BACKGROUND AND SUMMARY
This matter is an appeal against the order granted by Opperman AJ in the North Gauteng High Court, on 30 November 2016, in terms of which a decree of divorce was granted, and an order made, concerning the proprietary claims of the respondent.
The aforesaid order held that the commencement value of the Defendant’s (Appellant’s) estate for purposes of calculating the accrual is nil”. Further, “the Defendant’s claim for rectification of the antenuptial contract concluded on 26 May 2007 is dismissed.
The parties were married to one another on or about 2 July 2007, out of community of property, with the inclusion of the accrual system. The parties entered into an antenuptial contract on or about 26 May 2007, which set out that the net commencement value of the respective parties’ estates was R0 (nil). The Appellant however averred at the dissolution of the marriage, that the net value of his estate was no less than R 2 768 198,00.
On Appeal, the Appellant contended that the central argument on appeal, was whether a party is entitled to present evidence regarding the net-commencement value of an estate, regardless of the fact that there already exists an agreement, pertaining to the net commencement values of the estates of the spouses in an antenuptial contract. If the answer to the aforementioned is in the affirmative, then the question remains whether a party may present evidence of a different net value of the estate at commencement of the marriage, as opposed to the amount reflected in the ante-nuptial contract.
The court was required to consider the Matrimonial Property Act, 88 of 1984 as amended (the “Act”). Further, the court considered whether the Appellant was successful in proving that the net commencement value of his estate was in fact R 2 768 198,00 and not nil as reflected in the ante-nuptial contract.
In this regard, the court had to determine what amount the Respondent would be entitled to, if the question of forfeiture was not upheld in favor of the Appellant. The court considered section 6 of the aforementioned Act, which states, inter alia “ Where a party to an intended marriage does not for purposes of proof of the net value of his estate at the commencement of his marriage declare that value in the ante-nuptial contract, he may for such purposes declare that value before the marriage is entered into or within six months thereafter in a statement, which shall be signed by the other party, and cause the statement, to be attested by a notary…”
Further to the above, the court referred to the provisions of Chapter I of the Act, under General Provisions, which provides the following under section 21(2)(c) “for the purpose of proof of the net value of the respective estates of the spouses on the date on which the provisions of Chapter I so apply, they may declare that value either in the notarial contract concerned or (my italics) in a statement as contemplated in section 6, and in the last mentioned case the provisions of section 6 apply mutatis mutandis in respect of that statement.”
The registration of ante-nuptial contracts is regulated by Section 86 of the Deeds Registries Act No 47 of 1937 (“DRA”). Any post nuptial changes to the marital regime must be done in terms of section 21 of the Act, subject to registration thereof. The court was tasked with answering whether (i) the Appellant may lawfully amend or vary the commencement value of his estate (which was stated as nil), and if allowed (ii) how same should be done, (iii) whether he can successfully persuade the court to invoke the provisions of section 9 of the MPA and section 9 of the DRA.
The court then determined that the provisions surrounding the rectification of an ante-nuptial contract, which was discussed in the case of PV v EV (843/2018), wherein it was held that “rectification of a written agreement is a remedy available in instances where the agreement, through a common mistake, does not reflect the true intention of the contracting parties or where it erroneously does not record the agreement between the parties”. The court thus considered whether the aforementioned could be applied to the facts of this case, and whether or not it can be said that there was any common mistake between the parties. In this matter, there were two conflicting versions as to the signing of the antenuptial contract.
The court further considered the case of Stellenbosch Farmers Winery Group Ltd v Martell et Cie and Others 2003 (1) SA 11 SCA, whereafter Hollander AJ accepted the version of the independent attorney Wentzel, who stated that the she had prepared the ante-nuptial contract on the instruction of both parties. When the parties attended at her office to sign same, she had explained the contents thereof. The Appellant however held that he signed the ante-nuptial contract without reading it, in the absence of Wentzel or the Respondent.
The court held further that it would be difficult to believe that the Appellant had signed the contract without reading it at all. Due to the fact that there was no common mistake between the parties, rectification is not a competent appeal. Furthermore, there is no evidence which exists that the parties had a common intention different from the words used in the ante-nuptial contract. It was stated by Hollander AJ, that “to allow rectification at the request of the appellant will amount to overthrowing the basis on which contracts rest at law”. For this reason, rectification was not competent in this matter.
The next question to be asked by the court, was whether the Appellant can rely on section 6 of the Act to present evidence of the net commencement value of his estate, notwithstanding the existing antenuptial contract pertaining to the stated value, to prove a different commencement net value of his estate when calculating accrual. The court evaluated the differing judgments with regards to section 6 of the Act.
The court considered the case of Oliver v Oliver 1998, wherein the court held that where parties agreed and contracted that the net value of their respective estates would be nil, the written document was “conclusive proof” of the terms of their agreement and can only be attacked on the grounds of “misrepresentation, duress, undue influence etc”. This approach was adopted by the court a quo.
The court held, that with regard to whether section 6 is capable of the interpretation sought, Hollander AJ was of the view that it is not correct, since section 20 clearly distinguishes two instances, being (i) where the parties declared that value in the notarial contract, or (ii) where the parties declared the value in a statement as provided for I section 6. It is thus clear that section 6 is only applicable where the parties did not declare a commencement value and later declare such value.
The Appellant is bound to the agreed registered commencement value in the ante-nuptial contract. The court further held that the Appellant had not made out a case with regards to any forfeiture claim against the Respondent.
The court dismissed the appeal with costs.
This case considered whether a party is entitled to present evidence regarding the net-commencement value of an estate, regardless of the fact that there already exists an agreement, pertaining to the net commencement values of the estates of the spouses in an antenuptial contract. If the answer to the aforementioned is in the affirmative, then the question remains whether a party may present evidence of a different net value of the estate at commencement of the marriage, as opposed to the amount reflected in the ante-nuptial contract.
Written by Ashleigh Butler Checked by Jennifer Stole