Case CCT 315/25
[2026] ZACC 04
Hearing Date: 10 december 2025
Judgement Date: 30 January 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 19 December 2025, the Constitutional Court issued an order in an urgent application granting leave to appeal and upholding the appeal against a judgment of the Competition Appeal Court (CAC). On 30 January 2026 at 10h00, the Constitutional Court handed down judgment containing the reasons for that order.
This case concerns Lewis Stores (Pty) Limited’s (Lewis) attempt to intervene in large merger proceedings between Pepkor Holdings Limited, the acquiring firm, and Shoprite Holdings Limited, the target firm. The Competition Commission recommended the conditional approval of the merger, which the Competition Tribunal was required to consider. During those proceedings, Lewis applied to intervene, contending that the merger raised serious competition concerns for low- and medium-income furniture consumers.
The Tribunal granted Lewis limited participatory rights in an order issued on 23 July 2025. On 5 September 2025, the Tribunal handed down reasons for that order, holding that Lewis had advanced a credible, merger-specific theory of harm, that aspects of the Commission’s investigation appeared insufficiently probed, especially in relation to local market overlaps, the competitive constraints in the low-income furniture market, and the dynamics of store location and credit offerings, and that Lewis had access to information that could meaningfully assist the Tribunal.
The merger parties appealed to the CAC, contending that Lewis had failed to demonstrate unique or otherwise unobtainable information, that Lewis’ participation would inevitably introduce substantial delay, and that the Tribunal had misconstrued the legal test for intervention under section 53(c)(v) of the Competition Act. The CAC upheld the appeal on 8 October 2025.
Lewis thereafter sought leave to appeal in this Court. The issues before this Court were:
- (a) whether leave to appeal should be granted;
- (b) whether the CAC applied the correct test for intervention in merger proceedings, and, if not, what the correct test is; and
- (c) whether the CAC impermissibly interfered with the Tribunal’s discretion.
In a unanimous judgment penned by Majiedt J, the Court held that this matter plainly engaged this Court’s general and constitutional jurisdiction. It raised an arguable point of law of general public importance concerning the scope of the Tribunal’s exercise of discretion, and the proper test for intervention in large merger proceedings, a point of law whose arguability is firmly established by the divergent outcomes reached by the Tribunal and the CAC. This Court agreed with submissions made by the applicant, that Constitutional jurisdiction was engaged, as the CAC either introduced a novel intervention test or applied the test incorrectly. This amounted to an error of law that implicated a litigant’s right of access to courts under section 34 of the Constitution.
The second question this Court considered was whether the CAC applied an incorrect test for the intervention of third parties in large merger proceedings. Section 53(c) of the Act permits participation in merger hearings by specified parties, and by any other person recognised by the Tribunal. Rule 46 of the Rules of the Competition Tribunal (Rules), allows a person with a material interest in the proceedings to apply to intervene, subject to any limitations necessary to ensure orderly and expeditious proceedings.
This Court, looking at its previous jurisprudence, and that of the CAC over the years, summarised the settled test for intervention as requiring a prospective intervener to show either:
- (a) a material interest in the proceedings; or
- (b) an ability to assist the Tribunal.
The CAC’s previous jurisprudence has consistently held that intervention in merger proceedings does not require a material and substantial interest. In the case Community Healthcare, endorsing the CAC’s finding in Anglo SA Capital, the CAC held that a party may be admitted as a party to merger proceedings by demonstrating an ability to assist the Tribunal in applying the purposes of the Competition Act. In Northam, reaffirming its decision in Africa Data Centres, the CAC held that the Tribunal must weigh the likely assistance of a prospective intervener against the need for expedition, and that the scope of participation must enable constructive contribution to the two theories of harm which have been accepted as the basis of its rights of participation. In Africa Data Centres and Sunrise Energy, the CAC reiterated that intervention is not automatic, and must be justified by evidence showing that the applicant will assist the Tribunal in its enquiry.
This authority shows that the settled test for intervention asks whether the prospective intervener has demonstrated, through credible evidence, either a material interest in the proceedings or an ability to assist the Tribunal in adjudicating the merger. In this case, however, a far more stringent novel or, at best, erroneous test was introduced by the CAC.
It required an intervening applicant to demonstrate possession of special or unique insights that could not be obtained from any other source.
This Court concluded that this created an unworkable and well-nigh impossible test for intervention. This is especially so given that, at the intervention stage, the Tribunal does not and should not determine the correctness of the intervener’s averments, nor resolve disputes about market dynamics or the anti-competitive effects of the merger. Those matters are properly addressed at the merger hearing itself. If intervention were permitted only where the Tribunal would otherwise lack access to the evidence, intervention would be rendered impossible, given the Tribunal’s inquisitorial powers to subpoena witnesses or direct further investigation. It is therefore untenable to refuse intervention on the basis that any investigative gaps could be cured without it. The proper enquiry is whether the application was reasonably instituted when brought.
The CAC held that Lewis offered only generalised market descriptions and failed to identify any specialised knowledge that could assist the Tribunal. However, in its founding affidavit, Lewis outlined the parties’ operations in the national furniture retail market, supported by maps, graphs, statistics and factual data, identified material deficiencies in the Commission’s analysis of market definition and competitive effects, and explained the specific contributions it sought to make as an intervener. This Court concluded that in light of the detailed, fact-based evidence presented by Lewis, the Tribunal was justified in concluding, through a carefully reasoned application of the settled legal test, that the requirements for intervention had been satisfied.
This Court concluded that it was not necessary to determine whether the CAC formally introduced a new test or misapplied the existing one. In either event, it impermissibly elevated the threshold for intervention beyond that contemplated by section 53(c)(v), by requiring proof of unique or otherwise unobtainable evidence. That error sufficed to justify setting aside its decision. Applying the correct test, this Court held that Lewis made out a case for intervention, as the Tribunal correctly found.
This Court also dealt briefly with the CAC’s impermissible interference with the Tribunal’s exercise of its discretion to grant Lewis participatory rights. The CAC has repeatedly affirmed – in the cases of Sunrise Energy, Imerys and Schumann Sasol – that the decision whether to permit intervention lies within the Tribunal’s discretion. In doing so, deference is owed to the Tribunal as a specialist body with a thorough grasp of the policy considerations relevant to merger analysis. The Tribunal’s discretion may be interfered with only where it was not judicially exercised, was based on wrong principles or misdirection, or produced a decision that no properly directed tribunal could reasonably have reached.
The CAC held that the Tribunal did not consider at all rule 46 of the Tribunal Rules, and the prescription that the Tribunal decline to admit an intervener if it provides evidence already brought before it by another participant. That conclusion was incorrect. The Tribunal expressly referred to rule 46 and identified material gaps in the Commission’s assessment, including local market overlaps, pricing interactions and the role of credit.
Clearly therefore, the Tribunal did consider the shortcomings in the Commission’s assessment and held that Lewis’ information could fill those shortcomings.
The CAC was therefore not entitled to substitute its own view of the usefulness of the evidence for that of the Tribunal. The CAC accordingly erred in interfering with the Tribunal’s lawful and rational exercise of its discretion.
The final issue concerned the ambit of the Tribunal’s participation order. The merger parties contended that the Tribunal improperly outsourced its statutory merger control functions to Lewis, granted intervention rights in respect of issues not sought in the intervention application, acted inconsistently by granting intervention in relation to countervailing power while stating in its reasons that this aspect was denied, and dismissed intervention on public interest grounds while nonetheless granting Lewis access to the entire merger record, including material relating solely to public interest.
This Court concluded that these wide-ranging criticisms were unfounded. Lewis’ notice of motion and founding affidavit in the intervention application made plain that it sought full participatory rights. The Tribunal admitted Lewis as a knowledgeable and comparable competitor and permitted participation on the basis that it could assist in understanding competitive dynamics and assessing unilateral theories of harm. Importantly, the Tribunal granted intervention within a defined and curtailed scope, limited participation to specified competition issues, and refused intervention on beds and mattresses, buyer power and public interest. Its order was carefully circumscribed, fact specific, and consistent with established intervention jurisprudence.
The Full judgment here
Case CCT 280/24 ; CCT190/25
[2026] ZACC 03
Hearing Date: 04 November 2025
Judgement Date: 23 January 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 23 January 2026 at 11h30 the Constitutional Court handed down a unanimous judgment authored by Justice Theron in two applications that were heard together.
The first application, CCT 280/24, was the Schultz matter. The applicants in Schultz sought condonation and leave to appeal against a judgment of the Supreme Court of Appeal. The second application, CCT 190/25, was the Cholota matter. The applicant in Cholota sought direct leave to appeal against a judgment of the High Court of South Africa, Free State Division, Bloemfontein.
In the Schultz matter, the first respondent, Mr Jonathan Schultz, approached the High Court of South Africa, Gauteng Division, Pretoria in 2022 after obtaining information that the National Prosecuting Authority (NPA) intended to seek his extradition from the U.S. He sought, amongst others, a declarator that only the Minister of Justice, in his capacity as a member of the national Executive, has the power to make extradition requests to foreign states. The Pretoria High Court dismissed Mr Schultz’s application. On appeal, the Supreme Court of Appeal reversed the High Court’s order and declared that the Minister of Justice, not the NPA, has the authority to request Mr Schultz’s extradition from the U.S.
In the Constitutional Court, the applicants in Schultz sought an order limiting the retrospectivity of the order of the Supreme Court of Appeal, and condonation for the late filing of their application for leave to appeal.
The Supreme Court of Appeal’s judgment in the Schultz matter became pivotal to the Cholota matter. Ms Nomalanga Moroadi Selina Cholota was extradited from the U.S. in 2024 following an extradition request made by the Director of Public Prosecutions (DPP). During a criminal trial in the Bloemfontein High Court, Ms Cholota raised four grounds in a special plea challenging the High Court’s jurisdiction over her on the basis that her extradition was unlawful. A trial-within-a-trial ensued. During her closing address, Ms Cholota’s counsel produced a copy of the Supreme Court of Appeal’s judgment in Schultz and argued that Ms Cholota’s extradition was made by the incorrect state functionary. The Bloemfontein High Court found that it was bound by that judgment and that, as a result, it did not have criminal jurisdiction over Ms Cholota.
In a unanimous judgment penned by Theron J (with Mlambo DCJ, Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Musi AJ, Nicholls AJ, Rogers J, Savage AJ, and Tshiqi J concurring), the Constitutional Court found that the Cholota matter engages its constitutional and general jurisdiction as the matter raises both key constitutional issues and arguable points of law of general public importance. The Court also found that direct leave to appeal should be granted, as it would be in the interests of justice to finalise the matter on an urgent basis.
On the merits of the Cholota matter, the Court held that the State’s right to be heard was infringed during the trial-within-a-trial, in that counsel for Ms Cholota raised the argument that Ms Cholota’s extradition was unlawful because it was issued by the NPA for the first time during her closing address. Advancing a new ground for a special plea during the closing address deprived the State of the opportunity to respond, in violation of section 106(3) of the Criminal Procedure Act. The Bloemfontein High Court erred in dismissing the State’s objection on this issue.
The second issue the Court considered was which state functionary possesses the authority to make outgoing extradition requests. The Court affirmed that the legal process of outgoing extradition requests, by its nature, functions at the intersection between domestic and international law. Domestically, the prosecuting authority usually initiates a prosecution and prepares the requisite documents for an extradition request. Internationally, the requesting state generally transmits the request to another state. Necessarily, the international stage of this process involves acts of external sovereignty.
In assessing the NPA’s powers in this process, the Court held that the final authority to make extradition requests to foreign states is not an implied power of prosecutorial authority. This is because the international stage of outgoing extradition requests entails sensitive diplomatic and foreign relations considerations, which fall squarely within the domain of the national Executive. In other words, the international stage of outgoing extradition requests cannot be entirely subsumed under prosecutorial proceedings, and the separation of powers principle forbids the NPA from controlling the entire process.
While the Court recognised the importance of prosecutorial independence, it found that prosecutorial independence does not license the NPA to exercise powers beyond its ambit of authority. The NPA possesses broad powers over prosecutorial proceedings, which cover much of the domestic stage of outgoing extraditions. As a domestic state organ, however, it cannot represent South Africa at a state-to-state level. Therefore, although the final authority to make outgoing extradition requests could affect domestic prosecutions, the Court found that the NPA cannot exercise the external sovereignty inherent in such requests.
Regarding the national Executive’s authority, the Court found that as the state organ clothed with the duty to exercise external sovereignty on behalf of the Republic, it is the appropriate functionary to make extradition requests to foreign states. The Executive cannot merely participate in the issuance of outgoing extradition by playing an administrative role akin to that of a “conduit” – it must apply its mind to the extradition request and exercise a concomitant discretion. The Court, however, held that the Supreme Court of Appeal erred by concluding that only the Minister of Justice can make outgoing extradition requests. That power is vested within the national Executive broadly.
Therefore, the Court concluded that in the case of Ms Cholota, the DPP did not have the power to make a request for her extradition. To the extent that the Bloemfontein High Court found that her extradition was, for this reason, irregular and unlawful, it was correct.
The Court next considered the status of the U.S. court order. The DPP argued that because Ms Cholota was extradited pursuant to an unchallenged U.S. court order, South African courts could not impugn that extradition. The Court found that argument to be misconceived. Ms Cholota challenged acts of South African officials in requesting her extradition, not the conduct of U.S. officials. South African courts are empowered to examine the lawfulness of the exercise of public power by South African officials, and the U.S. court order does not preclude such examination.
The Court next had to determine whether, despite the unlawfulness of her extradition, the Bloemfontein High Court nonetheless had jurisdiction over Ms Cholota. The Bloemfontein High Court’s sole basis for declining to exercise criminal jurisdiction was that Ms Cholota’s extradition was requested by the incorrect state functionary. It relied on S v Ebrahim for the principle that “if there were unlawful or improper conduct on the part of the organs or the functionaries of the South African State in foreign territory aimed at securing the presence of an accused in South Africa, the South African Courts are precluded from trying anyone for crimes committed within its borders”.
The Court found that there could be no doubt that the Ebrahim principle remains an important feature of South African law. The rule of law and the constitutional guarantee of procedural fairness in criminal cases must be jealously guarded. However, following a survey of foreign jurisprudence which considered the Ebrahim judgment, the Court found that, while Ebrahim established an important precedent, it does not mean that any irregularity in extradition proceedings, no matter how insignificant, should result in a court declining to exercise its criminal jurisdiction. Such reasoning is not supported by the facts of Ebrahim, and would not strike an appropriate balance between the concern for lawful process and the imperative to combat impunity. A court is only divested of its criminal jurisdiction in cases where the exercise thereof would bring the administration of justice into disrepute.
The Court found that in the Cholota case, the Bloemfontein High Court failed to recognise that Ms Cholota’s case differed from the facts in Ebrahim in material respects. Importantly, the NPA operated under the bona fide assumption that it had the necessary authority to request extradition. It was only after the delivery of the Supreme Court of Appeal’s judgment in Schultz that the NPA had to grapple with the question of whether it had authority to do so. There was no suggestion that, had the Executive and the NPA been aware of the correct legal position, Ms Cholota’s extradition would not have been requested correctly. Consequently, the Bloemfontein High Court erred in declining to exercise its jurisdiction over Ms Cholota on the sole basis that her extradition was requested by the NPA. For this reason, the appeal had to succeed.
In the Schultz matter, the applicants sought condonation for the late filing of their application for leave to appeal. The Court held that condonation is not there for the taking. The applicants filed their application for leave to appeal approximately three months after the 15-day deadline period prescribed by the Rules of the Constitutional Court had lapsed. A three-month delay is substantial, and the Court found that it had refused condonation for shorter delays in the past.
The Court found that the explanation for the delay proffered by the applicants left much to be desired. They blamed most of the delay on their misunderstanding that the Department of Justice and Constitutional Development intended to launch an appeal, and on difficulties they had in briefing counsel, given the State Attorney’s cumbersome briefing policy.
The Court found that neither of these reasons was satisfactory. A litigant cannot escape the obligation to comply with the Court’s rules on the mere allegation that it thought another cited party would lodge an appeal. The applicants abandoned their appeal in respect of the merits and instead only sought an order limiting the retrospective effect of the judgment of the Supreme Court of Appeal. The judgment, they argued, would result in catastrophic consequences for the administration of justice, as it potentially provides a basis for persons whose extraditions had previously been requested by the NPA to challenge and invalidate such extradition requests. This was the ground on which the NPA based its argument that the importance of the issue warranted granting condonation.
The Court found that, on the Ebrahim principle as articulated, a court ought not to decline to exercise its criminal jurisdiction on the sole basis that the accused’s extradition request was authorised by the NPA and not the Executive authority. This principle would hold true for any extradition request already made. Accordingly, even without the relief sought by the applicants to limit the retrospectivity of the Supreme Court of Appeal’s judgment, the harm they feared to the administration of justice is largely, if not completely, ameliorated. Accordingly, the NPA could not slip past the requirement of condonation by relying on the importance of the issue. Thus, condonation had to be refused and the application for leave to appeal had to fail on that basis..
The Full judgment here
Case CCT 202/24
[2026] ZACC 02
Hearing Date: 25 February 2025
Judgement Date: 21 January 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 21 January 2026, the Constitutional Court handed down judgment in an application for confirmation of an order of constitutional invalidity made by the High Court of South Africa, Gauteng Division, Pretoria. The High Court declared section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 (the Recognition Act) unconstitutional.
The matter started in the High Court as an opposed divorce between the applicant, VVC, and the first respondent, JRM. The second and third respondents are the Ministers of Justice and Constitutional Development and of Home Affairs, respectively. The Pretoria Attorneys Association was admitted as amicus curiae (friend of the court) in the High Court, but has not been admitted before this Court. The application is unopposed. However, at the direction of the Chief Justice, the second and third respondents have filed written submissions and presented oral argument, arguing for a finding of constitutional validity.
The parties were married to each other in terms of customary law in August 2011. In 2019, they decided to conclude a civil marriage and signed an antenuptial contract (ANC) in terms of section 10(2) of the Recognition Act. That contract provided that the civil marriage would be out of community of property and subject to the accrual system. They concluded the civil marriage in 2021, without dividing the joint estate created by the customary marriage.
In 2022, the first respondent sought a decree of divorce and enforcement of the ANC against the applicant. In response, the latter pleaded that the ANC was invalid, or in the alternative, if the ANC was held to be valid, then section 10(2) of the Recognition Act (the impugned provision) was unconstitutional. The basis pleaded for the alleged unconstitutionality was that the impugned provision permitted spouses married under customary law to change their matrimonial property regime from in community of property to out of community of property by mere written agreement and without judicial oversight.
The parties agreed to place the matter before the High Court which held that the agreement signed by the parties after the customary marriage could not constitute a valid ANC, as it was concluded during the subsistence of an existing marriage and had the effect of changing the matrimonial property regime without compliance with section 21 of the Matrimonial Property Act 88 of 1984 (MPA).
The High Court proceeded to decide the constitutional challenge. It held that section 10(2) of the Recognition Act was unconstitutional because it allowed spouses in customary marriages to change their matrimonial property regime without judicial oversight, permitting arbitrary deprivation of property and unfair discrimination, particularly against women married under customary law. The declaration of invalidity was suspended for 12 months, and a reading-in was ordered in the event that Parliament failed to cure the defect.
The High Court’s order was then referred to the Constitutional Court for confirmation.
The central issues before the Court were:.
- (a) the validity of the ANC;
- (b) the interpretation of the impugned provision;
- (c) the constitutional validity of the impugned provision; and
- (d) remedy.
The applicant supported the High Court’s reasoning and order on the basis that the impugned provision is constitutionally invalid, insofar as it permits a change in the matrimonial regime without the intervention or oversight of a court, to the prejudice of the economically weaker spouse and the creditors of the communal estate. The applicant submitted that the section contemplated the change of a customary marriage to a civil and that the customary marriage ceases to exist upon conclusion of the subsequent civil marriage, since it is replaced by the latter.
The applicant further contended that the impugned provision allowed spouses in customary marriages to conclude contracts that change their matrimonial property regime without judicial oversight, thereby permitting arbitrary deprivation of property in violation of section 25(1) of the Constitution. According to the applicant, the section also breached the right to equality envisaged in section 9(1) and (3) of the Constitution by depriving spouses in customary marriages of proprietary rights and other rights of protection offered to spouses in civil marriages, and that the persons prejudiced by the absence of this protection are predominantly black women.
Before this Court, the Ministers of Justice and Constitutional Development and of Home Affairs contend that the Recognition Act places spouses on an equal footing in their customary marriage, and contend that the customary marriage ceases to exist as it is subsumed into the civil marriage. Since the ANC does not operate retrospectively, so contend the Ministers, the patrimonial benefits which accrued during their customary marriage, are shared equally upon dissolution because, in terms of section 6 of the MPA, a marriage is dissolved either through divorce or death.
According to the Ministers, the High Court departed from an incorrect premise that the ANC is a postnuptial contract which requires judicial oversight. They submit that the High Court did not give proper consideration to the scheme and purpose of the Recognition Act and considered the constitutionality of the impugned provision. Lastly, regarding remedy, in their written submissions the Ministers contended that the period of suspension should be altered from 12 months to 24 months.
The First Judgment
The majority, the first judgment, penned by Majiedt J, (with Dambuza AJ, Goosen AJ, Mhlantla J and Tshiqi J, and Theron J concurring), declined to confirm the High Court’s order of constitutional invalidity, for the reasons set out below.
The first judgment emphasised the transformative purpose of the Recognition Act, enacted to remedy the historical non-recognition and marginalisation of customary marriages and to place them on an equal footing with civil marriages. Central to this purpose is the protection of spouses, particularly black women, through the default application of community of property and through judicial supervision of any change to matrimonial property regimes.
On the regulation of marital property, the first judgment held that the present customary marriage falls within the purview of section 21 of the MPA, as section 7(5) of the Recognition Act provides that section 21 of the MPA applies to customary marriages concluded after its enactment, provided the husband does not have more than one spouse. That section contains comprehensive requirements and steps to change the matrimonial proprietary regime. Parties are thus afforded the option of utilising the procedure afforded by section 21 of the MPA, and are compelled to use this provision for any change to their marital property regime to be effectual.
On the question of what happens to the customary marriage when the parties subsequently enter into a civil marriage, the first judgment held that the customary marriage is not dissolved. The first judgment concluded that that the later civil marriage subsumes the customary marriage. The contrary interpretation would entrench the historical discriminatory position and would be in conflict with the constitutional recognition and status of customary law.
The first judgment stressed that where spouses wish to change their matrimonial property regime at any stage during their marriage, section 21 of the MPA provides a clear and constitutionally compliant mechanism for doing so, with appropriate safeguards for creditors and vulnerable spouses.
On the interpretation of the impugned provision, the first judgment explained that the ambiguity in section 10(2) arose from the use of the words “of their marriage” at the end of the subsection without explicit reference to the customary marriage. The first judgment concluded that the latter part, “of their marriage”, must mean the parties’ customary marriage, because it is only prior to the customary marriage that an ANC could be concluded. This flowed from the nomenclature itself but also from sections 86 and 87 of the Deeds Registries Act, which refer to an “ante” nuptial contract. The first judgment held that to interpret the phrase otherwise would result in an absurdity.
The first judgment explained that, if it is accepted that the marriage relationship does not terminate in the course of the section 10(2) change, then it must also be accepted that the couple only has one marriage which came into being when the couple concluded a customary marriage. Therefore, the words “their marriage” could only be in reference to the customary marriage. A contrary interpretation would enable the execution of a postnuptial contract without judicial supervision, which would lead to an unconstitutional state of affairs.
The first judgment emphasised that the impugned provision must be interpreted purposively, within the context of the Recognition Act as a whole and with regard section 7(5). To interpret it otherwise would undermine the purpose of section 7(5) and the principle of judicial oversight in marital property schemes, and as the first judgment’s interpretation favours constitutionality, should be preferred.
Properly interpreted, section 10(2) simply confirms that a civil marriage concluded after a customary marriage will be in community of property unless there already exists an ANC that validly regulates the matrimonial property system of the marriage. It does not create an alternative route for changing matrimonial property regimes outside of court supervision. The first judgment rejected the notion that section 10 contemplates the termination of the customary marriage and the creation of a new marriage relationship. Instead, the first judgment held that the section provides for a change in the legal system governing an existing marriage, not the termination of that marriage. The first judgment confirmed that a customary marriage, can be dissolved only by death or by a decree of divorce in terms of section 8 of the Recognition Act.
On this interpretation, the Court held that the marriage between the parties was a single, continuous marriage that began as a customary marriage and later became governed by civil law upon the conclusion of a civil marriage. The change was declaratory rather than constitutive. The ANC concluded between the parties was therefore invalid, due to of the parties’ failure to observe the provisions of section 21 of the MPA.
The first judgment held that section 10(2), properly interpreted, did not permit a change in matrimonial property regime without judicial oversight, and therefore the constitutional concerns identified by the High Court did not arise.
The Constitutional Court declined to confirm the High Court’s order, making no order as to costs. The question of reading-in or suspension therefore did not arise.
The Second Judgment
The second (dissenting) judgment, authored by Rogers J (with Madlanga DCJ and Opperman AJ concurring), took the view that, on a proper interpretation of section 10(2), the word “marriage” has the same meaning in the three places where it is used in that subsection, namely the civil marriage contracted between spouses between whom a customary marriage already subsists.
The first judgment’s interpretation renders section 10(2) redundant as it is section 7(2) that determines whether the subsequent civil marriage is in or out of community of property, so section 10(2) does no work. Apart from this, section 10(3) refers to a marriage that is in community of property “as contemplated in [subsection 10(2)]”, plainly conveying that it is by operation of section 10(2), not section 7(2), that the marriage is in community of property.
The second judgment disagreed with the significance accorded by the first judgment to the heading of section 10. Section 10’s heading shows that the lawmaker saw itself as enacting provisions with real consequences. The second judgment’s interpretation accords with the plain meaning of clause 10(2)(b) in the preceding Bill. Section 10(2) as enacted omitted the reference in clause 10(2)(b) to dissolution, but for the rest the substance of clause 10(2)(b) was retained.
The second judgment took the view that it would be inconsistent with the purposes of the Act to regard the customary marriage as dissolved by the civil marriage. Only in the case of irreconcilable incidents would it be necessary to determine which marital system takes precedence. The second judgment found the first judgment to be unclear as to the effect of the civil marriage on the customary marriage.
The second judgment disagreed with the first judgment’s emphasis on the prefix “ante” in the expression “antenuptial contract” and concluded that “ante” in the context of section 10(1) means before the civil marriage.
The second judgment explained as follows the fate of the joint estate when a customary marriage in community of property is followed by a civil marriage out of community of property. The spouses could, in their pre-civil marriage ANC, deal with the assets in the joint estate. If, on a proper interpretation of the ANC, it is silent on the fate of the joint estate, the joint estate would continue, but there would be separate estates in respect of future assets as from the date of the civil marriage.
As to the weaker bargaining position of women, the Act is not aimed at granting redress for this phenomenon. On the first judgment’s interpretation, the superior bargaining position of men would simply be exercised at a different time or in a different way: either by way of an ANC executed before the customary marriage or by way of pressure to join in bringing an application in terms of section 21(1) of the MPA.
Even if section 10(2) could reasonably be interpreted as set out in the first judgment, the second judgment better respects the spouses’ contractual autonomy. By contrast, the first judgment sets at nought the spouses’ wishes as expressed in the ANC executed after the customary marriage but before the civil marriage. On the first judgment’s interpretation, spouses will be put to the expense of bringing section 21(1) applications.
Finally, and in regard to the constitutionality of section 10(2), the second judgment concluded that it was not unconstitutional. Neither of the spouses would have been arbitrarily deprived of property, and creditors are safeguarded by the same rules that apply when a community estate is dissolved by divorce. Although the High Court attached significance to judicial oversight in terms of section 21 of the MPA, the purpose of that section is to safeguard creditors, not weaker spouses.
The reasoning in the second judgment leads to the conclusion that the High Court’s declaration of constitutional invalidity should not be confirmed. The second judgment’s reasoning would have also led to the conclusion that the ANC concluded between these particular spouses was valid. However, the High Court for separate reasons declared the ANC invalid and unenforceable. Since there has been no appeal against that declaration, it must stand, and the divorce action must proceed on the basis that the ANC is invalid. The second judgment considered that the appropriate costs order is for the parties to bear their own costs in the High Court and in this Court.
The Full judgment here