BF v RF
| Jurisdiction | South Africa |
| Citation | 2019 (4) SA 145 (GJ) |
BF v RF
2019 (4) SA 145 (GJ)
2019 (4) SA p145
|
Citation |
2019 (4) SA 145 (GJ) |
|
Case No |
2017/5018A |
|
Court |
Gauteng Local Division, Johannesburg |
|
Judge |
Matojane J, Sutherland J and Siwendu J |
|
Heard |
July 2, 2018 |
|
Judgment |
July 2, 2018 |
|
Counsel |
G Farber SC (with L Segal) for the appellant. |
Flynote : Sleutelwoorde
Marriage — Divorce — Proprietary rights — Accrual system — Whether Act permitting B exclusion from accrual of asset not possessed at commencement of marriage, and not later acquired by virtue of an asset possessed at commencement — Matrimonial Property Act 88 of 1984, s 4(1)(b)(ii).
Headnote : Kopnota
Husband, respondent, and wife, appellant, were married out of community of C property but with accrual. They were presently in divorce proceedings, and disputed a clause of their antenuptial contract excluding, inter alia, certain shares from the husband's estate, for purposes of the accrual calculation (see [1] – [2]).
Factually, on the commencement of the marriage, the husband had possessed a D certain number of the shares (see [3]). These, it was not disputed, were excluded from the calculation (see [3]). However, during the marriage the husband had acquired further shares in the company concerned, and the issue was whether these were excluded from his estate for accrual purposes (see [4]). These additional shares had not been acquired through the fruits, or realisation, of any of the shares possessed at the commencement of the marriage (see [25]). E
A single judge, who was presented with the issue in a stated case, held that the clause excluded the shares acquired after commencement of the marriage (see [37]).
Here, the wife appealed to the full bench.
It held (Sutherland J and Matojane J concurring, Siwendu J differing), that F properly interpreted, the clause did not exclude the later-acquired shares from the husband's estate (see [11] – [12]).
Moreover, the Matrimonial Property Act 88 of 1984 only permitted exclusion, in an antenuptial contract, of assets actually possessed at the commencement of the marriage (see [22] and [26] – [27]). These, and assets acquired later, by virtue of them, could alone be excluded (see [25]). Assets not already possessed on commencement, and which would not derive from assets held G on commencement, could not be excluded (see [20] and [23] – [24]).
Appeal upheld, and it declared, inter alia, that only the shares possessed at the commencement of the marriage were excluded from the accrual calculation (see [31] and [33]).
Cases cited
Bane and Others v D'Ambrosi 2010 (2) SA 539 (SCA) ([2009] ZASCA 98): H referred to
Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) ([2014] 1 All SA 517; [2013] ZASCA 176): dictum in para [12] applied
Feedpro Animal Nutrition (Pty) Ltd v Nienaber NO and Another [2016] ZASCA 32: I applied
G4S Cash Solutions (SA) (Pty) Ltd v Zandspruit Cash & Carry (Pty) Ltd and Another 2017 (2) SA 24 (SCA): dictum in para [13] applied
Geldenhuys and Neethling v Beuthin 1918 AD 426: referred to
M v M [2010] ZAWCHC 226: referred to
MB v DB 2013 (6) SA 86 (KZD): dictum at 95H applied J
2019 (4) SA p146
Minister of Police v Mboweni and Another A 2014 (6) SA 256 (SCA) ([2014] 4 All SA 452; [2014] ZASCA 107): applied
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): applied
Novartis SA (Pty) Ltd and Another v Maphil Trading (Pty) Ltd 2016 (1) SA 518 (SCA) ([2015] 4 All SA 417; [2015] ZASCA 111): referred to
REM v VM B 2017 (3) SA 371 (SCA): referred to
S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793; [1995] ZACC 4): dictum in para [113] applied
ST v CT 2018 (5) SA 479 (SCA): referred to
Thoroughbred Breeders' Association v Price Waterhouse 2001 (4) SA 551 (SCA) ([2001] 4 All SA 161; [2001] ZASCA 82): referred to
W v H C 2017 (1) SA 196 (WCC): referred to.
Legislation cited
The Matrimonial Property Act 88 of 1984, s 4(1)(b)(ii): see Juta's Statutes of South Africa 2017/18 vol 7 at 4-172.
Case Information
G Farber SC D (with L Segal) for the appellant.
SA Nathan SC for the respondent.
An appeal against a decision of a single judge of the Gauteng Local Division. E
Order
The appeal is upheld with costs, including the costs of two counsel.
The difference in the issued share capital now owned by the plaintiff in Rand Building Hydraulics (Pty) Ltd and National Reinvestments (Pty) Ltd and that which was owned by him at F the date of the conclusion of the marriage; and
the difference between the credit balances now due to the plaintiff under the loan accounts in Rand Building Hydraulics (Pty) Ltd and National Reinvestments (Pty) Ltd and the credit balances which were due to him thereunder at the time of the G date of the marriage,
are subject to accrual sharing, and the value to be ascribed to these differences is to be taken into account in the reckoning in determining the defendant's entitlement in terms of ch 1 of Act 88 of 1984.
Judgment
Sutherland J (Matojane J concurring): H
Introduction
[1] The controversy before the court is about the meaning of clause 4 of an antenuptial contract. The clause reads:
'That I the assets of the Husband which are listed hereunder and all liabilities presently associated therewith or any other asset acquired by the Husband by virtue of his possession or former possession of such asset shall not be taken into account as part of the Husband's Estate at either the commencement or dissolution of the marriage.
All shares and loan accounts in Rand Building Hydraulic (Pty) Ltd [RBH]. J
2019 (4) SA p147
Sutherland J (Matojane J concurring)
All shares and loan accounts in National Re Investments (Pty) Ltd [NRI].' A
[2] The dispute between the parties is about whether certain of the assets that the husband possesses at the dissolution of the marriage, which he did not possess at the commencement of the marriage, are excluded by this clause. B
[3] The bare facts are these:
At the commencement of the marriage, the husband possessed:
220 of 1000 issued shares in RBH plus a credit balance loan account C
A right as beneficial owner to 21 of 100 shares in NRI, plus a credit balance loan account.
It is common cause these assets were excluded.
At the dissolution of the marriage, the husband possessed:
The entire shareholdings in RBH plus a credit balance loan account greater than initially. D
The entire shareholdings in NRI plus a credit balance loan account greater than initially.
[4] The critical question is: Are the additional shares over and above what the husband possessed at the commencement also excluded? E
[5] There is a controversy about whether the words used in the clause evidence an intention to exclude assets that were acquired in the future; ie after the commencement of the marriage. The additional shares possessed at the dissolution are assets acquired after the commencement of the marriage and during its existence. F
[6] I have read the judgment of my colleague Siwendu J. We disagree on the outcome of the case. I understand our points of departure to be twofold: first, the meaning to be attributed to the text of the clause, and second, as to whether it is lawful to exclude, in an antenuptial contract G establishing an accrual regime, assets acquired in the future, ie after the commencement of the marriage.
[7] I deal first with the text of clause 4 and thereafter with the application and significance of s 4(1)(b)(ii) of the Matrimonial Property Act 88 of 1984 (MPA). H
An analysis of the text of clause 4
[8] Several components of the text in the clause have triggered distinct debates. These are dealt with in turn. I
[9] First, it is appropriate to examine the structure of the clause.
The two subparagraphs serve to identify the assets. In context, they serve no other purpose. Notably, neither is a self-standing sentence, ie one would not write those words independently of other words. Indeed, they are not proper sentences, lacking a J
2019 (4) SA p148
Sutherland J (Matojane J concurring)
verb, A or a subject or an object. Accordingly, they are demonstrably subordinate clauses. A subordinate clause can only have a meaning in the context of the primary clause.
The primary clause is the preamble. In that text there is a reference to the two subordinate clauses. The words that B connect the primary and subordinate clauses are: 'That the assets of the Husband which are listed hereunder. . . .'
For illustration purposes, the primary clause could have been written to incorporate the substance of the subordinate clauses thus:
'That C the assets of the husband, [ie] all shares and loan accounts in RBH and all shares and loan accounts in NRI, and all liabilities associated therewith or any other asset acquired by the husband, shall not be taken into account as part of the husband's estate at either the commencement or dissolution of the marriage.'
[10] D The significance of examining the structure of the text is that the conclusion must be reached that the words 'the assets of the Husband which are listed hereunder' govern the subordinate clauses. The implications of this analysis are that:
The introductory phrase, ie 'the assets of the Husband' can E only mean assets that he at that time possessed, ie at the commencement of the marriage.
The phrase 'which are listed hereunder' must be subject to that assertion, ie assets which he already possesses.
The phrases in the subordinate clauses do not and cannot F contemplate...
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