Cases Part 2

Guggenheim v Rosenbaum 1961 (W) ....................................................................2

M NO v M 1991 (D&C)............................................................................................3
Van Jaarsveld v Bridges 2010 (SCA) ..................................................................... 4
Cloete v Maritz 2013 (WCC) ...................................................................................5
B v B 1983 (N) ........................................................................................................6
Martens v Martens 1952 (W) .................................................................................. 7
Ex Parte Dow 1987 (D) ........................................................................................... 8
Ngubane v Ngubane 1983 (T) ................................................................................9
Peter v Minister of Law and Order 1990 (OK) ......................................................10
DE v RH 2015 (CC) .............................................................................................. 11
Honey v Honey 1992 (W) ....................................................................................12
De Plessis v Pienaar NO and Others 2003 (SCA)................................................13
Estate Sayle v Commissioner of Inland Revenue 1945 (AD) ............................... 14
Van der Merwe v Road Accident Fund 2006 (CC) ................................................15
Badenhorst v Bekker 1994 (N) ............................................................................. 16
Schwartz v Schwartz 1984 (A)..............................................................................17
Amar v Amar 1999 (W) ......................................................................................... 18
Kroon v Kroon 1986 (EC) ..................................................................................... 19
Pommerel v Pommerel 1990 (E) .......................................................................... 20
Kooverjee v Kooverjee 2006 (C)...........................................................................21
Odgers v De Gersigny 2007 (SCA) ...................................................................... 22
Wijker v Wijker 1993 (A) .......................................................................................23
Beaumont v Beaumont 1987 (A) ......................................................................... 25
Kritzinger v Kritzinger 1989 (A) ............................................................................. 26
Bezuidenhout v Bezuidenhout 2005 (SCA) .........................................................27
Badenhorst v Badenhorst 2006 (SCA) ................................................................. 28
Ryland v Edros 1997 (C) ...................................................................................... 29
Khan v Khan 2005 (T)........................................................................................... 30
Daniels v Campbell 2004 (CC) ............................................................................. 31
Hassam v Jacobs NO and Others 2009 (CC)....................................................... 32
Amod (Born Peer) v Multilateral Motor Vehicle Accidents Fund 1999 (SCA) ....... 33
Rose v Rose 2015 (WCC) ....................................................................................34
Singh v Ramparsad 2007 (D&CLD)...................................................................... 35
Govender v Ragavayah 2009 (D) ......................................................................... 36
Prag v Prag 2009 (Wynberg Maintenance Court) [Unreported]............................ 37
1
Guggenheim v Rosenbaum 1961 (W)

Facts:
The plaintiff alleged that on the 16th of October 1959 the parties verbally agreed to marry each
other (this agreement was then confirmed on 12th February 1960).
The defendant then repudiated their agreement and refused to marry the plaintiff.
The plaintiff claimed damages (exceeding £7000 at the commencement of the trial) as she had
given up her flat and employment, and sold her car and furniture.
The defendant’s main defence was denying an agreement took place.
His second defence was a claim that the plaintiff and her former husband got divorced in a State in
which they were not domiciled, thus rendering the divorce as unrecognised in the law. This would
mean the contract to marry between the defendant and plaintiff was contra bonos mores.
He also claimed that the law of the State of New York had to be applied, and according to this law,
damages could not be recovered for the breach of the contract.

Legal Question:
Could the plaintiff prove an engagement? Was she in fact divorced from her former husband?
What law would govern her marriage contract that she had with the defendant? Could she claim
delictual or contractual damages?

Ratio decidendi:
The judge agreed from looking at evidence, that there was indeed a breach of contract by the
defendant’s refusal to marry the plaintiff.
There was no express agreement, but the intentions of the parties lead to a presumption that
South African law governed the contract. The defendant was domiciled in South Africa, and when
they agreed to marry, the intention was for the plaintiff to move to South Africa and make her home
there. The judge looked at Hansen v Dixon to support his conclusion.
The judge look at Armitage v Attorney General 1906 to conclude that if the courts where the parties
were domiciled recognise the foreign decree of divorce as valid and effective, it will be recognised
by them.
Regarding damages, the judge looked at the view expressed by Justice Van Der Heever, in which
it was said that in order for delictual damages to be recovered, the breach of contract must not only
be wrongful, but must also be injurious or contumelious (scornful or insulting).
The court did however agree that regarding contractual damages, the prospective loss of the
benefits of the marriage (positive interest) and actual monetary loss incurred (negative interest),
meant damages could be awarded.

Court order:
It was ruled that there was a breach of contract, and said contract was valid and recognised in the
eyes of the law. Contractual damages to the amount of R2 687 were paid out.

2
M NO v M 1991 (D&C)

Facts:
The plaintiff’s daughter and the defendant had been married in accordance with Hindu rites and
custom on the 4th of September 1988, and the defendant had agreed to register the marriage in
accordance with South African law.
The plaintiff accused the defendant (a major at all relevant times) of seducing his minor daughter,
and wanted payment of damages resulting from the defendant's breach of promise to marry said
daughter.
The defendant then repudiated his obligation to register the marriage by failing to keep an
appointment to do so.
The plaintiff was claiming for damages that included an impairment of her further prospects of
marriage and personal dignity. This was a result of her falling pregnant as a consequence of the
alleged seduction.
The defendant claimed there was no agreement between himself and the plaintiff’s daughter to
register the marriage, and even then when he had made arrangement to register the marriage, the
minor and the plaintiff had failed to appear.
He also claimed the minor was not a virgin at the time they had been intimate, and denied any
knowledge that she was pregnant and denied the alleged damages suffered from this.

Legal Question:
Had there been an agreement to solemnise the marriage by civil ceremony? If so, who was the
agreement between? What damages could the plaintiff claim for?

Ratio decidendi:
The judge ruled that on a balance of probabilities, there was an agreement to solemnise the
marriage by a civil procedure.
The judge also found that the allegations of the plaintiff and his daughter failing to appear to
register the marriage, were false, as there was no logical reason (from all the steps they had taken
to ensure registration) as to why they would refuse the registration.
Regarding the identities of the parties involved in the agreement, the judge reached a similar
conclusion to what was reached by Selke J in Maharaj v Amichund 1952, that: although there was
no express agreement between the parties to be wed, the parties were not uninvolved bystanders,
and were participants in the negotiations which were in accordance with Hindu custom, even if they
were not active. The defendant admitted this to be true.
The judge found that there was no lawful excuse for the defendants breach of promise (with the
judge being satisfied that said breach had occurred).
The court considered the injurious element of the breach of promise (see Guggenheim v
Rosenbaum).
The judge claimed that the defendant’s unwillingness to honour his obligation was cruel, and result
in leaving the daughter with feelings of hurt and depression. The judge stated that the daughter
had been ‘deflowered’ and left with a child, which had an adverse effect on the daughters marriage
prospects to a substantial degree.

Court order:
The court order an award for general damages as a result of the breach of promise and the
seduction of the daughter. Added to this was special damages which were suffered as a result of
medical and hospital fees (that were incurred when she gave birth).

3
Van Jaarsveld v Bridges 2010 (SCA)

Facts:
Ms Bridges (the respondent) instituted a claim for damages against Mr Van Jaarsveld (the
appellant) on the ground of breach of promise to marry.
Ms Bridges claims for both an iniuria and contractual damages were upheld in the court a quo. Mr
Van Jaarsveld appealed against this order.

Legal Question:
For what could damages be claimed?

Ratio decidendi:
The judge stated how a breach of promise can only lead to sentimental damages if it was wrongful
in the delicutal sense (i.e. that it was injurious).
The judge found that while the breaking of the engagement might wound Ms Bridges self esteem,
the break-up message and situations that arose from that were not, objectively determined,
insulting (and therefore wrongful) and cannot give rise to an action for injuria.
Regarding the contractual damages, the judge stated that he considered engagement to be an
unenforceable pactum de contrahendo (an agreement) that provides a time for the couple to get to
know each other better decide on whether or not to marry finally.
The court also decided that in terms of requiring a iusta causa to cancel an engagement, there was
no reason for a lack of desire to marry the particular person to not count as a just cause.
The court also came to the conclusion that the approach to make engagement a rigid contractual
footing is not legally tenable (justifiable). This is due to it being difficult to justify the
commercialisation of an engagement in the view of the fact that a marriage does not give rise to a
commercial or rigid contractual relationship.
The judge also found it hard to rationalise claims for a breach of promise, particularly where the
claim is based on prospective loss of the benefits of marriage. For example, the parties would not
usually agree on their matrimonial property regime when they promise to marry (it would normally
be done only when they do actually marry), so on what basis must a court make an assumption in
this regard? The SCA ruled that: ‘courts should [not] involve themselves with speculation on such a
grand scale by permitting claims for prospective losses’.
The judge looked at Ms Bridges various claims for damages (as a result of monetary expenditure)
against Mr Van Jaarsveld, due to various miscalculations and oversights by the court a quo.

Court order:
The appeal was upheld with costs.


4
Cloete v Maritz 2013 (WCC)
Facts:
Plaintiff (Cloete) sued the defendant (Maritz) for breach of promise, which involved a claim for the
loss of prospective financial benefits of the marriage.
Cloete claimed she had lost the right of enjoyment of an immovable property (valued at R3.5
million) and that she had lost the right to be maintained and supported by Maritz which would be
amount to R2.5 million (R8 500 per month for 25 year).
Martin raised a special plea to the effect that the claim for prospective loss based on breach of
promise no longer formed part of South African law.

Legal Question:
Does a claim for prospective loss based on breach of promise still form part of South African law?

Ratio decidendi:
The decision in Van Jaarsveld v Bridges that prospective losses from a breach of promise should
no longer form part of South African law was found to merely be obiter dicta and was thus not
binding on the court in this case.
The judge stated that the courts have the right, and duty, to develop the common law so that it
reflects the spirit, purport, and objects of the Bill of Rights (S 39 of the Constitution).
However, the court also looked at the case of Carmichele v Minister of Safety and Security and
Another in which it was said that major driver of reform should be the legislature and not the courts.
Finally, the judge stated that he did in fact agree with the strong persuasive precedent set out in
Van Jaarsveld v Bridges and that the current legal position did not reflect the public policy.
The court therefore upheld the views expressed in Van Jaarsveld v Bridges.

Court order:
Court upheld Maritz’s special plea

Relevance:
The court agreed that although the views expressed in Van Jaarsveld v Bridges were only obiter
dicta, the argument was strongly persuasive and a re-assessment of the law of engagement was
thus necessary.
Henny J confirmed that our courts have the power to develop the common law in line with the
Constitution and thus exercised this power to hold that claims for prospective loss based on breach
of promise no longer form part of South African law. 


5
B v B 1983 (N)
Facts:
Applicant (a girl of almost 17) wished to marry M (a man of 22). M had left school without
completing matric but was in the process of competing his apprenticeship as a turner (which would
earn him a decent salary).
The applicant’s parents refused to consent to her marriage on the basis she was too young and
that also that she was a Muslim while M was a Hindu. They had taken her out of school and
forbidden her to see M.
She had moved out of her parent’s home and had been living with M and his parent five months
preceding the court application.
M and the applicant had been seeing each other four years and M had interim converted to Islam.
The applicant approached the court for an order overruling her parents refusal to the marriage.

Legal Question:
Under which circumstances can an order be granted in terms of section 25(3) of the Marriage Act
25 of 1961?

Ratio decidendi:
In terms of S 25(4) the refusal must be without adequate reasons and contrary to the interest of the
minor.
The court confirmed, as held in Allcock v Allcock 1969, that this section did not confer on the court
an unfettered (unconstrained) discretion, but required a judge to apply his/her mind to these two
factors
These requirements are complementary, and must not be considered separately.
The judge must consider all circumstances and must, when considering the parents’ objections to
the marriage, remember that the parent have:
Superior advantages … over it in the matter of so personal and intimate a decision. … But the Court must
ultimately decide, having weighed up the reasons for the parental refusal, whether by its own objective
standards there is ‘sufficient reason to justify the parental refusal’ and in doing so it must … be of paramount
importance where it will be in the best interests of the minor to allow the minor to marry
The court found that M would be able to sufficiently support the applicant, and that their
relationship had lasted for a long period and seemed strong. M had also made steps to convert to
the applicants religion, and thus it seemed no friction would arise. The court also found a lack of
sufficient reason as to why the parents would refuse consent.

Court order:
The application was successful 


6
Martens v Martens 1952 (W)
Facts:
Defendant met a Mr. H (in Greece) and had decided to come to South Africa to live with him
(although he was married). In order for the defendant to come to RSA, she needed to get married.
The plaintiff (a friend of Mr. H) was persuaded to marry the defendant. On 5th November 1947 they
were married before a magistrate.
After concluding the marriage, the defendant went to live with Mr H (they then had two children
together), and the plaintiff went on his way.
In October 1950, the plaintiff wrote a letter to the defendant asking her to come be his wife. (she
refused) Some time thereafter Mr H obtained a divorce from his wife. In November 1951 the
plaintiff went to see the defendant and again asked her to come live with him. Again, she refused.
The plaintiff instituted an action a declaration of nullity of marriage or for the granting of a restitution
order.

Legal Question:
Was marriage entered into with the intention not to live as husband and wife a valid marriage?

Ratio decidendi:
The court reasoned that the marriage was indeed valid in his view.
The court then ruled that as the marriage was a valid one, the parties had to accord to each other
rights of marriage and that agreements to the contrary (with the exception of recognised deeds of
separation) were invalid. The court accordingly had to give the marriage its legal consequences.
The court further held that as a matter of public policy, the courts will not lend themselves to
schemes to evade the law, but that they should not be relentless if they are countervailing
considerations of public policy.
The court stated that the plaintiff had disregarded the law out of stupidity, rather than defiance, and
had in no way acted for his own advantage. The court also acknowledged he had tried to comply
with the law.
They found that the plaintiff was not abusing the process of the courts in asking that his wife should
become his wife.

Court order:
The defendant was ordered to restore conjugal* rights (order for restitution) to the plaintiff, and
failing to show so meant she must give reason as to why a decree of divorce should not be granted
and why the custody of the two children should be awarded to the defendant.

*Conjugal —> relating to marriage or the relationship between a married couple.

7
Ex Parte Dow 1987 (D)

Facts:
The applicant applied for a court order declaring his marriage, solemnised in 1984, as null and
void.
He stated the reason for this as being it was concluded in his private garden (in the open) and not
in a private dwelling house.
He claimed this breached the provisions of S 29(2) of the Marriage Act 25 of 1961.
The applicants wife supported such an order.

Legal Question:
Is a marriage solemnised in a place not provided for in S 29(2) valid?

Ratio decidendi:
The Judge reasoned that the provisions of the Act were created with the aim of preventing
clandestine marriages.
It was viewed that as marriage is a serious contract, a small technicality could not render it null and
void, with proof being in S 22 where it was stated that even if there were non-compliances with
parts of the procedure made in good faith (e.g. an action or omission), the marriage would still be
valid as if the provisions had been strictly complied with.

Court order:
Application dismissed

8
Ngubane v Ngubane 1983 (T)

Facts:
Appellant entered into a marriage with the respondent whilst already being in a marriage with
another person.
Four children were born his union with the respondent.
The marriage was out of community of property.
In 1980 the respondent had executed an action against the appellant, claiming that the marriage
was bigamous and thus null and void ab initio.
The appellant had conceded the marriage was void in his plea, and had sought an order declaring
it such, but also requested that the children be declared legitimate and custody be given to him.
The court a quo simply declared the marriage void ab initio and made no decision regarding the
other prayers (such as for the children).

Legal Question:
Was the marriage putative or void? What affect would this have on the legitimacy of the children?

Ratio decidendi:
It was regarded that if the marriage is not putative, the children will be illegitimate.
It was ruled that the appellant was an intelligent and experienced business and thus could not have
been acting bona fide when he entered into the marriage with the respondent.
However, one of the parties to the marriage was bona fide (the respondent) and the parties had
lived together as husband and wife for a number of years.
It was thus found that marriage was legally putative.
In the case of Ex Parte L 1947 it was ruled that a declaration of legitimacy (of the children) should
be made in the case of a putative marriage where one of the spouses was acting bona fide.
This was confirmed in Ban v Bahba 1947 where it was stated there was not sufficient reason as to
why there must be a distinction between the legitimate children born of a valid subsisting marriage,
and the legitimate children born of an invalid but putative marriage.
The court found then ruled that there was no reason why the appellant (being the party who did not
act bona fide) could not apply for an order declaring the children as legitimate.
The court further stated that declaring the children as illegitimate would be highly prejudicial to
them.

Court order:
The court a quo’s judgment was amended and the marriage was declared putative and the children
legitimate

9
Peter v Minister of Law and Order 1990 (OK)

Facts:
Plaintiff instituted an action against defendants for damages arising from an incident on or about 2
February 1987.
The plaintiff’s wife was assaulted by a special constable and she subsequently died.
Plaintiff applied for, inter alia, a loss of consortium arising from the death of his wife.
Question was whether a difference in terminology constituted as non-compliance with S 32(1) of
the Police Act 7 of 1958.

Legal Question:
Can a party claim damages from a loss of consortium?

Ratio decidendi:
The judge sought to understand what was meant by ‘consortium’.
He identified that it has a twofold meaning, namely community of goods, and fellowship and
participation in society.
According to Grobbelaar v Havenga 1964 (N), consortium was comprising of the totality of a
number of rights, duties and advantages accruing to spouses of a marriage. It was further stated
that the law gives a remedy for its loss.
He also found that consortium included intangibles, such as loyalty, care and affection, as well as
the more material needs of life, such as physical care, financial support, the rendering of services
in the running of the common household etc.
The judge thus ruled that the plaintiff had used a different choice of wording for his claim, but he
concluded that the plaintiff meant it to be a claim for a loss of support and services etc.
Therefore the plaintiff complied with S 32 of the Police Act 7 of 1958.

Court order:
Order was granted to the plaintiff and the defendant’s special plea was dismissed with costs.

10
DE v RH 2015 (CC)

Facts:
Mr DE (applicant) sued Mr RH (respondent) for damages on the basis that Mr RH had an extra-
marital affair with Mr DE’s former wife.
The action was based on general remedy for the infringement of personality rights, specifically
insult to his personality, and loss of comfort and society of his spouse.
In the High Court, action for claim for insult successful, but loss of comfort and society could not be
proved (decided there was no evidence that the adultery had called the breakup of the marriage).
Appeal to SCA, which recognised our law had allowed for claim of insult against a third party in the
case of adultery, however it raised the question of whether such a claim should continue to exist.
The court concluded that the claim was outdated and therefore abolished it.
Mr DE appealed the decision to the CC, contending that the claim serves an important purpose of
protecting the innocent spouse’s dignity, and it preserves the institution of marriage.

Legal Question:
Is a claim for damages based on adultery outdated?

Ratio decidendi:
The court considered Green v Fitzgerald where it was stated that authorities take no notice of the
offence of adultery, and that is has ceased to be regarded as crime.
The court then found that many actions for claiming damages based on adultery have been
abolished in multiple foreign countries, including England, New Zealand, Australia, and Scotland.
The court then stated that the law can remove all legal obstacles that impede meaningful
enjoyment of married life, but it cannot be expected to prop up a marriage that is weakening or
disintegrating through no fault of the law.
The judge stated that wrongful in Afrikaans loosely meant the ‘community’s general sense of
justice’ and that current trends show a softening in attitudes towards adultery.
The court also stated that the innocent person’s rights are do not necessarily weigh less because
of adultery.
The court further found that the threat of delictual liability was an intrusion on the right of a
consenting individual to have a sexual relationship with whomever s/he chooses.
The court conceded that the innocent party’s dignity is infringed, but it was weighed against the
infringement of the fundamental rights of the adulterous spouse and third party’s to privacy,
freedom of association, and freedom of security of the person.
The judge concluded that the act of adultery by a third party lacks wrongfulness for purposes of a
delictual claim of contumelia and loss of consortium and thus it is not reasonable to attach delictual
liability to it.

Court order:
The appeal was dismissed. Leave to appeal was granted

11
Honey v Honey 1992 (W)

Facts:
Proprietary rights of the parties in the divorce action were governed by an ANC, which specified
that marriage would be out of COP and subject to the accrual system.
Three years after concluding the marriage, the spouses concluded a further written agreement in
terms of which the parties purported to cancel their antenuptial contract. This contract was not
registered in the deeds registry or entered into with permission from the court as provided for S
21(1) of the Matrimonial Property Act 88 of 1984.
Plaintiff (wife) sued the defendant for divorce and claimed (based on the postnuptial contract) that
she was entitled to retain her property as hers.
Defendant maintained the postnuptial contract is void ab initio, or alternatively, that it is voidable in
his plea. He also made a counterclaim for relief from the plaintiff, based on the antenuptial
contract.

Legal Question:
Was the postnuptial contract valid and enforceable?

Ratio decidendi:
The court decided that according to S 2 of the Matrimonial Property Act 88 of 1984, the accrual
system can only be excluded by antenuptial contract.
The court looked at the case of Ex parte Marx et Uxor 1936 which held that parties married in COP
cannot by postnuptial agreement change to a marriage out of COP. The reason for this being that a
change from communal marriage to a marriage out of COP amounts to a donation between the
spouses. However, the court here did not try to discern if the contract amounted to a donation or
not, but simply made it void.
The court included that the mere repeal of the prohibition against donations between spouses did
not automatically abrogate (repeal) the rule that parties may not post nuptially amend an
antenuptial contract whether such amendment is intended to have inter partes effects only or not.

Court order:
The postnuptial contract was declared void and unenforceable as between the parties inter se.

12
De Plessis v Pienaar NO and Others 2003 (SCA)

Facts:
Appellant inherited certain movable and immovable property from her father. At the time she was
married in COP and said marriage was still in existence when case was heard by the court.
The property bequeathed was stipulated to not fall into the joint estate, and to not be subject to the
marital power of the appellant’s husband, and that it was not to fall within ‘any possible insolvent
estate’ and the appellant’s husband nor vest in the trustee of such estate.
Eventually the joint estate was sequestrated. The first and second respondents were the trustees
of the insolvent estate.
When the trustees laid claim to the appellant’s separate property for the benefit of creditors, the
appellant applied to a Provincial Division for orders declaring the property did not form part of the
insolvent estate, and that the property must be restored to her.
The Court a quo followed Badenhorst v Bekker NO en Andere 1994 (N) and dismissed the
appellant’s claims, but granted leave to appeal to the SCA.
Appellant’s argument was that the debts were incurred by the joint estate and should thus only be
recoverable from the joint estate.

Legal Question:
Can property in the separate estate of a spouse be claimed by a third party to pay off creditors for
debts incurred by the joint estate?

Ratio decidendi:
The court first reasoned that debts are not incurred by a person’s estate, rather that the estate is
merely the source from which debt is recovered.
Debt is incurred by the person who is the debtor.
When spouses are married in COP, debts incurred by one spouse generally accrue to them both.
The judge saw that the Insolvency Act does not recognise separate estates of a debtor, nor allow
for the sequestration of only part of a debtor’s estate.
The effect of sequestration is to divest the debtor of the whole of his/her estate.
The judge further claimed that the Matrimonial Property Act recognised the existence of separate
property in the relationship between the spouses, but that it did not affect the rights of third parties.
The judge also argued that the debt was not merely incurred by only the husband, but was a joint
debt of the spouses.
The judge concluded that as long as a spouse is a debtor, his/her creditors may look to all the
property of the debtor in satisfaction of the debt.

Court order:
The appeal was dismissed with costs

13
Estate Sayle v Commissioner of Inland Revenue 1945 (AD)
Facts:
Appeal from Transvaal Provincial Division (refused to grant the order).
Husband and wife were married in COP. The husband made a donation inter vivos to his children.
Both husband and wife then subsequently (two years later) died.
According to the relevant legislation at the time (Death Duties Act 29 of 1922), the donation was
subject to estate duty.
The executor of the deceased’s estate (applicant) argued that only half of the value of the donation
formed part of the deceased’s estate as the other half was part of the wife’s half of the joint estate.
Thus it was argued that the estate duty should only be levied on the half the formed part of the
deceased’s estate.
The court a quo found that the whole amount of the donation was taxable as it formed part of the
husband’s estate.

Legal Question:
Was the whole estate taxable, or only half? Which part formed part of the husband’s estate?

Ratio decidendi:
The judge stated that the purpose of S3(4)(f) of the Act was to bring back into the estate of a
deceased person only the value of such property as was actually given away out of it within two
years before the death of the deceased, and not the value of property which was never owned by
the deceased.

Court order:
The appeal was successful, and the estate duty was found to only be levied on half of the
donation.

Relevance:
The court concluded that the wide and extensive powers of alienation the husband could exercise
over his wife’s property to her detriment and without any reference to her, were nearly as wide as
those of an owner, but did not include all those of an owner.
The court gave three reasons for this conclusion:
1. The law did not allow him to commit fraud upon his wife
2. He could not dispose of her property by will
3. If a judicial separation took place, the court could make orders that were inconsistent
with the idea of sole ownership.
It was also held that when the husband exercised his legal power of disposition, he did not diminish
the value of his own estate by the whole amount of the gift but only by one half.
Thus, as the husband was not the sole owner of the joint estate, but only a tied co-owner of an
undivided half share, half of the donation came from the wife’s estate and her deceased estate
should be taxed accordingly.
Implications were that common law spouses were legally unable to institute delictual claims against
one another, as patrimonial damages would be paid from the joint estate into the joint estate.
Another implication was that both spouses can acquire the status of insolvent when the joint estate
is sequestrated. The husband and wife are the insolvent debtors since their marriage (being in
COP) implies that property debts incurred by one spouse generally accrue to them both. 


14
Van der Merwe v Road Accident Fund 2006 (CC)
Facts:
Mr Van der Merwe intentionally drove his motor vehicle into his wife (applicant), which resulted in
her sustaining severe bodily injuries which required extensive medical treatment.
At the time of the incident, they were married in COP, but have since been divorced.
The applicant instituted an action against the Road Accident Fund, and challenged the
constitutional validity of section 18(b) of the Matrimonial Property Act 1984.
This section barred her from recovering patrimonial damages for the bodily injury she suffered at
the hands of her husband, as they were married in COP.
The Cape High Court ruled the section as unconstitutional as it infringed on the applicant’s right to
dignity, and equality (in terms of marital status).
The High Court made an order that the word ‘other damages for patrimonial loss’ in section 18(b)
be replaced by ‘including damages for patrimonial loss’.

Legal Question:
Was section 18(b) indeed invalid?

Ratio decidendi:
An argument against allowing spouses married in COP to claim damages for patrimonial loss
against their spouse, was that as they have a joint estate, the money recovered would come out of
the joint estate, and instantly fall back into the joint estate. However, the court reasoned that in
present times, damages could fall into the innocent spouse’s separate property (which does not
form part of the joint estate). It is was further concluded that in such a case the damages could be
recovered via an appropriate adjustment on dissolution of the joint estate.
The court did indeed find that the section infringed on the right to equality in terms of marital status
as the differentiation between in COP and out of COP had no legitimate government purpose.
The court also held that the validity of a law depends on whether, objectively, it is consistent with
the Constitution.
The court further stated that section 18(b) immunised spouses married in COP who commit
degrading domestic battery. The court further said that spouses situated in all forms of marriage
are worthy of full protection.

Court order:
The Constitutional Court confirmed the invalidity of section 18(b) and amended it by severing the
words ‘other than damages for patrimonial loss’. The court also amended the omission from
section 18(b) of the words ‘such damages do not fall into the joint estate but become the separate
property of the injured spouse’ after the words ‘either wholly or in part to the fault of the spouse’ by
reading in the omitted words.

15
Badenhorst v Bekker 1994 (N)
Facts:
Joint estate of the spouses was sequestrated in 1985. In 1992, the wife inherited certain assets
from her father (which were excluded from the joint estate and her husband’s marital power).
The curators of the insolvent estate laid claim to these assets, and thereupon the wife approached
the court for a declaratory order stating that the excluded assets formed part of her separate estate
and thus could not be utilised as part of the insolvent estate.

Legal Question:
Was the court able to grant the testator’s wish and put the excluded assets beyond the reach of the
creditors of the joint estate?

Ratio decidendi:
The court held that a testator is competent to bequeath or donate assets to a beneficiary in such a
way that the assets would not form part of a joint estate and would not be subject to marital power.
However, the court also held that a testator could not provide that the bequest or donation be
immune from seizure, or that it would not form part of the insolvent estate of the beneficiary should
the beneficiary be sequestrated.
The court held that the sequestration of the joint estate of spouse married in COP resulted in the
insolvency of both spouses and although the excluded assets accrued to the applicant after the
sequestration of the joint estate, those assets fell within the ambit of S 20(1)(a) and 20(2)(b) of the
Insolvency Act 24 of 1936
Court held that S 21(1) was applicable only to spouses married out of COP. The section referred to
‘a spouse whose estate has not been sequestrated’ (applying to excluded assets of the wife where
marriage was out of COP), and thus could not apply to spouses in COP as they were both
considered insolvent.

Court order:
The court dismissed the request for a declaratory order putting the inherited assets beyond the
reach of creditors.

Relevancy:
As both spouses in an in COP marriage have debts accrue to both of them, both spouses become
‘insolvent debtors’ with the consequence that the property of both of them (joint estate and
separately owned property) is available to meet the claims of creditors,
It is opined by a number of writers that the separate property of spouse married in COP should be
protected on the same basis as that of spouses married out of COP. According to Hahlo Husband
and Wife and Van Aswegen Die insolvente gade en die Wet op Huweliksgoedere 88 van 1984
(1986), the same principles of spouses married out of COP should apply to the separate property
of spouses married in COP.
The decision may be set aside if challenged on constitutional grounds, as a spouse married in
COP may rely on the approach in Van der Merwe v RAF and argue that s/he is unconstitutionally
being discriminated against.
There is still a question on whether the separate property of the other spouse enjoys protection in
cases where there is no sequestration of the joint estate.

16
Schwartz v Schwartz 1984 (A)

Facts:
Appellant and his wife (respondent) married in COP on 18 December 1960.
Appellant began an extra-marital relationship with Ms M Lintvelt, a teacher at the appellant’s
daughters school (the judge stated ‘marital fidelity was not [the] appellant’s strong point’).
In 1978 the appellant started a divorce action against the respondent. The appellant left the family
home in September 1979 and went to live with Ms Lintvelt.
Around November 1981, the appellant withdrew the first divorce action and commenced a fresh
one in terms of the Divorce Act 70 of 1979.
The appellant admitted that the marriage relationship had broken down, but denied that such
breakdown was irretrievable that there was no reasonable prospect of the restoration of a normal
marriage relationship.
The appellant and respondent still had a functioning relationship, where they worked in the same
place, and still were connected through their children etc. It was even stated (by the court a quo)
that he had no true desire of breaking total relation with the defendant.
Thus it had been concluded in the court a quo that the appellant had not proven the irretrievable
breakdown of the marriage.

Legal Question:
How does the court determine a marriage has irretrievably broken down?

Ratio decidendi:
The judge looked at how the law had changed with the Divorce Act, and that now the criteria for
divorce was irretrievable breakdown of marriage, and that emphasis was put on the possibility of
reconciliation.
It was stated that in determining if the marriage has disintegrated sufficiently for irretrievable
breakdown, it is important to regard what has happened in the past (i.e the history of the
relationship up to the date of the trial), and also to the person attitude of the parties to marriage
relationship (as revealed by evidence at the trial).

• The judge looked at how the appellant and respondent had been living apart for over two
years.
• The appellant’s attitude to the marriage was that he wanted it dissolved so he could marry Ms
Lintvelt. He also claimed that while he admired the respondent, he did not love her anymore.
• The respondent’s attitude was that she wished to preserve her marriage with the appellant.
The judge was of the opinion that it was illogical to determine whether a marriage had irretrievably
broken down or not by reference to what might occur if the decree of divorce is refused.
The judge found that there was no prospect of the restoration of a normal marriage relationship as
there was no guarantee the appellant would break off his affair with Miss Lintvelt, and he stated
that even if he did, he would go on his way and not resume a normal marriage.

Court order:
The appeal was allowed and a decree of divorce granted.

17
Amar v Amar 1999 (W)
Facts:
Jewish wife (plaintiff) wished to obtain a divorce according to Jewish law. There was an agreement
that the parties would obtain a divorce from the Beth-Din (a Jewish Ecclesiastical Court) and
thereafter would proceed for a divorce from the court.
The defendant (husband) became unhappy about the financial aspects of the agreement, and thus
was withholding his co-operation in obtaining a Jewish divorce order in order to compel the plaintiff
to accede his request that the agreement be amended.

Legal Question:
What can the court do in terms of S5A of the Divorce Act regarding where a religious divorce must
also be obtained?

Ratio decidendi:
The court concluded that it deemed it just to make an order pressurise a party into granting a
religious divorce so that the other spouse could remarry, and that S 5A had the purpose of allowing
the court to create such a mechanism.
The court decided that it would order the defendant to pay monthly maintenance to the plaintiff until
such a time as he would grant the religious divorce order.
The court noted that the defendant’s attempts at blackmail were unacceptable.
The court ruled that the plaintiff had already previously given evidence that the marriage was
irretrievably broken down.

Court order:
The court gave a decree of divorce, and ordered that the defendant pay maintenance to the
plaintiff until a religious divorce order was obtained.


18
Kroon v Kroon 1986 (EC)
Facts:
Husband and wife divorced, and the wife claimed maintenance for herself the parties’ children.
The court dealt with the earning capacity of both parties.
The husband, an acting judge, would receive a salary.
The court however found that the wife, after twenty years’ absence from the market place would be
nigh unemployable.

Legal Question:
Can a notional earning capacity be ascribed to a party for maintenance purposes?

Ratio decidendi:
Court rejected the argument that a notional earning capacity should be attributed to the wife, by
referencing English Law where it is said that:
’a notional earning capacity can only be attributed to a wife who has the necessary skills; or
who is young, recently married and childless; or who was employed during the subsistence
of the marriage and where it is reasonable to expect of her to resume employment after the
divorce’
Consequently it cannot be expected from a court to attribute a notional earning capacity to a wife
upon divorce and thereby relieve a husband from paying maintenance.

Court order:
No notional earning capacity was attributed to the wife

Relevance
No notional earning capacity will be attributed to a woman who does not have the necessary skills
to enable her to trained or retrained for a job or occupation after her divorce.
Important considerations to see if a woman can be trained/retrained:
• Age of the woman
• Duration of the marriage
• Her marketable skills,
• Duration of her absence from the marketplace 


19
Pommerel v Pommerel 1990 (E)

Facts:
Husband ordered upon divorce to pay a certain amount of maintenance to his wife and two
children.
Wife later on successfully applied for the amounts to be increased and her formed husband
appealed against the decision.
His main argument was that his wife could work and thereby contribute to her own maintenance
and that of the children.
Although the wife was qualified as a typist and secretary, she refused to work.

Legal Question:
Should account be taken of the wife’s ability to work so that she can contribute towards her own
maintenance from her own income?

Ratio decidendi:
The court pointed out that notional employability of a spouse must be considered.
The fact that it is possible for a spouse to be employed does not mean that the spouse must find
employment.
In considering employability of a spouse, the court must consider if the decision not to take up
employment is reasonable.
The court account for factors such as:
• Age
• Health
• Qualifications
• Length of absence from the labour market
• Parties’ standard of living during the marriage
• Commitment to the care of the children

Court order:

Relevance:
Notional capacity of a house must be considered with reference to the specific circumstances.
Mere fact that a spouse is employable does not mean s/he must take up employment.
It is important to determine if the decision not to work is reasonable in view of the relevant factors.


20
Kooverjee v Kooverjee 2006 (C)

Facts:
Parties married in COP. Two children were born of the marriage.
Plaintiff (husband) instituted divorce proceedings and the defendant (wife) instated a counterclaim
for maintenance.
At the time of divorce the children were 14 and 16. The defendant has the primary responsibility to
care for the children and thus worked as a beautician and reflexologist on a part-time basis.
Plaintiff was a businessman with a regular and stable income.
A crucial aspect of the judgment was the question of whether the wife should receive rehabilitative
or permanent maintenance.
The plaintiff was of the opinion that the defendant, due to her qualifications and age, was
competent to generate her own income. The defendant was not unwilling to work.
Defendant’s testimony was that she was not able to devote sufficient time to her business because
of her responsibility to care for the children.

Legal Question:
How should the court award maintenance where the wife is employable but must also care for the
children of the marriage?

Ratio decidendi:
The court found that it was impossible for the defendant to expand her business as well as carry
primary responsibility to care for the children.
It was important that she continue to be primary caregiver, but she also required financial
assistance so that she could devote more time to the business in the long term.
The court accounted for the fact that the respondent would devote less time to the children as they
grew older and thus would be able to devote more time to her business.

Court order:
Court made a tapered award for rehabilitative maintenance in favour of the respondent.
The maintenance decreased every two years and would be payable until children completed their
tertiary education or became self-supporting, or for a period of ten years, whichever event occurred
first.

Relevance:
Importance of the judgment is as follows:
• Courts in the past limited rehabilitative maintenance to between six and eighteen months. The
court in this case however, showed that maintenance cannot be determined on an arbitrary
basis, especially not if the ultimate purpose is for a spouse to become self-sufficient. The
relevant facts of each case must be considered when determining how long to award
maintenance for
• Although our law promotes equality on the basis of gender and tries to apply the clean break
principle, it must not ignore the role of women who often make career sacrifices during a
marriage. The court stated: ‘it is, however, important to note that the de facto roles of women in
society today cannot be ignored and that forcing a model of formal equality onto our society may
just reinforce the existing unequal roles and hamper the achievement of true and substantive
equality’.


21
Odgers v De Gersigny 2007 (SCA)

Facts:
At the time of the divorce, the parties entered into an agreement which provided that the appellant
would pay maintenance to his former wife for 24 months.
The settlement agreement was not incorporated into the decree of divorce in terms of S 7(1) of the
Divorce Act.
Two months after the divorce, the wife (respondent) remarried, and the former husband (appellant)
stopped paying maintenance to her.
The agreement contained not causing stipulating that maintenance would stop being payed upon
death or remarriage.
Appellant argued that in terms of common law and a proper interpretation of the settlement
agreement, his obligation to pay maintenance terminated upon his former wife’s death or
remarriage.
Court a quo had denied the appellant the decision he wanted.

Legal Question:
Does the agreement for maintenance between the parties terminate upon death/remarriage of one
of the spouses?

Ratio decidendi:
Court held that where there is no settlement agreement between the spouses, the court can make
a maintenance order in terms of S 7(2) of the Divorce Act, which endures one until the death/
remarriage of the recipient spouse. However, the agreement between the spouses in this case was
not of the same nature as a S 7(2) order and thus remarriage/death could not terminate it.
The judge said there is no bar to agreeing on the duration and extent of the payment of
maintenance which is to be made, and that the agreement is valid and purely contractual in nature
and must therefore be governed by the rules that are applicable in that sphere.
Court held that irrespective of if the agreement was made an order of court in terms of S 7(1), the
terms of the agreement must be interpreted to determine when the duty to pay maintenance is
terminated.
In this case there was an express term of 24 months imposed on the appellant and he was ordered
to continue with his duty to pay maintenance

Court order:
Appeal dismissed with costs

Relevance:
SCA made a clear distinction between a duty of support in terms of S 7(1) of the Divorce Act and
the duty of support in terms of S 7(2).
In the first instance, the duty of support is based on a private agreement and the intention of the
parties must be determined.
In the second instance, the intention of the legislator must be determined and other considerations
play a role.


22
Wijker v Wijker 1993 (A)

Facts:
Parties married in COP. During substance of the marriage, the wife (respondent) established an
estate agency, which became very successful. She and her husband (applicant) had equal shares
in the estate agency.
At some point they agreed that the appellant would transfer his shares in the business to the
respondent so that she could obtain a tax benefit as a married woman.
They agreed that he could get his shares back whenever he wanted to, but when he asked the
respondent for the shares, she refused to do so.
The marital relationship broke down as a result of her persistent refusal, and the appellant
instituted divorce proceedings.
In a counterclaim, the respondent claimed a forfeiture order against the appellant in respect of his
shares and certain assets purchased with income for the estate agency.
The divorce order was granted against the respondent in the court a quo and the forfeiture order
was made against the appellant.
The appellant appealed against the forfeiture order.

Legal Question:
Should the forfeiture order be given? How should the courts approach the granting of a forfeiture
order?

Ratio decidendi:
The steps that should be followed when considering an application for a forfeiture order were set
out as follows:
1) In the first instance, it must determined that if the party against whom the order is sought
will be benefited if the order is not made (this is a question of fact)
2) If the first question is in the affirmative, the court must determine if that person will be
unduly benefitted if the order is not made (this involves a value judgement to answer)

The court found that the appellant was not the only party to blame for the divorce, but that the
respondent had also contributed to the circumstances that lead to the breakdown of the marriage.
The court a quo had argued that the husband had made very little contribution to the company, and
thus it was fair that he be denied the shares. This was found to be an incorrect line of thought as
the parties were married in COP and thus by the marriage’s nature they are expected to share in
each other’s financial prosperity.
The court also found that during the first twenty years of the marriage, the appellant had been the
main breadwinner, and after the respondent’s business’s success he still continued with his own
employment and business.
It was held that the appellant would not be unduly benefited if a forfeiture order was not granted.

Court order:
The appeal was successful and the forfeiture order was dismissed.

Relevancy:

The court must exercise a discretion in view to the three factors listed in S 9 of the Divorce Act.
The court held that all three factors had to be taken into account, but that they were not cumulative
in nature and that S 9 did not require the presence of all three.

The court further held that the sight must not be lost of the specific matrimonial property system.
The court a quo misdirected itself in finding that it was unfair to allow the husband to share in the
wife’s business, as the basic nature of COP is that spouses share in each other’s financial
prosperity - even when they made no direct contribution towards its attainment.

23
An order of forfeiture of benefits will only be given if there is a clear indication that one spouse will
unduly benefit and cannot be made purely on the basis of fairness.

If a court grants a forfeiture of benefits against one of the spouses, such a spouse cannot lose
assets that s/he brought into the marriage.
Forfeiture only applies to benefits obtained from the marriage which a spouse would not otherwise
have had. A spouse would thus only lose his/her right to share in the assets that the other spouse
brought into the marriage or assets that were obtained through the labour of the other spouse.

The court may grant an order of complete forfeiture — where one spouse loses everything except
what they brought into the marriage.
The court may also grant an order for partial forfeiture — in such a case the spouse only forgets a
specific amount, particular asset, or certain percentage of the estate.

24
Beaumont v Beaumont 1987 (A)
Facts:
Parties married out of COP in 1964. At the time neither the husband (appellant) nor the wife
(respondent) had any assets.
During the course of the marriage, the appellant became a successful businessman. The
respondent hard worked from time to time during the earlier part of the marriage, but as the family
grew, she attended to the household and raised the children.
She also assisted the appellant in he running of his business for almost 20 years, without pay.
In 1985, the parties were divorced. At the time the appellant’s net estate was worth R450 000 while
the respondent had assets to the value of R10 000.
The order of divorce was granted, and the appellant was ordered to pay R150 000 to the
respondent in terms of S 7(3)-(6) of the Divorce Act. The appellant appealed against this order.

Legal Question:
How does the court determine if a redistribution order should be given?

Ratio decidendi:
According to the court, S 7(4) ‘contains two conjoined jurisdictional preconditions’ which must be
complied with before a court can grant an order for the redistribution of assets.
The first is that the one spouse must have contributed to the other spouse’s estate. This is purely a
question of fact.
The second is that because of this contribution it must be ‘equitable and just’ for the court to grant
the order. This requires the exercise of a purely discretionary judgment in equity.

The court rejected the application the ‘one third starting point’ in RSA law, which implies that assets
of both spouses should be added together and the spouse with the smaller estate should be
awarded one third of this total unless there are reasons for departing from this principle.
The judge held that this starting point would undermine the flexibility that was deliberately granted
to the courts by the legislature and that it therefore needed to be rejected.
A court should thus be able to exercise its discretion in a manner unrestrained by any guidelines.

The court confirmed that there is an interrelationship between S 7(2) and S 7(3) of the Divorce Act.
This implies that then a court decides that an order for maintenance is to be granted to a spouse in
terms of S 7(2), this can have an impact on the nature or extent of a redistribution order (S 7(3)).

The court held that the clean break principle should only apply in SA if the circumstances permit it.

It was recalled that fault-based divorce was abolished, but that fault (or misconduct) does still
however have a role to play as far as the patrimonial consequences of divorce are concerned.
In this case the court held that our courts should adopt a conservative approach in assessing a
party’s misconduct as a relevant factor under S 7(5) and that misconduct should be considered
only where there is conspicuous disparity between the conduct of the persons involved.
In casu the appellant had assault his wife, used abusive language towards her and had a
relationship with another woman.

The court held that S 7(4) is widely phrased: ‘in requiring a contribution to be made directly or
indirectly… by the rendering of services, or the saving of expenses… or in any other manner’.
This meant that in performing her ordinary duties of looking after the home and caring for the
family, the wife had complied with contribution precondition set by the act.

Court order:
The court dismissed the appeal, finding that the redistribution order should be confirmed and the
appellant was order to pay R150 000 to the respondent.

25
Kritzinger v Kritzinger 1989 (A)
Facts:
The husband and wife were married out of COP in 1967.
The husband instituted a claim in terms of S 7(4) on the basis that during the course of the
marriage he had, in the interests of advancing the appellant’s career, decline to accept an offer to
take up a post in New York.
In forfeiting the chance to be promoted, the husband alleged that he had contributed indirectly to
the maintenance or increase of the appellant’s estate.

Court order:
Husband failed to convince the court that he had contributed to the maintenance or increase of the
wife’s estate.

Relevance:
A claim and counterclaim for the redistribution of assets are separate actions which should be
considered separately unless the facts relevant to both claims are so inextricable interrelated that a
globular approach is the only possible one.

As a general rule, a person who claims for a redistribution of assets must prove that the
contribution upon which s/he replies was a positive contribution that actually caused the
maintenance or increase of the other spouse’s estate. An omission to do something (e.g. a
sacrifice of a more lucrative career) which was not accompanied by a contribution as envisaged in
S 7(4) would not suffice.


26
Bezuidenhout v Bezuidenhout 2005 (SCA)

Facts:
Appellant (husband) and respondent (wife) were married with complete separation of property in
1975. At the time nether party had any assets worthy of mentioning.
The marriage was happy for approx. 25 years, with the parties being partners in a prosperous
business that led to the parties accumulating substantial wealth.
During 2002 the respondent left the joint household and instituted divorce proceedings in the Cape
High Court. At this point the appellants estate was worth R24 million and the respondent’s R8
million.
The respondent claimed she was entitled to a half share of the combined value of both of their
estates.
The court a quo relied on English law and held that an order for redistribution should proceed from
the starting point that the assets of both parties should be combined and divided equally between
both parties.
The court a quo held that a 50:50 starting point should be applied when a court was required to
grant a distribution order. As a result, the court a quo awarded the respondent R7.8 million.

Legal Question:
Does the English Law principle of a starting point have validity in South Africa?

Ratio decidendi:
The SCA reject the 50:50 starting point adopted by the court a quo.
According to our law, marriage can only be out of community property if the parties expressly
choose this system, which is different to the English Law position. This type of marriage could
result in unfairness, which is why S 7(3) was enacted.
The SCA also held that the legislature’s aim is to limit the court’s discretion in interfering with
contractual election (good or bad) made by the parties when they entered into the marriage. For
example, the courts are only allowed to apply S 7(3) to marriages entered into before the
commencement of the Matrimonial Property Act 88 of 1984.
A court did not therefore have the power to treat marriages out of COP as if they were marriages in
COP.
The ‘starting point’ English Law principle would also be in conflict with the decision made in
Beaumont v Beaumont.
The court also found that firstly, it was the appellant’s efforts that caused the business to be
successful, and secondly, since the success of the business was dependant on the efforts of the
appellant, he was also, indirectly, responsible for whatever resulted from the respondent’s efforts.
The court reasoned that both parties had contributed substantially to the business, but the
comparable efforts (comparable as they were both aimed at the same goal) were such that the
appellant was much more influential in achieving this goal.

Court order:
The appeal was successful and the amount to be transferred to the respondent was reduced to
R4.5 million.


27
Badenhorst v Badenhorst 2006 (SCA)
Facts:
In the court a quo the respondent (husband) sued his wife (appellant) for a decree of divorce and
ancillary relief. The wife instituted a counter claim in terms of S 7(3), saying that 50% of the value
of the respondent’s estate should be transferred to her. The husband contended however that
certain assets (farm) formed part of a trust.
The wife argued that the assets formed part of the husband’s estate, and since he controlled it, the
trust was in effect his alter ego.
The court a quo held that the assets of the trust were to be disregarded for purposes of the
redistribution order.

Legal Question:
Do assets in a trust form part of a party’s estate when considering a redistribution order?

Ratio decidendi:
It was found that it is wrong to speak of a trust as a separate legal entity. It is neither a person, nor
a entity as the assets and liabilities in a trust vest in the trustee.
To succeed with a claim that trust assets be included in the estate of one of the parties, there must
be evidence that such a part controlled the trust and but for the trust would have acquired and
owned the assets in his/her own name.
Control of the trust must be de facto and not de iure. To determine whether a part has such control
regard must be had to both the terms of the trust deed, and to the evidence how the affairs of the
trust were conducted during the marriage.
In casu the husband was in full control of the assets of the trust. He seldom consulted the co-
trustee and paid scant regard to the difference between assets of the trust and his own.
The court held that it was evident that, but for the trust, ownership of all the assets would have
been vested in the husband.
In Jordaan v Jordaan 2001 (CPA) the facts before the court showed that vast amounts of money
flowed between various trusts of the husband and himself without any formal decision to that
effect. Loans had been made available to him by the trusts without any formal decision by the
trustees. In this situation the trust can actually be considered as the husband’s alter ego. The court
consequently held that it is equitable and just to take the assets of the trust into account when
deciding what the scope of the redistribution order should be.

Court order:
The court ruled that the value of the trust assets should have been added to the husband’s estate.
The decisions of the court a quo to exclude the assets was misdirection, and thus the appeal was
successful.


28
Ryland v Edros 1997 (C)
Facts:
Marriage by Muslim rites was terminated by the husband. The wife claimed the following based on
Islamic principles (Sahfi’i school): arrear maintenance, a consolatory gift (because he divorced her
without just cause) and a share in the growth of his estate.

Legal Question:
Two preliminary questions:
Is it appropriate for the court to pronounce upon matters of religious law as the courts usually avoid
being entangled in doctrinal issues?
Is the court precluded from enforcing the terms of the contractual agreement between the parties
due to existing judicial precedent?

Ratio decidendi:
Court held that, as a matter of principle, courts would not adjudicate a doctrinal dispute between
two factions of a religion.
However, where the parties agree on the particular religious doctrine that does not require any
interpretation by the civil courts, the court can make a finding as there is no doctrinal
entanglement.
Court found that the Constitution changed the basic values and sense of justice of the community
and that the change justified the overturning of the earlier judicial precedent in Ismail v Ismail.
Ismail v Ismail had held that a claim founded in an Islamic marriage is unenforceable as it was
contrary to public policy on the basis that it is potentially polygamous. In Ryland, the court
confirmed that this was no longer the case.
Court in casu held that the marriage (which was monogamous) adhered to accepted norms and
customs that are morally binding upon society at large. The contractual terms of the marriage were
not unlawful and were boni mores, and thus could be enforced.
Thus, enforcing the contract would not be contrary to principles and institutions of SA law. It was
even said that it was contrary to SA law for one group to impose its values on others.

Court order:
Husband liable for the following (according to contractual obligations arising from the Islamic
marriage):
Arrear maintenance of three years including a period of three months after the divorce, as well as
the prescribed consolatory gift as the dissolution of the marriage was unjustified. However, the wife
was not entitled to an equitable share of the growth of the ex-husband’s estate as there was no
evidence that this custom prevailed among in the Islamic community in the Cape.

Relevance:
Although the court did not recognise the marriage as legal, it found that contractual obligations
arising from a religious marriage are enforceable in the civil courts, provided that the marriage is
monogamous in nature.


29
Khan v Khan 2005 (T)
Facts:
Parties were married in terms of Islamic rites and the marriage was polygynous.
The wife argued that there was a legal duty on her husband to maintain her during the existence of
the marriage, and she was entitled to claim the maintenance in terms of the Maintenance Act 99 of
1998 as the duty fulfilled the requirements of S 2(1) of the Act.

Legal Question:
Does this particular relationship give rise to a duty of support?

Ratio decidendi:
Court noted that the aim of the Maintenance Act was to establish a fair and equitable maintenance
system premised on the fundamental rights contained in the Constitution.
In addition, common law duty of support was a flexible concept that could cover a wide range of
relationships.
Court noted that the duty to support is not dependent on a formal marriage, but on a family
relationship. A polygamous marriage, accepted by the tenets of a major faith, was a type of family
that had to be protected by family law.
Court noted that the purpose of the Maintenance Act would be frustrated if partners to a
polygamous marriage were excluded from the protection offered by the Act, just because the legal
from of their relationship was not consistent with the Marriage Act.

Court order:
Court found that partners in a Muslim marriage, married in accordance with Islamic rites, whether
monogamous or not, were entitled to maintenance and therefore fell within the ambit of the Act.

Relevance:
Court confirmed the extension of the enforcement mechanisms of the Maintenance Act 99 of 1998
to wives in a de facto polygynous marriage.

30
Daniels v Campbell 2004 (CC)
Facts:
Daniels is the surviving spouse of a monogamous Islamic marriage. Her husband died intestate
and the main asset in the deceased estate was a modest house in a low-income suburb of Cape
Town.
He had lived in the house for 30 years.
Although her husband bought the house, she contributed substantially to the household expenses,
including the house.
As her marriage was not recognised in SA law, she did not qualify as a spouse defined in the
Intestate Succession Act 81 of 1987 or the Maintenance of Surviving Spouses Act 27 of 1990 and
thus could not receive any benefit from her late husband’s estate in terms of these statutes.
She applied to the court to be declared as a spouse for purposes of these statutes as the word
spouse must be interpreted to include a spouse from an Islamic marriage.
In the Alternative she asked for the statuses to be declared unconstitutional to the extent that they
discriminated unfairly against Muslim marriages.

Court order:
Court found that the Maintenance of Surviving Spouses Act and the Intestate Succession Act
applied to de facto monogamous Islamic marriages

Relevance:
Due to this decision, a surviving spouse to a (purely religious) Muslim marriage will be able to claim
maintenance and to inherit intestate form the deceased spouse’s estate.

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Hassam v Jacobs NO and Others 2009 (CC)
Facts:
Deceased was married to two women simultaneously in accordance with Muslim rites. He died
intestate.

Legal Question:
Was the exclusion of women in a polygynous Muslim marriage from the definition of S 1 of the
Intestate Succession Act Constitutional?

Ratio decidendi:
Exclusion of widows in polygynous Muslim marriages from the protection of S 1 of the Intestate
Succession Act 81 of 1987 is constitutionally unacceptable, because it excludes the wives simply
on the prohibited grounds of religion, gender, and marital status.
It would be unjust to grant a widow in a monogamous marriage the protection offered by the Act
and to deny the same protection to a widow or widows of a polygynous Muslim marriage.
Discrimination on each of the listed grounds in S 9(3) of the Constitution is presumed to be unfair
unless justified.
The exclusion of widows from the protection of the Act limits their rights under S 9 of the
Constitution unjustifiably.

Court order:
Court found S 1 of the Intestate Succession Act unconstitutional and ordered that the Act be
amended to make provision for a share of the inheritance by all the wives.

Relevance:
Court extended the application of the statute to polygynous Islamic marriages.

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Amod (Born Peer) v Multilateral Motor Vehicle Accidents Fund 1999 (SCA)
Facts:
Muslim widow claimed compensation from the Multilateral Motor Vehicle Accidents Fund (now
RAF) in terms of the applicable legislation for the loss of support as a result of the death of her
husband to whom she was married in terms of the Islamic faith (but not in terms of the civil law).

Court order:
SCA extended the dependant’s action for loss of support to a spouse in a de facto monogamous
Islamic marriage as the deceased husband had a legal duty to support the claimant (his wife) in
terms of the tenets of the Islamic faith

Relevance:
As there is a duty for a Muslim husband to maintain his wife during the subsistence of the
marriage, the wife would be entitled to compensation where the husband passed away due to the
negligence of another.

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Rose v Rose 2015 (WCC)
Facts:
Husband entered into two marriages: a civil marriage in the 70s that still subsisted, and a
subsequently Islamic marriage with another women.
The second (Islamic) marriage was terminated by divorce and later annulled by the Muslim Judicial
Council.
Muslim (ex)-wife claimed proprietary relief in terms of S 7(2) and (8) of the Divorce Act (post
divorce maintenance and a share in the pension interests) as a consequence of their Islamic
marriage ending in divorce.

Legal Question:
Was the second (Islamic) marriage valid in light of the poor existing civil marriage and whether that
would be a bar to the proprietary claim by the Muslim ex-wife?

Ratio decidendi:
The court referred to the CC judgments in Daniels and Hassam, and argued that question is not
the validity of the marriage, but whether the intended protection of a statue (in casu the Divorce
Act) should be withheld from a particular relationship (in casu Islamic marriage).
Divorce Act does not define ‘marriage’.
The court noted that it would be anomalous (abnormal) to extend the benefits of the Intestate
Succession Act and the Maintenance of Surviving Spouses Act to Islamic spouses by arguing that
they fall within the definition of ‘spouse’ but not include those marriages in the definition of
‘marriage’ in the Divorce Act.
With regard to the question whether the existing civil marriage and the dissolution by the MJC are
a bar to the claim, the court argued that the Islamic marriage rendered that marriage polygamous.
Relying on Hassan the court found that distinguishing between monogamous and polygamous
Islamic marriages would be unjustifiable unfair discrimination and that polygamous spouses are
entitled to their dignity being respected.
In addition, a marriage (contemplated in the Divorce Act) is not limited to those solemnised under
the Marriage Act but would, for example, include a marriage solemnised under the laws of a foreign
state, which may potentially be at odds with SA common law.

Court order:
Court held that a marriage as contemplated by the Divorce Act must be considered or interpreted
to include a Muslim marriage and that it would be unconstitutional to afford protection to spouses in
monogamous Muslim marriages, but not those in polygamous Muslim marriages.
Court ruled that first defendant’s prior civil marriage, although it might have the consequence that
the plaintiff’s subsequent Islamic marriage to the first defendant was to be considered to by
polygamous, could no be held to constitute a bar to any claim the plaintiff might have to the relief
sought by her.

Relevance:
Judgment extends the use of the Divorce Act to Islamic divorces. However, the judgment is
regarded as wrong in law (Heaton and Kruger).
The rights of the civil marriage are monogamous in nature and any subsequent ‘marriage’ would
be void. And as this Islamic marriage is void, the Divorce Act could not apply.
Heaton also notes that it is unclear if the Islamic marriage was dissolved in terms of the Divorce
Act? If not, it seems as if the court allowed the parties to pick only certain sections of the Divorce
Act to apply to their divorce and not the full statute. There is no indication whether the marriage
was dissolved in terms of S 3 of the Divorce Act.

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Singh v Ramparsad 2007 (D&CLD)
Facts:
Parties married according to Hindu religious tradition, but the marriage had broken down
irretrievably.
Wife sought to have her marriage declared legal in terms of the Constitution, the Marriage Act, and
the Divorce Act 70 of 1979 so that religious marriage would in future be recognised under these
statutes.
It was argued that the non-recognition of Hindu marriages violated her constitutional rights to
equality and dignity. If the marriage is then recognised, she sought a decree of divorce in terms of
the Divorce Act.

Legal Question:
Should Hindu marriages be recognised in the above mentioned Acts?

Ratio decidendi:
Court confirmed that Hindu spouses are entitled to register their marriage in terms of the Marriage
Act if they wanted the official sanction of the State. Marriage Act does not discriminate on the basis
of religion since it was of uniform application to Christians, Hindus, Jews, and Muslims.
Requirements of the Marriage Act, when considered objectively, also did not limit the dignity of any
person. As her constitutional rights had not been compromised neither the Marriage Act nor the
Divorce Act was declared unconstitutional.
In addition, if the court granted her request for a divorce, the court would be interfering in
theological issues which might cause offence to members of the Hindu community - especially
since the parties elected to practice a specific faith and looks vows which did not tolerate divorce.
Court noted that where spouses choose not to register their marriage in terms of the Marriage Act,
the marriage, although lawful, would not be recognised and enforced in the SA courts.

Court order:
Court dismissed the questions of the constitutional validity of the Acts on the grounds claimed by
the applicant/plaintiff. The decree of divorce was also not granted.

Relevance:
Court confirmed that a marriage concluded in accordance with Hindu rites that has not in addition
been solemnised as a civil marriage in terms of SA law has no legal effect in the courts.



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Govender v Ragavayah 2009 (D)

Facts:
Spouses were married in terms of Hindu custom and rites and three years later the husband died
intestate. Marriage was not registered in terms of Marriage Act 25 of 1961.

Legal Question:
Who should inherit the estate? The wife, or the parents of the deceased?

Court order:
Using Daniels, Amod, and Hassam, the court extended the application of the Intestate Succession
Act to a widow whose spouse to whom she was married to a monogamous Hindu marriage, died
intestate. The word ‘spouse’ as used in the Intestate Succession Act 81 of 1987 was read to
include a surviving partner to a monogamous Hindu marriage

Relevance:
Intestate Succession Act applied to de facto monogamous Hindu marriages.

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Prag v Prag 2009 (Wynberg Maintenance Court) [Unreported]

Facts:
Spouses were married in terms of Hindu custom 53 years ago yet departed two years before the
court hearing. The wife left the matrimonial home.

Court order:
Court accepted that there is a maintenance duty on the husband to support his wife in terms of
Hindu custom. Court was in favour of upholding the maintenance rights of a spouse - also those
spouses married in terms of a religious marriage. In light of the duty to maintain, the Maintenance
Courts may be used to enforce the maintenance duty.

Relevance:
Court confirmed the extension of the enforcement mechanisms of the Maintenance Act 99 of 1998
to wives married in terms of a Hindu marriage - even where she leaves the matrimonial home
voluntarily.

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