person has incurred a liability
to acquire or improve an excluded asset, we would think
the
liability, like the asset, should be left out of account. In the
present case, however, the liability secured by the mortgage
bond was
not incurred to acquire or improve the Rondebosch property. It was
incurred later, when the appellant urgently needed
money to pay tax.
Although the loan is secured by a mortgage bond, the tax liability
which caused the appellant to borrow the money
is associated with his
professional income, which is not an excluded resource. We thus think
the full liability is deductible (the
contrary was not argued). For
the same reason, the payments the appellant has made to the bank in
respect of the liability secured
by the Rondebosch mortgage bond
should not be taken into account for purposes of the last part of
clause 5 of the contract.
The
counterclaim for property-related expenditure
[132]
The appellant claimed the repayment of half of all the amounts spent
in respect of jointly owned properties. The claim was
based on
co-owners’ joint responsibility for costs related to jointly
owned property. However, in view of our finding that
the donations in
the contract must be unwound, the counterclaim for property-related
expenditure falls away, since in effect the
money was expended on
property which belonged to him exclusively. In supplementary heads it
was conceded on behalf of the appellant
that, if the half share of
the Rondebosch property is restored to the appellant, his
counterclaim for property-related expenses
falls away.
The
counterclaim for delivery of movables
[133]
The appellant claimed the delivery of certain movables which had
remained in the Rondebosch house. The respondent disputed
that all
items were in her possession but has, nonetheless, tendered the
return of all the movables on the list which are still
in the house,
once the accrual award due to her has been paid.
Final
calculation of accrual
[134]
Based on the findings made thus far, the appellant’s net estate
for purposes of computing the accrual is as set out
in the following
table:
Included assets
Included component of
Rondebosch property
3 136 000
26% shareholding in
Blouvlei
2 840 444
SA
loan accounts
[33]
1 325 758
Net
Namibian loan accounts
[34]
1 245 028
Erf 11367 Wellington
(net of bond liability)
500 000
16 Albedo Street,
Wellington
100 000
Legal practice assets
959 137
Farming assets
500 000
Personal effects
1 095 000
Debtors
3 947
Policies
156 102
Total accrual
assets
11 861 416
Liabilities
Rondebosch bond
(800 000)
Overdraft
(168 934)
Legal costs
(2 000 000)
Total
liabilities
(2 968 934)
Net accrual
8 892 482
Plaintiff’s
half-share
4 446 241
[135]
As against the respondent’s accrual entitlement of R4 446 241
(which would carry mora interest from date of
judgment), the
respondent became indebted to the appellant in the amount of R300 000
plus mora interest from date of judgment.
The appellant admitted,
however, that he owed the respondent €23 000 for monies she
lent him in respect of the French
farm. Although he sought to set off
this indebtedness (in a rand amount of R230 000) against his
counterclaim for improvements,
on the approach set out above he has
no counterclaim for improvements. We would thus set off his
indebtedness of R230 000
against the respondent’s
obligation to repay the donation of R300 000, giving a net
amount of R70 000 owed by her
as monetary restitution. Her
liability of R70 000 should, in turn, be set off against the
appellant’s accrual liability
to her, resulting in a net
accrual liability owed by the appellant to the respondent
of R4 376 241 together with
mora interest from date of
judgment.
[136]
The respondent will also have to co-operate in having her half share
of the Rondebosch property transferred to the appellant.
We do not
know whether transfer duty will be payable. Certainly some legal
costs will be incurred. The parties should share these
costs. This
can be achieved by authorising the appellant to deduct, from his net
accrual obligation of R4 376 241, a
half share of the
reasonable costs of securing transfer of the respondent’s half
share of the Rondebosch property into his
name.
The
respondent’s maintenance claim
[137]
On 8 December 2016 Baartman J made an order that, pending this
appeal, the appellant pays the sum of R7 800 per month
as
maintenance to the respondent as well as the bond and municipal
charges in respect of the Rondebosch property. That order remains

extant and, we were informed from the bar, is being complied with.
[138]
An assessment of the respondent’s claim for maintenance must
take into account the factors mentioned in
s 7(2)
of the
Divorce Act
70 of 1979
. She claimed
certain amounts of
maintenance unconditionally and certain other amounts conditionally
upon her being awarded less than R4.4 million
by way of accrual. Her
unconditional claims, which for convenience we shall call Part A,
were in summary the following:
(a)
that the appellant pay her R30 000 per month, increasing
annually by the percentage change in the ‘Headline
inflation
rate (also known as the Headline Consumer Price Index) as notified by
Statistics SA’ (the index);
(b)  that
the appellant bear the cost of all her medical and health-related
treatment;
(c)  that
the appellant provide her with a new vehicle of her choice, with a
value equivalent to a new Subaru Outback
2.5i Premium, every five
years.
Her
conditional claims, which for convenience we shall call Part B, were
in summary the following:
(a)  that
the appellant purchase a home of her choice for the maximum price of
R3.8 million, escalating at 15 per cent
per annum as from 1 August
2011 until the property is made available to her;
(b)  that
the appellant pay all costs of transfer into her name and furniture
removal costs;
(c)  that
the appellant pay all rates and taxes on the property, houseowner’s
insurance premiums and the costs of
interior and exterior
maintenance;
(d)  that the
appellant pay her R250 000 to enable her to furnish and equip
the new home.
[139]
In respect of the Part A claims, the high court awarded the
respondent R30 000 per month increasing annually in accordance

with the index and a new vehicle with the claimed value every six
years. The court made no order on the claim in respect of medical

expenses. Because the high court awarded her more than R4.4 million
by way of accrual, no order was made on Part B. Since the
respondent’s accrual award in the present case (prior to
setting off her net restitutory obligation of R70 000) is
R4 446 241,
we likewise need not consider the Part B
claims.
[140]
The respondent was 51 years old at the time the high court gave
judgment and is now 53. The appellant was 77 years old and
will be 79
by the time judgment in the appeal is delivered. The appellant’s
evidence is that, but for his trial expenses,
he would by now have
retired. It is not reasonable to expect him to continue working for
any length of time at his age. The high
court misdirected itself by
finding that there was no reason why his real net taxable income in
the future would not be as high
as it was over the period 2012 to
2015.
[141]
The appellant’s ability to pay maintenance must thus be judged
on the assumption that he will not continue to earn professional

income. He will continue to receive income from his living annuity
but this is unlikely to cover more than his own living expenses.
His
farming operations may become profitable in the future and Mont du
Toit’s wine-making operations may also become profitable
and
result in the payment of dividends to the shareholders. However,
neither the farming nor the wine-making operations are yet

profitable. It is thus to the appellant’s capital resources
that regard must mainly be had. For maintenance purposes, these

include both excluded and non-excluded assets.
[142]
As to the respondent’s reasonable living expenses, her itemised
maintenance requirements came to R37 113 per month.
She arrived
at the claimed amount of R30 000 by deducting from R37 113
the items for rates and taxes, houseowner’s
premiums and
medical expenses. The first two deductions were made on the
assumption that, if she were awarded less than R4.4 million
by way of
accrual, the appellant would be responsible for paying rates and
taxes and houseowner’s premiums; and that if she
were awarded
more than R4.4 million she would not reasonably require the appellant
to pay these expenses. The third deduction was
made on the basis that
she advanced a separate claim for medical costs.
[143]
The high court’s acceptance of the respondent’s claim of
R30 000 per month was based on a finding that it
was reasonable
for the respondent to continue living in the Rondebosch house. This
was a misdirection. The Rondebosch house is
a family home which was
bought at a time when the parties were still married and the children
were living at home. By the time
of the trial both children were
adults and had left the home. The appellant has always paid their
reasonable needs. The appellant
has downscaled and the respondent can
reasonably be expected to do likewise. There was evidence that the
respondent earns money
by accommodating a boarder attending a nearby
school. This is not something she is entitled to do at the
appellant’s cost.
[144]
A townhouse or flat in the southern suburbs of Cape Town with a main
bedroom and a guest room would be adequate for her reasonable

requirements. On this basis, some of the respondent’s
maintenance claims must be moderated. With reference to her itemised

schedule totalling R37 113, the rates and taxes and houseowner’s
premiums must be deducted, given the accrual award.
We would reduce
the amount claimed in respect of electricity and property
repairs/repainting by one-third. Her grocery claim of
R7287 includes
groceries for children, including presumably the boarder. Since the
children no longer live at the home and the
appellant cannot be
expected to maintain boarders, we would reduce the sum to R5000. The
monthly claim of R400 as pocket money
for the children should also be
disallowed. This reduces the total claim from R37 113 to R28 514
which we will round
down to R28 500.
[145]
In regard to medical expenses, we consider it preferable to include
an allowance for medical expenses in the monthly maintenance
rather
than to lumber the appellant with an open-ended liability such as
contemplated by the respondent’s separate claim
in that regard.
Her schedule of monthly expenses reflected medical costs totalling
R3385 per month, the major component being a
monthly medical aid
contribution to Discovery of R3028. Although her current employer
pays half of this amount, it is deducted
from her salary. Since the
salary figures canvassed by the experts were, we assume, prior to
such deductions, we shall not make
any downward adjustment in respect
of her monthly medical claim.
[146]
Evidence was led regarding the respondent’s future earning
capacity. After the separation in 2010, the respondent worked
for
some time for a Swiss wine company, known as 4G. She claimed to have
done so for no remuneration. At the time of the trial
the respondent
was working at the online retailer, Amazon’s, call centre,
rendering service to German-speaking clients who
called in. That job
entailed working around 30 hours per week for remuneration of between
R6 000 and R8 000 per month.
On behalf of the respondent,
an industrial psychologist, Ms Elizabeth Hofmeyr, and a psychiatrist,
Dr Konrad Czech, were called.
Ms Hofmeyr opined that, once the
respondent had overcome her emotional vulnerability and mental
instability after a year or so,
she could pursue employment
opportunities in the export, wine, marketing or hospitality industry
where she could earn between R120 000
and R180 000 per
annum. Thereafter, according to Ms Hofmeyr, in approximately five to
six years’ time, she could earn
approximately R300 000 per
annum on a more senior level. Ms Hofmeyr’s report was dated 29
January 2014.
[147]
Dr Czech had been treating the respondent for severe major depression
since June 2012. His report was dated 31 October 2014.
When he saw
her on 27 August 2014, the respondent presented with symptoms of
major depression and acute stress reaction which was
in remission.
According to Dr Czech, depression can result in cognitive impairment.
In his opinion, the respondent would only be
able to work after a two
year recuperation period, and then it must not be stressful work.
[148]
Mr Matthias Le Roux, a human resource practitioner, based in Paarl in
the Western Cape and who specializes in the wine industry,
furnished
a report and testified in the appellant’s case. Like Ms
Hofmeyr, Mr Le Roux conducted an interview with the respondent.
He
evaluated her post as a wine marketer on post level 8. Mr Le Roux
regarded the respondent as employable in international wine

marketing, capable of earning between R30 000 and R50 000
per month.
[149]
Mr Le Roux’s evidence was subject to trenchant criticism by the
respondent’s counsel. In turn, the appellant’s
counsel
was critical of Dr Czech’s testimony and report. The high court
rejected Mr Le Roux’s evidence on the basis
that ‘he
clearly aligned himself with the [appellant] and I do not consider
his evidence particularly helpful or objective’.
The opinion
that the respondent had an earning capacity of between R30 000
and R40 000 per month was ‘far-fetched
and absurd,’
according to the learned trial Judge. He considered Dr Czech and Ms
Hofmeyr to be unduly optimistic about the
respondent’s ability
to recover and to compete effectively in the job market. The learned
trial judge held that the respondent
had worked as a marketer for the
Mount du Toit cellar wines ‘under conditions of sheltered
employment’.
[150]
Unlike the appellant, the respondent will be able to earn an income
for some years to come. Even if she were only to work
until the age
of 65, she still had 14 years (as at the date of the high court’s
judgment) to earn remuneration. At the time
of the trial, as noted,
the respondent was doing part-time work in the Amazon call centre
earning around R7000 per month. This
is the level at which the high
court pitched her earning ability. That determination was lower than
the assessment of both sides’
experts and lower than the
respondent’s own assessment.
[151]
The high court’s determination is not reasonably supported by
the evidence. The respondent has a German legal qualification.
German
is her native tongue and she is fluent in English and reasonably
proficient in Afrikaans. She has also undergone training
as a
mediator. She has an engaging personality. In the latter years of the
marriage she obtained knowledge about wine and was successful
in
expanding the international market for Mont du Toit’s wines.
Her CV described her ten years with Mont du Toit as ‘international

marketing’ in which she established markets in the United
States and various European countries. When she travelled overseas

for Mont du Toit, her hourly rate translated into monthly
remuneration of around R30 000. To describe her work for Mont du

Toit as ‘sheltered employment’, as the trial judge did,
is demeaning and unwarranted.
[152]
Although she is probably no longer able to turn her legal
qualification to account in professional practice, the fact that
she
obtained a German law degree would mark her out as a person with
above-average intellectual abilities. Coupled with the other

attributes we have mentioned, she ought not to experience difficulty
in obtaining employment in the Western Cape in wine-marketing
or the
hospitality industry. Since the children are adults, the respondent
will have the freedom to travel overseas if her work
takes her there,
just as she did when marketing Mont du Toit’s wines.
[153]
The respondent may have confined herself to the call centre job
because of the stress of the trial and the need to take time
off to
attend to matters concerning the trial. Once the divorce was granted,
however, there was no justification for confining
her earning
capacity to R7000 per month. That was the amount she earned for
part-time work. Even if she stayed with Amazon, she
testified that
she could apply for higher positions if she worked full-time. Based
on the evidence, including the expert opinions
of Ms Hofmeyer and Mr
le Roux, we think that within a fairly short period of time she could
command R20 000 per month (and
we regard this estimate as
conservative).
[154]
We would thus assume earnings of R10 000 per month for the first
year following the divorce, R15 000 per month for
the second
year and R20 000 per month thereafter. Deducting these amounts
from her reasonable maintenance needs of R28 500
per month, we
arrive at a reasonable maintenance claim of R18 500 per month
for the first year following the divorce (from
1 September 2016),
R13 500 per month for the second year (from 1 September 2017)
and R8500 per month thereafter (from 1 September
2018) until death or
remarriage.
[155]
Since the respondent’s maintenance claims were clearly
formulated on the basis that she would not require assistance
with
accommodation if she obtained an accrual award of R4.4 million or
more, it is unnecessary to consider providing her with a
further
capital sum to assist her in obtaining accommodation. We simply
observe that in our view a sum of R4.4 million will enable
the
respondent to purchase and equip a downscaled property in the
southern suburbs. Until the Rondebosch property is sold and she

receives her accrual award, the respondent’s accommodation
needs can be met by requiring the appellant to allow her to continue

living there rent-free.
[156]
The fact that the respondent reasonably requires maintenance in the
amounts set out above does not automatically lead to the
conclusion
that the appellant should be ordered to pay them. An important
question is naturally whether the appellant can afford
to pay
maintenance in these amounts. Since he is entitled to sole ownership
of the Rondebosch property, and since he does not require
that
property for his own residential needs, the property could be sold.
Although the parties agreed a valuation of R5.6 million,
the evidence
established that the property was almost certainly worth more than R6
million by the time of the trial. Rondebosch
real estate has
increased in value since August 2016. Assuming that the appellant
were able to sell the Rondebosch property for
a net amount of R5.2
million after settling the mortgage liability, he would be able to
pay the respondent her accrual award of
around R4.4 million and be
left with R800 000.
[157]
Based on the respondent’s estimated life expectancy and an
actuarial calculation, it was agreed in the high court that
the
capital sum required to fund maintenance for the respondent of R1000
per month for life was R285 000. According to the
respondent’s
supplementary submission filed after the hearing of the appeal, the
required amount is now R234 100. On
the latest figures, it
follows that, in order to fund monthly maintenance for the respondent
of R8500 as from 1September 2018 for
the rest of her expected life,
the appellant will require a capital sum of just under R2 million. As
indicated above, R800 000
of this amount would be available from
the sale of the Rondebosch property. (We leave out of account the
maintenance payable over
the first two years following the divorce
since most of this period lies in the past and the appellant has –
presumably from
his professional earnings – paid a substantial
part of that maintenance by virtue of Baartman J’s order.)
[158]
According to the accrual calculations, the appellant has net
recoverable loan claims against Caledon Street Guest House, Mont
du
Toit and Gamsberg totalling R2 570 786. If these loan
accounts were repaid to the extent of R1.2 million, his
net cash
resources following the sale of the Rondebosch property would suffice
to fund his maintenance obligations as from 1 September
2018.
[159]
It is true that, as matters currently stand, the companies in which
the appellant has loan accounts do not have liquid resources
from
which to repay him. However, and having regard to the value of
Wellington farm, the loan accounts could readily be repaid
if the
farm were sold. This would also yield the appellant a liquidation
dividend on his 26 per cent shareholding in Blouvlei.
The Wellington
farming operation is one about which the appellant seems to be
passionate. We do not share the high court’s
scepticism in that
regard. It may seem hard on him to require the farm to be sold so
that he can pay the respondent maintenance.
On the other hand, he is
advanced in years and it does not seem likely that he will be able to
continue as an active farmer for
much longer. There is no evidence
that any of his children have displayed an interest in taking over
the farming operation. The
sale of the farm would thus not be a great
injustice to the appellant.
[160]
Since the appellant’s preference shares in Gamsberg give him
voting control of that company, he effectively controls
more than 75
per cent of the votes in Blouvlei, Clos du Toit and Mont du Toit. It
thus lies within his power to cause those companies
to cease their
operations and sell the farms. Even if that were not strictly the
case, there is no reason to suppose that Tartan
and the Monaco trust
would stand in the way of the sale if the appellant so wished. There
is no other person associated with Tartan
or the Monaco trust who
would be able to take over the active management of the farms. In any
event, if the appellant were to demand
repayment of his loan
accounts, the companies in question would have no choice but to sell
the farm or face liquidation. Of course,
it is possible that Tartan
and the Monaco trust have other resources available to them of which
we have no knowledge. If they and
the appellant wish to continue the
farming operations despite the need to repay the appellant his loan
accounts, Tartan or the
Monaco trust might be able to advance the
relevant companies the necessary funds from such other resources.
[161]
The marriage between the parties lasted 24 years. Because of the
marriage, the respondent uprooted herself from Germany and
was not
able to pursue her legal career there. During a large part of the
marriage the respondent was responsible for the primary
care of the
children because the appellant was pursuing his legal career, a
career which would sometimes took him away from home.
We do not think
she can be criticised for having declined to requalify herself as a
South African lawyer. That would have been
a substantial undertaking
as a middle-aged woman, given the significant differences between
South African law and German law. She
testified, and we have no
reason to doubt, that she has now made her life in South Africa, more
particularly in the Cape Peninsula,
and does not wish to live in
Germany.
[162]
In all the circumstances, and having regard to the factors in
s 7(2)
,
we would make an order for monthly maintenance in the amounts
indicated above. We would also order that the respondent

be entitled to retain as her own the vehicle she was driving at the
time of the high court’s judgment. We would not order
the
appellant to pay for the periodic replacement of the vehicle.
[163]
The amounts of monthly maintenance mentioned in this judgment are
stated in nominal terms as at 1 September 2016. They must
be adjusted
in accordance with the percentage change in the index in order to
arrive at the actual amounts payable as from 1 September
2017 and 1
September 2018 respectively. Furthermore, the adjusted amount which
is payable as from 1 September 2018 must be annually
adjusted on 1
September of each succeeding year with reference to the same index.
Costs
and order
[164]
In regard to costs in the high court, the substituted order we intend
to make would still represent substantial success for
the respondent
(as plaintiff), even though it is substantially less than the trial
court awarded her. She thus remains entitled
to her costs in the high
court.
[165]
The high court ordered the appellant to pay, on an attorney and
client scale, the costs of the action as well as the costs
of a
number of interlocutory applications and the qualifying costs and
attendance fees of the respondent’s experts. In respect
of the
action and the interlocutory applications, the costs of two counsel
were allowed. It was contended on behalf of the appellant
that these
costs awards were not justified, particularly the punitive scale.
Costs are in a trial court’s discretion. Absent
any improper
exercise of that judicial discretion, namely a fatal irregularity or
misdirection or a startlingly inappropriate decision,
a court of
appeal will not interfere, even though it may take a different view
on costs.
[35]
There are no
grounds to interfere on appeal with the costs orders of the high
court, which were motivated primarily by the appellant’s

conduct, discussed extensively in this judgment.
[167]
The costs in this court stand on a different footing. The appellant
has obtained a substantial amelioration of the high court’s

order. On the other hand, he has fallen well short of his objective
of establishing that the waiver of maintenance was valid and
that his
estate showed no accrual. We thus think that in this court the
parties should bear their own costs.
[168]
Since the appellant will need time to realise assets in order to
satisfy the accrual claim, we consider it appropriate, in
terms of
s 10
of the MPA, to defer payment of the accrual. The most
likely source of capital will be from the sale of the Rondebosch
property.
A deferral until 1 December 2018 for this purpose should
suffice. In the meanwhile the accrual award will attract interest at
the
prescribed rate. As indicated earlier, the respondent will be
entitled to remain in occupation of the Rondebosch property rent-free

until the accrual amount is paid to her.
[169]
The following order is made:
[a]
The appeal is upheld in part.
[b]
Paragraphs 3, 4, 5, 6 and 7 of the order of the high court are set
aside and substituted with the following (to avoid confusion,
the
paragraph numbering in the court a quo’s order is retained) :
‘
3.
Maintenance:
3.1. The
defendant is directed to pay to the plaintiff maintenance as follows:
(a)
R18 500 per month for one year as from 1 September 2016;
(b) R13 500
per month for one year as from 1 September 2017;
(c) R8500
per month as from 1 September 2018.
3.2.
The obligation to pay maintenance as aforesaid shall endure until the
plaintiff’s death or remarriage, whichever occurs
first. The
maintenance must be paid by way of debit order into such bank account
as the plaintiff nominates from time to time and
by not later than
the first day of each month. The defendant shall be entitled to
deduct from the amounts specified in 3.1(a) and
3.1(b) the amounts of
maintenance already paid pending the appeal.
3.3.
The amounts of maintenance specified in 3.1 above are expressed in
nominal terms as at 1 September 2016. The amounts payable
as from 1
September 2017 and 1 September 2018 respectively, and as from 1
September of each succeeding year, must be adjusted by
the percentage
change in the headline inflation rate (also known as the Headline
Consumer Price Index) as notified by Statistics
SA (or its
equivalent) (‘the index’). Such percentage change shall
for purposes of convenience be deemed to be equal
to the latest index
available from Statistics SA on the anniversary date.
4. The accrual
in the defendant’s estate is held to be R 8 892 482.
5.
The defendant shall pay to the plaintiff half of this amount, minus
R70 000 in respect of the plaintiff’s net restitutionary

obligation, ie a net amount of R4 376 241, by not later
than 1 December 2018. Pending such payment, and as from 5 August

2016, interest shall run on the said net amount at the prescribed
rate.
6. The
Rondebosch property:
6.1 The
plaintiff is ordered to transfer to the defendant her undivided half
share in the property situated at 5 Woodlands
Road, Rondebosch, Cape
Town (the Rondebosch property) free of consideration.
6.2
Such transfer shall be effected as soon as is reasonably practicable
after the date of the appeal judgment.
6.3 The
reasonable costs of transfer shall be borne in equal shares by the
parties.
6.4
Transfer shall be effected by attorneys appointed jointly by the
parties, such appointment to be made within one month of the
appeal
judgment. If the parties cannot agree on the identity of such
attorneys within the said one-month period, attorneys appointed
by
the President of the Law Society of the Cape of Good Hope shall be
mandated by the parties to effect transfer.
6.5 The
plaintiff shall be entitled to remain in occupation of the Rondebosch
property rent-free until one month after the
date on which payment of
the amount in 5 above is effected. Any agreement for the sale of the
property must be subject to this
right of occupation.
7.
The defendant may collect the movables specified in Exhibit 41 of the
record from the Rondebosch property during the one-month
period
contemplated in 6.5 above.’
[c] The
parties shall bear their own costs of appeal.
___________________
S
A Majiedt
Judge
of Appeal
___________________
O
L Rogers
Acting
Judge of Appeal
Majiedt
JA (Saldulker and Dambuza JJA and Plasket AJA concurring):
[170]
As foreshadowed in the joint judgment, this is my separate judgment
on the unenforceability of the waiver of maintenance.
The respondent
advanced five grounds in support of her contention that the clause is
per se against public policy. They are briefly
as follows:
(a)
First, that the clause seeks to exclude a court’s statutory
power to award maintenance in terms of
s 7
of the
Divorce Act in
the
future.
(b)
Second, that the clause seeks the future exclusion of the statutory
right conferred by s 2 of the Maintenance of Surviving Spouses
Act 27
of 1990, to claim maintenance from the appellant’s estate on
the dissolution of the marriage by his death.
(c)
Third, the clause seeks to exempt the appellant from the consequences
of all and any misconduct by him, even that cognisable
by the court
in terms of
s 7(2)
of the
Divorce Act.
(d
)
Fourth, that it was a unilateral waiver applying to the respondent
only, with no reciprocal waiver by the appellant.
(e)
Fifth, that while the donations in clauses 6 and 8 were ostensibly
given as
quid
pro quo
for
the waiver, clause 3 of the contract provided, contrary to
s 5(2)
of
the MPA
[36]
, that such
donations are to be taken into account as part of the accrual in the
respondent’s estate.
The
high court upheld all five grounds. In view of the conclusion I have
reached, I do not intend dealing with all these grounds.
[171]
For the reasons that follow, I am of the view that the waiver clause
per se
offends public policy, more particularly legal policy in the form of
s 7
of the
Divorce Act. At
common law, a person had no right to
maintenance after the dissolution of a marriage. A spouse’s
right to maintenance upon
divorce was introduced by s 10(1) of the
Matrimonial Affairs Act 37 of 1953.
[37]
Section 10(1) of that Act empowered a court to make a maintenance
award against the guilty spouse in favour of the innocent spouse.
In
that regard, the courts have generally held that a court had a
general discretion to award maintenance to an innocent spouse.
[38]
Section 10(1) was replaced by
s 7
of the
Divorce Act which
currently
regulates maintenance for spouses after dissolution of a marriage.
Sections 7(1)
and (2) read as follows:
‘
7
Division of assets and maintenance of parties
(1) A
court granting a decree of divorce may in accordance with a written
agreement between the parties make an order
with regard to the
division of the assets of the parties or the payment of maintenance
by the one party to the other.
(2)
In the absence of an order made in terms of subsection (1) with
regard to the payment of maintenance by the one party
to the other,
the court may, having regard to the existing or prospective means of
each of the parties, their respective earning
capacities, financial
needs and obligations, the age of each of the parties, the duration
of the marriage, the standard of living
of the parties prior to the
divorce, their conduct in so far as it may be relevant to the
break-down of the marriage, an order
in terms of subsection (3) and
any other factor which in the opinion of the court should be taken
into account, make an order which
the court finds just in respect of
the payment of maintenance by the one party to the other for any
period until the death or remarriage
of the party in whose favour the
order is given, whichever event may first occur.’
[172]
There appears to be no decided cases on whether the prenuptial waiver
of the right to maintenance upon dissolution of a marriage
offends
public policy. Professor Hahlo expressed the view that at common law
such a waiver is contrary to public policy.
[39]
The learned author does not, however, cite any authority for the
proposition that among the provisions that ‘would clearly
be
ineffective as being against public policy’ is a clause
‘depriving the courts of their statutory powers on divorce
to
award post-divorce maintenance to one of the spouses
(s 7
of the
Divorce Act)&rsquo
;. More recent works on matrimonial law are largely
silent on this topic. Heaton et al,
[40]
in a discussion about the legality of terms in an antenuptial
contract, list a number of terms which would be contrary to a rule
of
statutory law or contrary to good morals, public policy or the nature
of marriage. The learned authors include as one of these
a term that
there will be no forfeiture of benefits after a divorce and they cite
as authority the above passage from Hahlo. But
they say nothing about
a waiver such as the present one.
[41]
Waiver of the right to maintenance is discussed only in the context
of waiver at the time of divorce. The learned authors also
discuss
waiver (at the time of divorce) of the right to apply for the
rescission, suspension or variation of maintenance orders.
As they
correctly point out, the controversy and conflicting decisions on
this last mentioned subject were finally settled by
Schutte
v Schutte
[42]
in this court. It is helpful to consider this aspect and to contrast
it with the prenuptial waiver of maintenance.
[173] In
Schutte
this court held that the waiver by a spouse of the right to seek
variation of a maintenance order in terms of
s 8(1)
of the
Divorce
Act is
not against public policy. In a comprehensive analysis of the
meaning and purview of the provisions of the old s 10(1) of the
Matrimonial
Affairs Act
[43]
and
s 7(2)
of the
Divorce Act, Van
Heerden JA emphasized that these
provisions found application only upon divorce. The learned judge
contrasted the legal position
here with that in England where s 34(1)
of the Matrimonial Causes Act of 1973 rendered waiver of the right to
maintenance void
as being ‘a provision purporting to restrict
any right to apply to a court for an order containing financial
arrangements’.
In addition, such a waiver was also regarded in
England as being contrary to public policy.
[44]
[174] In my view there is
a stark difference between waiver upon divorce of the right of a
spouse to seek variation of a maintenance
order, as envisaged in s
8(1), and a prenuptial waiver of maintenance. The main, compelling,
difference is that at the time of
divorce both spouses have full
knowledge of their respective financial means and needs. That is not
the case before the parties
have married. It was pointed out in
Schutte
that, unlike in England, here a divorced spouse has no statutory
remedy if no order for maintenance is granted upon divorce.
[45]
Section 7(2) was enacted (and before it, s 10 of the Matrimonial
Affairs Act) to provide a statutory right to a spouse to obtain
a
maintenance order upon divorce. Public (legal) policy therefore
establishes a statutory right to maintenance upon divorce. Such
a
right cannot be waived prenuptially – it would offend legal
policy and hence public policy.
[175] The argument
advanced on behalf of the appellant, that the waiver clause is valid,
impermissibly adopted an overly narrow
approach. It was contended
that the clause did not breach any fundamental right in the Bill of
Rights. That argument is fallacious.
First, the respondent’s
attack in her pleadings was not restricted to a constitutional
challenge to the validity of the clause.
Her contention that the
impugned clause was inimical to constitutional values and infringed
her rights to dignity and equality
was but one of the strings to her
bow. Hers was a wider challenge, namely that the clause was against
public policy. And, second,
while public policy is now rooted in the
Constitution and its underlying values, it may sometimes extend
beyond it.
[176]
In the leading authority on the interrelationship between public
policy, constitutional values and contractual autonomy, the

Constitutional Court held that public policy is ‘to be
determined by reference to the values that underlie our
constitutional
democracy as given expression by the provisions of the
Bill of Rights’.
[46]
But, as Harms DP, correctly with respect, observed in
Bredenkamp
‘[p]ublic policy and the
boni
mores
are now deeply rooted in the Constitution and its underlying values.
This
does not mean that public policy values cannot be found
elsewhere’
[47]
(emphasis added). Secondly,
Barkhuizen
concerned a direct constitutional challenge, namely the
constitutionality of a time limitation clause in a short-term
insurance
policy. As stated, the respondent’s attack on the
impugned clause went far wider, namely that it is against public
policy.
There is a significant difference between these two
challenges. I endorse the observations made by Alkema J in this
regard in
Nyandeni
Local Municipality
:
‘
In
my respectful view, there is a difference in approach to an attack on
the constitutionality of a term of contract on the ground
of it being
inconsistent with the Constitution, on the one hand; and on the other
hand, an attack on the validity or enforceability
of a contract or a
term thereof on the ground of it being in conflict with public
policy. In the latter case the concept of public
policy is informed
by the underlying values and principles of the Constitution, and it
is in this sense only that the constitutional
order is relevant. In a
direct constitutional attack, the constitutional right must first be
identified and secondly such right
must be then found to be limited
by “a law of general application”.’
[48]
[177]
The appellant’s counsel understandably laid much emphasis on
the trite principle that contracts must be honoured. But,
as Harms DP
stated in
Bredenkamp,
pactum sunt servanda
is no holy cow. The determination whether an agreement offends public
policy entails the weighing up of competing values and
pactum
sunt servanda
is but one such value.
[49]
Agreements that are contrary to public policy were not recognized at
common law. As this court stated in
Sasfin
(Pty) Ltd v Beukes
:
[50]
‘
Agreements
which are clearly inimical to the interests of the community,
whether they are contrary to law or morality or run
counter to social
or economic experience, will accordingly, on the grounds of public
policy, not be enforced
’
.
[51]
As
Cameron JA said in
Brisley v Drotsky
, public policy is now
infused with the normative values in the Bill of Rights. Moreover,
contractual autonomy is not the antithesis
of fundamental rights:
‘
[C]ontractual
autonomy is part of freedom. . . [C]ontractual autonomy informs
also
the constitutional value of dignity
.’
[52]
The
traditional view of the sanctity of contract has over the last few
years undergone a profound realignment in view of the Bill
of
Rights.
[53]
[178] Related to this is
the well-established common law principle that an aggrieved person
has the right to seek the assistance
of a court of law and that a
term in a contract which deprives a party of the right to approach a
court for redress is contrary
to public policy.
[54]
Commonwealth jurisdictions appear to favour the approach that
prenuptial agreements as well as agreements concluded
stante
matrimonio
and post-nuptially cannot oust a court’s statutory power
through a waiver of maintenance.
[55]
For present purposes, however, it is in my view sufficient to find
that the impugned clause offends public policy as it is inimical
to
the legal policy regarding maintenance, encapsulated in
s 7
of the
Divorce Act. Such
a finding accords with well-established sound legal
precedent developed over decades in this country. No reasons are
suggested
for departing from this approach in favour of the novel
‘nuanced and enlightened approach’ of some Commonwealth
jurisdictions,
as espoused by Rogers AJA in his separate concurrence.
The latter approach may commend itself in respect of postnuptial
agreements,
but I express no firm view on it.
[179] In
Claassens
v Claassens
[56]
,
Didcott
J was confronted with the question whether a waiver of the right to
apply for an increase in maintenance, contained in a
divorce
settlement, offends public policy. The learned Judge held that it did
not. With reference to
Schierhout
,
Didcott J pointed out that ‘public policy frowns on the
transaction only when the particular remedy that is waived is one
it
wants retained.
What
offends public policy outside the Schierhout rule, in other words, is
not the exclusion of the court’s jurisdiction per
se, but its
exclusion from matters which public policy insists on keeping
justiciable’
[57]
(emphasis added).This is the approach which I think should be
followed in this case.
[180] The importance of
marriage as a social institution with profound significance, not only
to the spouses concerned, but also
to society at large, was
recognized by the Constitutional Court in
Dawood
.
[58]
The Court observed that ‘[t]he celebration of a marriage gives
rise to moral and legal obligations, particularly the reciprocal
duty
of support placed upon spouses . . . These legal obligations perform
an important social function . . . Importantly, the community
of life
establishes a reciprocal and enforceable duty of financial support
between the spouses . . .’
[59]
[181] In
EH
v SH
,
this court stated that
s 7
of the
Divorce Act was
enacted to, amongst
others, alleviate the potential iniquitous situation where a wife had
spent her active economic years caring
for the children and running
the joint household.
[60]
There
can be little doubt that the institution of marriage and the
traditional role of the ‘stay at home’ wife have
changed
significantly in recent times, but the impact of prenuptially waiving
one’s right to maintenance upon dissolution
of the marriage
must not be underestimated. During argument much was made of the fact
that the respondent had waived her right
to maintenance on the basis
that she would receive the donations outlined in the contract. In my
view that consideration does not
save the impugned clause from
invalidity. A spouse would have no idea prior to marriage how long
the marriage would last, what
her or his needs and means may be at
the time of dissolution of the marriage and, generally, what the
future holds. In that regard,
she or he is in a markedly different
position than a spouse who enters into such an agreement
stante
matrimonio
.
Even a newlywed spouse would have a much better understanding of what
the future holds and of the parties’ respective means
and
needs, both present and in future. Before the marriage, a prospective
spouse would have no idea whether the donations would,
absent any
maintenance, be adequate to meet her or his future needs upon
divorce.
[182] In conclusion: the
waiver clause is contrary to legal policy
(s 7
of the
Divorce Act)
and
therefore offends public policy.
____________________
S
A Majiedt
Judge
of Appeal
Rogers
AJA:
[183]
I agree with Majiedt JA that the maintenance waiver is not
enforceable in the present case but my reasons differ from his.
He
finds that a prenuptial waiver of maintenance is by its nature
contrary to public policy. This entails that the waiver is void
ab
initio (
Sasfin (Pty) Ltd v Beukes
1989
(1) SA 1
(A) at 18G-I). The public policy on which he bases his
conclusion is the policy reflected in
ss 7(1)
and (2) of the
Divorce Act. I
agree with his assessment of the policy. However,
before one concludes that a prenuptial waiver is contrary to public
policy and
void, it is necessary to interpret the legislation to
determine whether it does not already accommodate the policy
concerns. If
it does, there is no need to brand a prenuptial waiver
as per se contrary to public policy. To do so would be contrary to
the legislative
scheme. My conclusion is that the legislation does
indeed provide a mechanism to address my colleague’s policy
concerns,
namely by giving the divorce court an overriding discretion
to disregard the waiver.
[184]
The provisions of
ss 7(1)
and (2) have been quoted in my
colleague’s separate judgment. The appellant’s counsel
argued that the ‘written
agreement’ contemplated in
s 7(1)
could include a prenuptial agreement and that, whenever
there is a written agreement regulating maintenance, the court’s
power to make an order in terms of
s 7(2)
is excluded. The
respondent’s counsel submitted, by contrast, that the ‘written
agreement’ in question is confined
to an agreement concluded at
the time of divorce.
[185]
The expression ‘written agreement’ in
s 7(1)
is not
limited in point of time, so the respondent’s argument would
require one to read words into the subsection. Furthermore,
if one
regards only prenuptial contracts as falling outside the ambit of
s 7(1)
, a maintenance waiver in an agreement concluded after the
commencement of the marriage would be valid even though it was
executed
before the breakdown of the marriage or a long time before
the divorce. If further limitations must be read into the section in

respect of postnuptial contracts, it is not clear to me where the
dividing line would be.
[186]
I thus do not think that the limitation advanced by the respondent is
justified. This, however, does not lead to the result
for which the
appellant’s counsel contended. In terms of
s 7(2)
, the
court’s power to make an order under that subsection exists in
any case where an order has not been made in terms of
s 7(1).
Section 7(1)
provides that a court ‘may’, not ‘must’,
make an order in accordance with a written agreement of the kind

contemplated. If a court considers that there is good reason not to
give effect to the written agreement regarding maintenance,
it may
refrain from doing so and can then proceed to make an order in terms
of
s 7(2).
[187]
Read together,
ss 7(1)
and (2) do not prohibit an agreement by
which a spouse waives her right to maintenance in return for gifts
but they do explicitly
accord to the court a discretion either to
give effect to the agreement in terms of
s 7(1)
or to award
maintenance in terms of
s 7(2).
The very circumstance that the
court has a statutory power to override the agreement shows that an
agreement cannot override the
statutory power. This flows inevitably
from a proper interpretation of the statutory provisions though it is
supported by considerations
of policy. As was said in
Ritch
and Bhyat v Union Government (Minister of Justice)
1912
AD 719
, to allow such a waiver would be ‘to defeat the
provisions of an enactment intended on general and public grounds to
be peremptory
and binding on all concerned’ (at 735). However,
the fact that the overriding statutory power cannot be ousted by
contract
does not lead to the conclusion that the parties’
endeavour at the contractual ordering of maintenance is contrary to
public
policy.
[188]
In the modern era there is much to be said for the view that our law
should encourage the private ordering of the financial
consequences
of divorce and follow the approach which currently prevails in
England, Canada and elsewhere, with such adaptations
as may be
appropriate to our country’s circumstances. The leading
decision in England is
Radmacher v Granatino
[2010] UKSC 42
,
in which, unusually, the panel comprised nine justices. By its
decision, the Supreme Court swept away the distinctions previously

drawn in England between prenuptial and postnuptial agreements,
holding that an agreement of either kind is a factor to be taken
into
account in determining whether the court should exercise its
overriding power to award maintenance. In the leading judgment

(carrying the support of eight justices) the court said this:
‘
The
court should accord respect to the decision of a married couple as to
the manner in which their financial affairs should be
regulated. It
would be paternalistic and patronising to override their agreement
simply on the basis that the court knows best.’
(Para
78)
The
court recognised, however, that the scope for unfairness in the
enforcement of a nuptial agreement was greater where the agreement

was concluded prenuptially than where it was concluded after the
marriage had broken down:
‘
Where
the ante-nuptial agreement attempts to address the contingencies,
unknown and often unforeseen, of the couple's future relationship

there is more scope for what happens to them over the years to make
it unfair to hold them to their agreement. The circumstances
of the
parties often change over time in ways or to an extent which either
cannot be or simply was not envisaged. The longer the
marriage has
lasted, the more likely it is that this will be the case’.
(Para 80)
But,
as the court had earlier remarked, there is no fundamental
distinction between the case of a prenuptial and a postnuptial
contracts:
‘
Nuptial
agreements made just after the wedding are not unknown and likely to
become more common if the law distinguishes them from
ante-nuptial
agreements.’
(Para
57)
[189]
Even in the earlier judgment of the House of Lords in
Hyman
v Hyman
[1929] AC
601
, based to some extent on outmoded views of marriage and divorce,
the majority did not hold that a marriage agreement involving a

waiver of maintenance was contrary to public policy, only that the
statutory power to order maintenance could not be overridden.
The
majority acknowledged that the agreement between the parties might be
relevant to the exercise of the statutory power.
[190]
In
Versteegh v
Versteegh
[2018]
EWCA Civ 1050
King LJ said that
Radmacher
represented a ‘sea change’ in the English law’s
approach to pre-marital agreements. Not only are such contracts
no
longer contrary to public policy: ‘Where a party has a full
appreciation of its implications, the court should now give
effect to
such an agreement, unless it would be unfair to do so’ (para
44). In
BN v MA
[2013] EWHC 4250
(Fam), Mostyn J stressed the importance of the principle of personal
autonomy, a consideration he thought of particular importance
where
the parties are ‘sophisticated, highly intelligent and have the
benefit of the best legal advice that money can buy’.
Where, in
those circumstances, they have ‘thrashed out’ an
agreement, ‘heavy respect’ should be accorded
to the
agreement, particularly where it seeks to protect premarital property
(para 28). Few could quibble, I would have thought,
with the
enforcement of the antenuptial contract in
H
v H
[2016] EWFC
B81, where the marriage lasted only twelve weeks.
[191]
In Canada the approach was initially laid down in
Pelech v Pelech
[1987] 1 SCR 801
and is now to be found, on account of
intervening legislative changes, in
Miglin v Miglin
2003 SCC 24
;
[2003] SCR
303.
The essence of the
Pelech
approach was described in
Miglin
as being
‘
that
a court will not interfere with a pre-existing agreement that
attempts fully and finally to settle the matter of spousal support
as
between the parties unless the applicant can establish that there has
been a radical and unforeseen change in circumstances
that is
causally connected to the marriage.’
[192]
In
Miglin
the
statutory provision under consideration was s 15.2(4)(c) of the
Divorce Act 1985, which provided that, in the making of
an award of
spousal maintenance, the court should take into account, among other
matters, ‘any agreement or arrangement relating
to support of
either spouse’. The majority’s approach is reflected in
the following passage at 333-334:
‘
[T]he
language and purpose of the 1985 Act militate in favour of a
contextual assessment of all the circumstances. This includes
the
content of the agreement, in order to determine the proper weight it
should be accorded in a s.15.2 application. In exercising
their
discretion, trial judges must balance Parliament’s objective of
equitable sharing of the consequences of marriage and
its breakdown
with the parties’ freedom to arrange their affairs as they see
fit. Accordingly, a court should be loathe to
interfere with a
pre-existing agreement unless it is convinced that the agreement does
not comply substantially with the overall
objectives of the
Divorce
Act
.
This is particularly so when the pre-existing spousal support
agreement is part of a comprehensive settlement of all issues related

to the termination of the marriage.’
[193]
The court proceeded to formulate a two-stage process in assessing
whether to give effect to the pre-existing spousal support
agreement.
At stage 1 the court considers the circumstances prevailing when the
agreement was negotiated to determine whether there
is any reason to
discount it (a power imbalance, oppression, other conduct falling
short of unconscionability, the duration of
negotiations, the
presence or absence of professional advice, the extent to which the
agreement at the time of its conclusion was
in substantial compliance
with the objectives of the Divorce Act). At stage 2 the court
assesses the extent to which the agreement
still reflects the
original intention of the parties and the extent to which it is still
in compliance with the objectives of the
Divorce Act. A certain
degree of change is always foreseeable by spouses when they conclude
an agreement, leading the majority
to say the following (at 353):
‘
Although
we recognize the unique nature of separation agreements and their
differences from commercial contracts, they are contracts

nonetheless. Parties must take responsibility for the contract they
execute as well as for their own lives. It is only where the
current
circumstances represent a significant departure from the range of
reasonable outcomes anticipated by the parties, in a
manner that puts
them at odds with the objectives of the Act, that the court may be
persuaded to give the agreement little weight.’
[194]
Although
Pelech
and
Miglin
concerned
postnuptial agreements, the same two-stage approach is applied by
Canadian courts to all pre-existing agreement, whether
prenuptial or
postnuptial. Prenuptial waivers of spousal maintenance appear to be
quite common in Canada. Some of the cases where
Miglin
was
applied to prenuptial waivers are discussed by Prof Carol Rogerson in
her article
‘
Spousal
Support Agreements and the Legacy of Miglin’ 31
Canadian
Family Law Quarterly
13-70.
[61]
[195]
Since section 7(1) of our Divorce Act refers not only to agreements
regarding maintenance but also agreements regarding division
of
property, it is not out of place to referred to a more recent
judgment of the Supreme Court of Canada in
Hartshorne
v Hartshorne
[2004]
1 SCR 550
,
2004 SCC 22
(CanLII)
where the
two-stage approach in
Miglin
approach
was applied to a prenuptial property division agreement governed by
the Family Relations Agreement of British Columbia.
In para 39
Bastarache J, who delivered
the majority judgment, said the following:
‘
This
Court has not established, and in my opinion should not establish, a
“hard and fast” rule regarding the deference
to be
afforded to marriage agreements as compared to separation
agreements. In some cases, marriage agreements ought to be

accorded a greater degree of deference than separation
agreements. Marriage agreements define the parties’
expectations
from the outset, usually before any rights are vested
and before any entitlement arises. Often, perhaps most often, a
desire
to protect pre acquired assets or an anticipated
inheritance for children of a previous marriage will be the impetus
for such
an agreement. Separation agreements, by contrast,
purport to deal with existing or vested rights and obligations, with
the
aggrieved party claiming he or she had given up something to
which he or she was already entitled with an unfair result. In

other cases, however, marriage agreements may be accorded less
deference than separation agreements. The reason for this is

that marriage agreements are anticipatory and may not fairly take
into account the financial means, needs or other circumstances

of the parties at the time of marriage breakdown.’
[196]
In Australia the enforceability of prenuptial agreements regulating,
inter alia, post-divorce spousal support is now regulated
by Part
VIIIA of the Family Law Act 1975, inserted into the principal Act in
2000. (For a discussion of these provisions, see inter
alia
Hoult
v Hoult
[2013]
Fam CAFC. 109.) Prior to such statutory regulation, the Australian
courts had arrived at a position not unlike that espoused
in
Radmacher
:
the court would have regard to, but was not bound to implement, a
prenuptial contract dealing with the division of property or
the
payment of post-divorce spousal support.
[62]
)
In New Zealand, s 128 of the Family Proceedings Act 1980 appears
to perform a similar function to the Australian legislation
(cf
Ward
v Ward
[2009]
NZSC 125
;
[2010] 2 NZLR 31).
In these two countries, as far as I can
ascertain, prenuptial agreements regarding maintenance are not
invalid but there are safeguards
against unfairness when it comes to
enforcement at the time of divorce.
[197]
Sections 7(1) and (2) of our Act lend themselves admirably to an
interpretation allowing us to follow the nuanced and enlightened

approach prevailing in England, Canada and elsewhere– to
operate with the statutory scalpel rather than the common law
cutlass.
A South African court, considering a claim for maintenance
in the face of a prenuptial or postnuptial agreement containing a
maintenance
waiver (or other maintenance provisions inconsistent with
a claim advanced by a spouse at the divorce hearing), should consider

a range of factors in deciding whether to award maintenance or (as
was done in
Radmacher
and
in several Canadian cases) to hold the parties to the contract. The
sorts of factors to be taken into account are likely to
include most
of those mentioned in the leading English and Canadian decisions.
This interpretation not only accords with the plain
language of the
sections but seems to me to give better effect to constitutional
values – it eschews paternalistic thinking
and promotes party
autonomy while at the same time giving the court a generous
jurisdiction to prevent unfair outcomes.
[198]
In essence, the competing considerations which are engaged in
assessing prenuptial contracts relating to post-divorce division
of
property and spousal support are autonomy and protection. Both are
relevant considerations. My colleague’s approach promotes

protection to the complete exclusion of autonomy. The appellant’s
fallacious argument promotes autonomy to the complete exclusion
of
protection. The approach I advocate allows both considerations to
play a role in a careful, fact-specific enquiry. My approach
does not
compromise any of the policy considerations which concern my
colleague. And it keeps us in step with leading Commonwealth

jurisdictions.
[199]
In the present case it is unnecessary to delineate with greater
precision the test to be applied by a South African court
when
deciding whether to give effect to a prenuptial contract of the kind
contemplated in s 7(1). Whatever approach were adopted,
the
result in the present case would be that the provisions of the
antenuptial contract relating to maintenance should be disregarded

and that the matter should be assessed afresh in the light of the
considerations listed in s 7(2). The main factor which impels
me
to this conclusion is the lengthy period that has elapsed between the
conclusion of the antenuptial contract and the divorce
(more than 25
years), with all the unforeseen changes in circumstances which have
occurred in that time. Other relevant factors
would be that the
respondent was placed under some pressure to accept the terms of the
antenuptial contract, that she did not have
independent legal advice
from a South African lawyer and that her emotional condition was
compromised by the stress of her recent
law examinations and the
impending birth of her son.
[200]
This conclusion does not imply criticism of the appellant. He was
under pressures of his own, in particular his desire to
be married to
the mother of his child, his concern that she might marry another man
if things were not promptly arranged and his
concern to avoid a
repeat of the costly divorce which had terminated his first marriage.
If, as both prospective spouses foresaw
as a possibility, their
marriage was short-lived, the antenuptial contract might – from
the perspective of maintenance –
have been quite generous to
the respondent. She was young, well-qualified and would probably not
have succeeded in a claim for
any or substantial maintenance whereas
she would have got to keep the donations given as quid pro quo for
the waiver.
[201]
Certain of the high court’s findings in connection with the
conclusion of the antenuptial contract were not warranted
but I find
it unnecessary to deal with them at length. I simply record that the
high court’s description of the respondent
as ‘gullible
and naive’ was a demeaning description of an intelligent woman
in her mid-twenties. Also unjustified was
the high court’s
statement, more than once in its judgment, that the appellant
‘planned this divorce even before he
concluded this marriage’.
The appellant did not marry the respondent with the intention of
divorcing her. At no stage during
the parties’ sometimes
troubled relationship was it the respondent who wanted a divorce. The
antenuptial contract contained
provisions catering for the
possibility of a dissolution of the marriage. That is not unusual or
wrong.
___________________
O L Rogers
Acting Judge of Appeal
APPEARANCES
For
Appellant
M
Konstantinides SC (with him F Gordon-Turner)
Instructed by:
Petra
Visser Attorneys, Johannesburg
McIntyre
van der Post Inc, Bloemfontein
For
Respondent
J
G Dickerson SC (with him J S Anderson)
Instructed
by:
Miller
du Toit Cloete Inc, Cape Town
Phatshoane
Henney Attorneys, Bloemfontein
[1]
R v Dhlumayo & another
1948 (2)
SA
677
(A)
at 705 –
706
;
Protea
Assurance Co Ltd v
C
asey
1970 (2) SA 643
(A) at 648E;
Matlou
v Makhubed
u
1978 (
1) SA 946
(A) at
950 A-E.
[2]
Brookstein v Brookstein
[2016] ZASCA 40
;
2016 (5) SA 210
(SCA) para 19.
[3]
Harms
Civil Procedure in
the Superior Courts,
B –
246 (Issue 53).
[4]
Makate v Vodacom (Pty) Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC) para 38
[5]
Powell & Wife v
Streatham Nursing Home
[1935] 243 AC 265.
[6]
Section 4 of the MPA;
Brookstein
v Brookstein,
fn 2, paras
16 and 19.
[7]
For present purposes the exclusions outlined in the proviso bear no
relevance. The provisions of s 5(2) of the MPA have been
cited in
footnote 1 above.
[8]
This stipulation accords with s 5(1) of the MPA.
[9]
These exclusions originate from s 4(1)(b)(ii) of the MPA.
[10]
MB v DB
[2013] ZAKZDHC 33;
2013 (6) SA 86
(KZD) para 39.
[11]
Sections 23 and 24 of the Matrimonial Causes Act of 1973, which have
not been affected by the subsequent enactment of the Matrimonial
and
Family Proceedings Act of 1984 and the Family Law Act of 1996. The
applicable rules are rules 73 – 76 of the Matrimonial
Causes
Rules of 1977.
[12]
Livesey
(formerly Jenkins) v Jenkins
[1984] UKHL 3
;
[1985] 1 All ER 106
(HL).
[13]
Livesey v Jenkins
above,
at 115.
[14]
Prest
v
Petrodel
Resources
Limited & others
[2013] UKSC 34
para 4.
[15]
NG v SG
[2011]
EWHC 3270
(Fam).
[16]
B v B
[2014] ZASCA 137
; 25 September 2014 paras 39 and 40.
[17]
NG v SG,
fn 15.
[18]
AM v JM
(3954/10); 2011 JDR 0091 (WCC) para 43.
[19]
MB v DB
,
fn 10.
[20]
B v B
,
fn 16, para 33.
[21]
Eagle Star Insurance Co Ltd
v Willey
1956 (1) SA 330
(A) at 334A – 335F;
Van
Zyl NO v Kiln Non-Marine Syndicate No 510 of Lloyds of London
[2002] ZASCA 120
;
[2002] 4 All SA 355
(SCA) para 7.
[22]
Minister of Law and Order v
Monti
[1994] ZASCA 139
;
1995(1) SA 35 (A) at 40C – D.
[23]
AA
Onderlinge
Assuransie-Assosiasie Bpk
v De Beer
1982
(2) SA 603
(A) at 614G.
[24]
Cooper & another NNO v
Merchant Trade Finance Ltd
2000 (3) SA 1009
(SCA) at 1027-8.
[25]
NG v SG
,
fn 15, para 16.
[26]
M v M
(26868/14) [2016] ZAGPJHC 387 (10 August 2016).
[27]
Ibid, para 3.
[28]
De Kock v Jacobson and
another
1999 (4) SA 346
(W) at 350G;
Mcintosh v
Mcintosh
[2011]
ZAFSHC 116
paras 19-22;
Elesang
v PPC Lime Limited and others
2007
(6) SA 328
(NC) para 20;
Kirkland
v Kirkland
2006 (6) SA 144
(C) paras 82 and 83;
Government
Employees Pension Fund v Naidoo
2006 (6) SA 304 (SCA).
[29]
Published
in
Government
Gazette
No 32005.
[30]
Yarona Healthcare Network
(Pty) Ltd v Medshield Medical Scheme
[2017] ZASCA 116
;
2018 (1) SA 513
(SCA) para 48.
[31]
African Diamond Exporters
(Pty) Ltd v Barclays Bank International Ltd
1978 (3) SA 699
(A) at 713.
[32]
Kudu Granite Operations
(Pty) Ltd v Caterna Ltd
2003 (5) SA 193
(SCA) para 28.
[33]
R466 806
(Caledon Street Guest House loan account) + R858 952 (net
recoverable component of Mont du Toit loan account).
The supposed
loan account of R1.55 million in Blouvlei must be left out of
account for reasons previously explained.
[34]
R1 245 028
(loan claim against Gamsberg) – R269 004 (loan owed to
Schoongezicht.
[35]
Ward v Sulzer
1973 (3) SA 701
(A) at 707A.
[36]
Section 5(2) of the MPA reads: ‘In the determination of the
accrual of the estate of a spouse a donation between spouses,
other
than a donation
mortis
causa,
is not taken into
account either as part of the estate of the donor or as part of the
estate of the donee’.
[37]
See:
Strauss
v Strauss
1974
(3) SA 79
(A) at 93 H.
[38]
Compare:
Lincesso
v Lincesso
1966
(1) SA 747
(W);
Portinho
v Portinho
1981
(2) SA 595 (T).
[39]
H R Hahlo,
The
South African Law of Husband and Wife
,
5 ed (1985) at 259.
[40]
Heaton et al
The Law of South Africa (
2
ed) vol 16.
[41]
Ibid para
116.
[42]
Schutte
v Schutte
1986
(1) SA 872
(A) at 883-884.
[43]
There had
been conflicting decisions on whether under s 10(1) a waiver of the
right to seek an increase of an amount agreed for
maintenance in a
consent paper was against public policy.
[44]
Hyman v
Hyman
[1929]
AC 601
; All ER 245;
Jessel
v Jessel
[1979] 3 All ER 645
at 649.
[45]
Schutte
v Schutte
,
fn 48, at 884A.
[46]
Barkhuizen
v Napier
[2007]
ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) para 29.
[47]
Bredenkamp
v Standard Bank of SA Ltd
[2010]
ZASCA 75
;
2010 (4) SA 468
(SCA);
2010 (9) BCLR 892
(SCA);
[2010] 4
All SA 113
(SCA) para 39; see also
Nyandeni
Local Municipality v MEC for Local Government and Traditional
Affairs
2010 (4) SA 261
(ECM) para 79.
[48]
Ibid para
72.
[49]
Bredenkamp v Standard Bank
paras 37-38.
[50]
Sasfin (Pty) Ltd v Beukes
1989 (1) SA 1 (A).
[51]
Sasfin (Pty) Ltd v Beukes
at 8C – D.
[52]
Brisley v Drotsky
2002
(4) SA 1
(SCA) para 94; see also:
Barkhuizen
v Napier
para 30.
[53]
See, for example, the discussion in Woolman et al
Constitutional
Law of South Africa
2 ed,
at 31 – 37 and 31 – 130.
[54]
Schierhout v Minister of
Justice
1925 AD 417
at
424.
[55]
See, inter alia, in the United Kingdom:
Hyman
v Hyman
[1929] AC 601
but
compare recent developments in
Radmacher
v Granatino
[2010] UKSCC
42 at para 52; Canada:
Miglin
v Miglin
2003 SCC 24
;
[2003] 1 SCR 303
;
Australia:
Brooks v Burns
Philp Trustee Co Ltd
[1969] HCA 4.
[56]
Claassens v Claassens
1981 (1) SA 360 (N).
[57]
Claassens v Claassens
at 366G – H.
[58]
Dawood &
another v Minister of Home Affairs &
others;
Shalabi & another
v
Minister of Home Affairs & others; Thomas & another v
Minister of Home Affairs & others
[2000]
ZACC 8; 2000 (3) SA 936 (CC).
[59]
Ibid paras 31 and 33.
[60]
EH v SH
[2012]
ZASCA 19
;
2012 (4) SA 164
(SCA) para 12.
[61]
See
Loy
v Loy
[2007] OJ No 4274 and
Frazer
v van
Rootselaar
2006 BCCA
198
(CanLII) (where
Miglin
challenges
failed – discussed by Rogerson at p 52); and
Varney
v Varney
2008 NBQB 389
(CanLII),
Jenkins
v Jenkins
2008 MBQB 271
(CanLII) and
M(L)
v M(I)
[2007] NJ No 379, 2007 NLUFC 29 (where
Miglin
challenges
succeeded – discussed by Rogerson at p 60). See also
Charles v Charles
1991
BCSC 551
(CanLII);
Small v
Small
1993 BCSC 1709
(CanLII);
Segal v Qu
2001
ONSC 28201 (CanLII).
[62]
Belinda Fehlberg
and Bruce Smyth ‘Pre-Nuptial Agreements for Australia: Why
Not? (2000) 14
Australian
Journal of Family Law
80 at 81.

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