ST v CT

• Jurisdiction: South Africa
• Judge: Majiedt JA, Saldulker JA, Dambuza JA, Plasket AJA and Rogers AJA
• Judgment Date: 30 May 2018
• Citation: 2018 (5) SA 479 (SCA)
• Docket Number: 1224/16 [2018] ZASCA 73
• Hearing Date: 30 May 2018
• Counsel: N Konstantinides SC (with F Gordon-Turner) for the appellant. JG Dickerson SC (with J Anderssen) for the respondent.
• Court: Supreme Court of Appeal

Majiedt JA and Rogers AJA (Saldulker JA, Dambuza JA and Plasket AJA concurring): F

[1] In this bitterly contested divorce the trial ran for 53 court days and the record is in excess of 8000 pages. The primary disputes concerned maintenance, accrual and property. The Western Cape Division, Cape Town (Weinkove AJ sitting as court of first instance) (the High Court), granted limited leave to appeal to this court in respect of the orders it granted. On petition, this court extended leave to all the issues. G

[2] This joint judgment deals with all issues other than the legal basis on which the waiver of maintenance by the respondent is 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. H

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 I 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 J

Majiedt JA and Rogers AJA (Saldulker JA, Dambuza JA and Plasket AJA concurring)

time A 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] B 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 C 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] D 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, E 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 F 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 G 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 H 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 I 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 J maintenance after the dissolution of the marriage (the waiver clause).

Majiedt JA and Rogers AJA (Saldulker JA, Dambuza JA and Plasket AJA concurring)

The waiver of maintenance A

[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 B 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 C 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; D

(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, E 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 F 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 G 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 H 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 I

[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 J

Majiedt JA and Rogers AJA (Saldulker JA, Dambuza JA and Plasket AJA concurring)

tantamount A 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 the appellant's substantive application for postponement B 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 C 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 D 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. E 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 F said that, the rulings were most certainly not one-sided throughout. For the reasons that will emerge...