Case  CCT 95/19
[2020] ZACC 09

Judgement Date:  26 May 2020

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 Tuesday, 26 May 2020 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Supreme Court of Appeal (SCA). The matter concerns the question whether a contract concluded by married persons, which departs from the terms of their antenuptial contract, is valid and enforceable. In particular, it involves the validity and enforceability of a postnuptial agreement entered into by the parties during their marriage, without court supervision. Another question is whether a proper interpretation of section 21(1) of the Matrimonial Property Act 88 of 1984 (MPA), proscribes the enforceability of agreements entered into by spouses (who are married out of community of property) that were not entered into in contemplation of a divorce.

On 28 August 1993, Mrs Mans (the applicant) and Mr Mans (the respondent) were married to each other out of community of property with the exclusion of the accrual system. During their marriage, the applicant drafted an agreement (the agreement) which purported to set aside certain terms of the antenuptial contract and to entitle the applicant to half of the respondent’s estate and for him to pay her maintenance. It is common cause that the respondent signed the agreement on 10 November 2014 and that subsequent to this, the parties continued to live together as husband and wife. It was only on 30 November 2014 that the respondent indicated that he wanted a divorce.

The respondent issued summons for divorce in the Regional Court, Mpumalanga (Regional Court). The applicant filed a counterclaim seeking, among other things, a declaratory order that the agreement was valid and binding, and that it was signed in settlement of all claims or disputes that might emanate from the divorce action. The Regional Court dismissed the applicant’s counterclaim. It held that the agreement was not entered into in contemplation of a divorce and that it would be against the law and public policy to allow parties to opt out of their marital regime without the mechanism as provided for in section 21(1) of the MPA. The Regional Court granted a decree of divorce. The applicant applied to the High Court, Gauteng Division, Pretoria (High Court) for leave to appeal. The High Court upheld the appeal and overturned the decision of the Regional Court. It held that the agreement was enforceable since it had been concluded in contemplation of a divorce with its purpose being to constitute a settlement agreement.

The respondent applied to the SCA to appeal the decision. The SCA noted that since the parties had not approached a court in terms of section 21(1) of the MPA to sanction the change, the central issue was whether the agreement was made in contemplation of a divorce. It held that the applicant failed to prove that the agreement was concluded in contemplation of a divorce. Therefore, the SCA upheld the appeal and set aside the order of the High Court.

Aggrieved by the decision, the applicant approached the Constitutional Court for leave to appeal. On 2 August 2019, the Chief Justice issued directions calling on the parties to file written submissions on the following: jurisdiction; interests of justice; and whether a registered agreement could be overridden by a subsequent unregistered agreement. The parties filed written submissions and the matter was determined without oral argument.

The applicant submitted that the matter engages the Court’s jurisdiction. While not disputing the factual findings of the SCA, the applicant argued that the matter pertains to whether there is any legal rule or principle that prohibits spouses who elect to retain their independent estate after marriage from concluding agreements, other than those in contemplation of a divorce. She submitted that if this is the case, then the issue is whether this position infringes one’s dignity, in particular one’s freedom to contract. The applicant further argued that if these infringements are established, these amount to discrimination on the basis of the elected marital regime, and that these infringements are not reasonable and justifiable limitations in terms of section 36 of the Constitution. On the other hand, the respondent contended that since the applicant accepts the finding of the SCA that the contested agreement is not an agreement in contemplation of a divorce, this, on its own, should be the end to the matter. He further argued that since the pleadings were different from those of the other courts, the constitutional issues were raised for the first time before the Constitutional Court and this will be prejudicial to him.

In a unanimous judgment penned by Mhlantla J (with Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Theron J, Tshiqi J and Victor AJ concurring), the Constitutional Court held that while the matter engaged the Court’s jurisdiction, it was not in the interests of justice to grant leave to appeal. This was so because the applicant introduced novel issues before the Court. She raised constitutional issues in terms of contractual freedom, dignity and unfair discrimination and also sought a constitutional compliant interpretation of section 21(1) of the MPA. These issues have not been ventilated in the other courts and this would in effect render the Constitutional Court a court of first and last instance. Furthermore, the Court held that the SCA did not prescribe a bar on all agreements between spouses married out of community of property. The finding only related to this agreement and it did not affect the parties’ capacity to contract in respect of other agreements. In the result, the application for leave to appeal was dismissed with each party to pay his or her own costs.

The Full judgment  here