Coetser v Coetser

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Roelofse AJ
• Judgment Date: 03 March 2023
• Citation: 2023 JDR 0636 (MN)
• Docket Number: 2015/2020
• Hearing Date: 27 February 2023
• Court: Mpumalanga Division (Main Seat)

Roelofse AJ:

INTRODUCTION:

[1]

The parties are in the midst of divorce proceedings. All I am required to pronounce is whether the antenuptial contract entered into between the parties is null and void and therefore unenforceable (as the defendant counter-claims) or if the antenuptial contract must be rectified to reflect the parties' true intention (as the plaintiff claims).

THE ANTENUPTIAL CONTRACT:

[2]

The parties married on 3 March 2001 at Lydenburg out of community of property with the inclusion of the accrual system. Prior to the registration of the antenuptial contract and prior to their marriage, the parties signed a draft thereof in the presence of witnesses. The evidence confirmed that the registered antenuptial contract is exactly the same as the draft antenuptial contract that was signed by the parties.

[3]

Clauses 4 and 5 of the antenuptial contract are the core of the dispute.

[4]

Clause 4 of the antenuptial contract reads:

2023 JDR 0636 p3

Roelofse AJ

'Dat vir die doel van die bewys van die netto waarde van hulle onderskeie boedels by die aanvang van die voorgenome huwelik die voordenome gades verklaar dat die netto waarde van hulle onderskeie boedels soos volg is:

. . . . . . . . . . . . .'

[In the remainder of this paragraph 4, the parties proceed to list specific items and the value of those items. The plaintiff recorded the value of the items to be R 2 767 000.00 and the defendant recorded that the value of the one item she lists was R 30 000.00]

[5]

Clause 5 of the antenuptial contract reads:

'Dat die bates van die partye of een van hulle twee wat hieronder gelys word en wat die getoonde waardes het, asook alle laste wat tans daarmee in verband staan, of enige ander bate verkry deur sodanige party uit hoofde van sy besit of vroeëre besit van sodanige bate, nie by óf the aanvang óf die ontbinding van die huwelik in aanmerking geneem word as deel van sodanige party se boedel nie.'

No assets were listed under this clause. Instead, the values set out in clause 4 were repeated.

[6]

In the action, the plaintiff prays in prayer 9 of his particulars of claim as follows:

'That paragraph 5 of the parties' antenuptial contract be rectified in the following manner:

9.1

That the words: "is R 2 767 000,00 (TWEE MILJOEN SESHONDERD EN SEWE EN SESTIG DUISEND RAND)" Be replaced by the words: "GEEN", and furthermore that the words: "is R 3 000,00 (DRIE DUISEND RAND)" Be replaced by the words "GEEN".

2023 JDR 0636 p4

Roelofse AJ

[7]

As basis for the order sought in paragraph 9.1 of the particulars of claim, the plaintiff pleads that clause 5 of the antenuptial contract should have read that no assets of any of the parties shall be excluded from the calculation of the accrual because the "mistake" '. . .[w]as occasioned by an oversight by the author of the ante-nuptial contract, and the parties signed the special procuration in the bona fide but mistaken belief that the ante-nuptial agreement will reflect the true agreement and intention between the parties.' [1]

[8]

The defendant pleads in her counter-claim that:

'Clauses 4 and 5 of the purported ante-nuptial contract of the Plaintiff and the Defendant are materially contradictory and cannot be reconciled with each other as clause 4 thereof intends that the assets of the Plaintiff and the Defendant which are listed would be subject to the accrual system but form part of the net commencement value whereas clause 5 of on the other hand states that those same assets will not be taken into account as part of the Plaintiff and Defendant's estate at either the commencement or the dissolution of the marriage of the parties.'

'By virtue of the fact that it cannot be established what the parties intended to execute in terms of the accrual system and the fact that the honourable Court cannot create a contract between the parties the contract of the parties is not rectifiable and ought to be declared null and void ab initio by virtue of the vagueness of the terms of the ante-nuptial contract'

'The parties ought accordingly to be declared to be married in community of property and the Defendant is entitled to a division of the joint estate of the parties.'

[9]

In paragraph 2.1 of the counter-claim, the defendant prays that the registered antenuptial contract of the parties be declared null and void ab initio and that the parties be declared to be married in community of property.

2023 JDR 0636 p5

Roelofse AJ

THE EVIDENCE:

[10]

The plaintiff called two witnesses and also testified himself. Only the defendant testified in pursuit of her counter-claim. Attorney, Mr. Stenekamp, who consulted the plaintiff and the defendant over the antenuptial...