IN THE SOUTH GAUTENG HIGH COURT
 (JOHANNESBURG)

		                                                            APPEAL CASE NUMBER: A5036			      	
CASE NO: 2009/21232

DATE:18/03/2011

In the appeal matter between:
		
RADEBE, BOBOZA ALPHEUS

RADEBE, NOMSA	First Appellant

Second Appellant	

And
		
SOSIBO, SIPHOSENKOSI EMMANUEL N.O.

THE MASTER OF THE HIGH COURT OF SOUTH AFRICA (SGHC) N.O.

THE REGISTRAR OF DEEDS	First Respondent

Second Respondent

Third Respondent	

JUDGMENT

SATCHWELL J:

Introduction

1.	This is an appeal against a decision  in this division   (per  Kekana AJ) which found that the applicant (“Mr Sosibo”) is the heir to  the entire  intestate estate  of his late wife (“Mrs Sosibo”).  Accordingly  the court a quo ordered that the final liquidation and distribution account prepared by the Master of the High Court  be set aside and  that Mr Sosibo was entitled to take transfer of certain  immovable property from   the deceased estate. 

2.	At issue is the status and import of certain provisions  in an antenuptial contract  entered into by Mr and Mrs Sosibo prior to their marriage and which provisions excluded   the  immovable property in question from the accrual  system  arising from their intended marriage as well as the impact, if any, of such property exclusion clause on the disposition of the  intestate estate of the late Mrs Sosibo.

3.	The parents of the late Mrs Sosibo, the appellants,  (Mr and Mrs Radebe) contend that  they are entitled to take transfer of  the  immovable property which was registered in the name of their late daughter  which she had excluded from the matrimonial  marital regime in  the  antenuptial contract and which, it is submitted, she had bequeathed or donated to them during her lifetime.

Background

4.	Mr and Mrs Sosibo were married on 11th November 2006. Their matrimonial regime was one of out of community of property subject to the accrual system. Mrs Sosibo died on the 28th December 2006. She left no written last will and testament. 

5.	Subsequent to Mrs Sosibo’s death, her husband was appointed executor of her estate. He instructed the firm , ‘ Accounting and Taxation Consulting CC’,  run by one Mr Van Vyk, to attend to administration of the deceased estate. A first and final liquidation and distribution account was prepared but was rejected by the Master of the High Court ( Second Respondent in this Appeal)  on the basis that the account  had failed to calculate the accrual claim (if any) having regard that the immovable property was excluded therefrom.  The relevant portion of the report reads:
‘kindly take note that under the accrual system there is not division of assets when a marriage is dissolved, calculate a possible accrual claim and amend cause for distribution. In terms of clause 4 of the antenuptial contract dated 27 October 2006 provide that immovable property is excluded from the accrual system. Take note that your application in terms of section 45 (1) of the Deeds Registries Act 47 of 1937 reflects that the parties were married in community of property. Section 45 (1) has been rejected (Pg 111).’

6.	It must be noted that the Master did not, as submitted on behalf of Mr and Mrs Radebe,  reject the  account because it had failed to provide for transfer of the immovable property into their name.

7.	 Thereafter, a further final liquidation and distribution account was prepared acceptable to the Master which indicated transfer of the contested immovable property into the names of the late Mrs Sosibo’s parents,  Mr and Mrs Radebe.

8.	It is the disposition of  this asset in the  deceased estate, the immovable property,  which has given rise to the present dispute. Mr Sosibo contended  that he is the sole heir in his late wife’s intestate estate and accordingly   that the liquidation and distribution account was incorrect and that transfer of the immovable property to his late wife’s parents, Mr and Mrs Radebe,  should not have taken place. In the court a quo his application was upheld, the liquidation and distribution account was set aside and transfer into Mr Sosibo’s name was ordered.    The parents of the late Mrs Sosibo,  Mr and Mrs Radebe (respondents in the court below)  now appeal that decision.

Antenuptial Contract

9.	Prior to their November 2006 marriage, the intending spouses took legal advice from an attorney in October  with regard to the appropriate marital regime. Acting on advice received they gave separate Powers of Attorney to this attorney who was not himself qualified or authorised to prepare or register an antenuptial contract.  The attorney, then attended before a Notary Public and the attorney signed and the Notary Public attested an antenuptial contract. This antenuptial contract was registered in the Deeds Office on 7th November 2006. 

10.	In  the antenuptial contract it was agreed between Mr and Mrs Sosibo that there should  be neither community of property nor community of profit or loss between them. Accordingly, the accrual system of matrimonial regime as provided for  in Act 88 of 1984 automatically came into operation.

11.	 In order to calculate the accrual or profits arising from and in the course of the marriage,  the intended spouses  indicated the nett values of their separate estates at the commencement  of  the intended marriage: that of Mr Sosibo being R5000 and that of the intended Mrs Sosibo being R368 000.

12.	 A clause was  inserted into the antenuptial contract which has given rise to the present dispute reads as follows:
‘(4) For the purpose of Section 4 (1) (b) (ii) of the Act, the parties declare that the following MILLICENT JABULILE RADEBE’s assets, namely-
Immovable property situate at 1263/4 Milkwood Street, Ormonde Extension 24 Township registered in the name of MILLICENT JABULILE RADEBE
is excluded from the accrual system and the value of such assets and the extent of any liabilities existing in relation thereto, have been ignored for  the purpose of arriving at the nett commencement values of the estates of the said SIPHOSENKOSI EMANUEL SOSIBO and the said MILLICENT JABULILE RADEBE.’

The Accrual Regime

13.	The accrual system applicable to the matrimonial regime of Mr and Mrs Sosibo was automatically applicable once they were married out of community of property, profit and loss. The right of either of them to share in the accrual of the other spouse’s estate only arose on dissolution of the marriage. Dissolution occurs either by death or divorce. In the present case death intervened.

14.	 The accrual system has been described as “a deferred community of property’ or “ a deferred sharing of the profits of spouses married out of community”.      On dissolution of marriage, whether by death or divorce, the nett increases in their respective estates are notionally added up and then divided equally. The accrual is thus the difference between the nett of the estate of commencement, properly escalated, and the nett value at dissolution. At dissolution of marriage a calculation is made by allowing to the spouse whose  estate has no or a  smaller accrual a claim against the other spouse or her  estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses. In short, the accrual of each separate estate is first established, the accruals are added together and then divided in half. Each spouse is to receive the half so established and the one that has more than that amount is obliged to pay the difference to the other.

15.	Accordingly, in the present case, the first step to be taken was  determination of  the accrual in each of the separate estates of both  Mr and Mrs Sosibo and then to calculate what claim, if any, either spouse of their executor  had against the estate of the other. The liquidation and distribution account in the estate of the late Mrs Sosibo  indicates the nett assets available for distribution (after payment of debts and administration fees) to be in the region of R1 200 000. Since that includes an amount of  R480 000 in respect of the immovable property which property has been wholely excluded from any accrual, it would seem that the accrual in the estate of the late Mrs Sosibo was in the region of  some R 720 000.   Thereafter the accrual in the estate of the surviving Mr Sosibo should have been calculated.  Only by comparison between the two estates and the two accruals (if indeed there are such) would it be possible to ascertain whether or not and the amount by which Mr Sosibo has a claim to a share in the accrual in the estate of his late wife.

16.	However,  taking into account that the financial position of the spouses could scarcely have changed significantly during the very short period of their marriage, it is most probable that Mr Sosibo does indeed have a claim upon the accrual in the estate of the late Mrs Sosibo.

17.	 It is only once these ‘profits’ have been divided between the spouses that  the question of testate or intestate succession arises. 
The Accrual Regime and Succession

18.	The accrual of the estate of the deceased spouse is determined before effect is given to any testamentary disposition, donation mortis causa or succession to any portion of  that estate in terms of the law of intestate succession.   

19.	The Matrimonial Property Act has made it clear that  the matrimonial  regime  chosen by the spouses has no bearing on any  right to  succession by a surviving spouse from the estate of the first dying..  The application of the accrual system and the calculation of any accrual has no  bearing on the  right of  either  spouse to inherit from the other, either by way of intestate succession or under a will.  

20.	The fact that certain asset(s) have been excluded from the accrual in a marriage governed by that regime does not mean that  the remainder of an estate, ie the portion not included in the accrual,  must be dealt with in any manner other than ab intestato or by right of a will. 

Intention of the Deceased

21.	Much reliance has been placed by both parties on their purported comprehension of the ‘intention’ of the late  Mrs Sosibo.

22.	Mr  and Mrs Radebe  (the appellants) submit that the clear intention of their daughter in  excluding this immovable property from the marital regime was to ‘prevent it from devolving upon’  Mr Sosibo on her death. This  intention of the late Mrs Sosibo is  supposedly extracted from her instructions to the attorney that the immovable property should be excluded from the accrual system created in the antenuptial contract;   the averment that there was advice  on the part of the attorney that such exclusion in the antenuptial contract ‘would sufficiently prevent a devolution’ upon Mr Sosibo in the event of either of  the spouses dying  without a will; the averment that, whilst alive,  Mrs Sosibo had expressed the desire that this property should become the property of her parents.

23.	There is a dearth of first hand information concerning the pre marriage  consultation involving attorney  Etienne Cloete,   Mr Sosibo and the late  Mrs Sosibo.   In the founding affidavit Mr Sosibo goes no further than to state that “during the consultation the deceased and I had the said Etienne Cloete, he also advised us to prepare and execute a last will and testament. We inquired what the position would be should either of us die intestate and the legal position was explained to us by the said Etienne Cloete. Both of us decided that we deemed it unnecessary to execute a last will and testament under the circumstances.” Mr  Sosibo  also states that he has been advised by his attorney that “in his opinion I am the sole heir in the estate of the deceased and that I am entitled to inherit and take transfer of all or any assets in this estate.  This was the same advice that the said Etienne Cloete gave the deceased and I IN October 2006”    Sosibo gives no indication of what explanation the said Etienne Cloete gave the intending spouses as to their legal position should either of them die intestate. 

24.	Mr and Mrs Radebe further contend  that both family ties and financial interdependency lead to the making of a number of loans over a three year period both from the family business, Osizwenzi CC,  and from  Mr and Mrs Radebe to the late Mrs Sosibo in an account of approximately R450 000.  It is averred that, during her lifetime, the late Mrs Sosibo confided in her sister, Patience Radebe, that she would want the immovable property which she had acquired to pass on to her parents if she were to die before them ‘for reason that the loans that they and family business had made to her, enabled her to purchase that property’.

25.	In addition, during her lifetime, the late Mrs Sosibo is said to have informed her parents, Mr and Mrs Radebe,  that she wished them to become the owners of  ‘her house (the immovable property) and that that should be formalised by attorneys should she pass away before them.’ These expressions of wishes are confirmed by the affidavit of the sister, Patience Radebe, as also the parents, Mr And Mrs Radebe (the appellants).

26.	However, for purposes of this appeal, it is not necessary to make any finding  as to the credibility of the evidence  deposed to by Mr Sosibo or  members of the Radebe family. 

27.	Family  recollection does not have to be relied upon because  the appellants submissions  are founded upon the meaning and the import of the property exclusion clause in the antenuptial contract.   The appeal appears to be based  upon  a two fold argument:  Firstly,   Mrs Sosibo did not die wholly intestate because, insofar as the immovable property is concerned, she made a testamentary  disposition in the antenuptial contract which meant that the house does not devolve upon Mr Sosibo by intestate succession.  Secondly,  the property exclusion clause  is proof of either a donation or bequest to her parents.     These two scenarios appear to be interchangeable in  appellants  argument and  the wording variously used ranges from “ bequest inter vivos”,  “transaction inter vivos”, “donation mortis causa”,  “contract for the benefit of a third party”.

Testacy or Intestacy of the late Mrs Sosibo

28.	It is accepted that an estate may be partly testate and partly intestate  in that a deceased may have left a valid will disposing of only portion of his or her assets.   These assets then pass by testate inheritance, whereas the balance of the assets,   not dealt with in the will,  would pass by intestate inheritance. 

29.	Part of the appellant’s argument appears to be that Mr and Mrs Radebe inherit by  through some form of  testatmentary provision in the ante nuptial contract.   The  property exclusion   clause excludes the immovable property from the accrual between Mr Sosibo and the late Mrs Sosibo is some form of testamentary disposition when it is combined or  read in the context of the evidence of members of the Radebe family...    

30.	I comprehend that  Mr and Mrs Radebe contend that exclusion of the immovable property from any prospective accrual reflects their understanding of their daughter’s wishes that  Mrs Sosibo did not wish her house  to become  the property of  her husband,  Mr Sosibo.   They rely upon inclusion of this clause  in the antenuptial contract to buttress the averment that, during her lifetime,  Mrs Sosibo expressed  the wish that  the  house should become the property of her parents. 

31.	However,  I have much difficulty in accepting that  the clause contained in the antenuptial contract contains any testatmentary disposition of this property  to Mr and/or Mrs Radebe.

32.	It has long been accepted that an antenuptial contract may contain  provisions relating to the devolution of property on the death of one of the spouses which  would be valid and  constitute an exception to the rule that a pactum successorium is invalid.

33.	However,  there is no merit in the submission that  it is not necessary that there be compliance with the formalities prescribed in the Wills Act 7 of 1953 because an antenuptial contract  is not a testamentary act.   I find no assistance to the appellants in the cases cited at footnote 12 of counsel’s heads of argument.. While an antenuptial contract may certainly contain a succession clause, any such clause  would have to comply with the formalities prescribed for wills.   The formalities prescribed in the Wills Act 7 of 1953 as amended include a written document,  signed on each page by the testator,  each signature witnessed by two persons, nomination of heirs or legatees.  In the present case there is no  indication in the document that upon death Mrs Sosibo (then Ms Radebe) bequeathed the named immovable property to either Mr or Mrs Radebe or both of them.   There is simply no  reference to devolution of the property in the event of an anticipated death or the naming of a beneficiary or beneficiaries.

34.	Even if there were a reference to the death of the late Mrs Sosibo and the naming of legatees,  there is certainly not compliance with the Wills Act.   This antenuptial contract  has not been signed on any page by the late Mrs Sosibo and there can therefore be no witness to her signature.   The power of attorney  whereby she authorised an attorney to attest to an antenuptial contract on her behalf constitutes even less compliance.

35.	It does not avail the appellants to submit that a court must t exercise great caution when asked to set aside a will which has been accepted by the Master especially when a considerable period has elapsed since death.  The authorities to which reference are made provide no assistance.   In the present case there is no will.   Moreover, a proper reading of the Master’s report reveals that the Master never purported to accept any portion of the antenuptial contract as a will.

36.	I can see no merit in the submission that  Mrs Sosibo did not die intestate. There is no document extant which purports to dispose of her estate or part thereof on her death to named heirs or legatees.

Inter vivos bequest or donation mortis causa

37.	Appellants counsel has  attempted to argue that some kind of bequest or donation  to Mr and Mrs Radebe is to be found either in  the antenuptial contract or in the wishes  verbally expressed by their daughter during her lifetime or in combination.

38.	It is difficult to untangle the exact nature of the argument.  However, on whatever basis it is presented I can find no merit therein.

39.	Firstly,  whilst it might formerly have been  a frequent practice that an antenuptial contract would also include a contract between one or both of the spouses and one or more third parties  in favour of either the spouses or the third party, in the present case there are no third parties who are either named in the antenuptial contract or who have entered into and concluded this contract.

40.	Secondly,   whilst it would  have been permissible for the late Mrs Sosibo  to have specified in the antenuptial  contract that third parties not a party  to the antenuptial contract, such as her  parents, would be  beneficiaries of  a gift or settlement  - she  has not so done.    A stipulation alteri  would have to intend to create rights for  Mr and/or Mrs Radebe,  operate as an offer to them which they could accept and  would have to comply with the formalities applicable to the nature of the  rights on offer – in this case those prescribed in the Alienation of Land Act .

41.	Thirdly,   I do not understand what is meant by a “bequest inter vivos” but if by that phrase is intended  a  bequest made during her lifetime to take effect on her death,  then  I  comment, once again,  that there must be compliance with the provisions of the Wills Act.  The reference to various authorities in appellant’s heads are   have not been particularly helpful.

42.	Fourth,    where  it is argued that there was a  “donatio mortis causa”   then again     there is neither a written document  signed by the late Mrs Sosibo in which she  indicates that she makes a donation (in contemplation of death) to her parents .  There is still no compliance with the Wills Act.    

43.	Fifth,    any divesting by Mrs Sosibo of her interest in the immovable property during her lifetime would necessarily require compliance with the provisions of the Alienation of Land Act 698 of 1981 .

44.	Finally,     insofar as it is suggested that the evidence of family members is to the effect that  the late Mrs Sosibo made a donation to her parents during her lifetime  which  is reflected in the property exclusion clause in the antenupial contract, this is clearly not the case.   There is no indication that the late Mrs Sosibo  divested herself of the property during her lifetime and did not intend to enjoy the benefit of the property  while she lived.    I have already pointed out the  absence of compliance with any of the prescribed formalities.   

CONCLUSION

45.	The  distress of the Radebe family is understandable.  The family was interdependent and provided financial assistance to the members thereof including the late Mrs Sosibo.   She acquired a house of some value during her lifetime.  Her family expected to benefit from her estate should she predecease any of them,  particularly her parents.    She then married Mr Sosibo.    Barely a month later she died.   Their grief and their loss has been compounded by the fact that an outsider,  the very new husband,  has benefited from their daughter’s death.   

46.	It would seem that  the only avenue available to the Radebe family has been to attach a claim  to some portion of their daughter’s estate  by reliance upon the clause excluding the immovable property from the accrual in this marriage.

47.	This reliance has been totally misplaced.

48.	Appellants’ legal representatives have lost sight of the fact that  this antenuptial contract is primarily a contract between the two intending spouses, Mr Sosibo and his intended wife then Ms Radebe.  They were seeking to arrange their matrimonial property regime.

49.	Appellants’ legal representatives  have failed to have regard to the fact that the right of Mr Sosibo to share in any accrual in the estate of  the late Mrs Sosibo   would arise  on dissolution of the marriage   - by death or divorce -  or if the court ordered  otherwise.  The late Mrs Sosibo concluded this antenuptial contract as an intending spouse.  If she had not excluded this immovable property,  her home,  from the accrual in her estate she may well have found herself  obliged to share  the value of or the house itself with her spouse if and when they became divorced.  If the immovable property had not been excluded from the accrual,  then Mr Sosibo could have  laid claim to some portion of the property representing an increase in the net value, ie the accrual, in the estate.  By excluding the property itself from the accrual,  Mrs Sosibo protected not only the property but also its increase in value by reason of additions, alterations, extensions and  simply the increase in the value of immovable property.   The effect of this property exclusion clause was, inter alia, to protect  her own interests as a  potentially divorcing spouse. 

50.	Parties choose  different matrimonial regimes for a multiplicity of reasons.  Intending spouses choose to exclude assets from the accrual for a similar variety of reasons – one need only think of insolvency,  divorce,  concern for children of previous marriages,  the ability to dispose of an entire (rather than shared) asset by way of will and so on.

51.	By excluding the immovable (or any other) asset from the accrual in the antenuptial contract,  the late Mrs Sosibo did not give any indication that she divested herself of  that asset in favour of her parents  or anyone else  nor did she  give any indication that she  bequeathed that asset to her parents or anyone else upon her death.   This is not a divesting or transferring or devolving clause at all.

52.	.This approach explains why there is no reference  to Mr or Mrs Radebe in this antenuptial contract.  It explains why there is no compliance with any of the formalities prescribed by the Wills Act or the Alienation of Land Act.

53.	In the present case much distress and financial  embarrassment could have been avoided had the intending spouses executed separate last Wills and Testaments at the time they consulted with regard to their antenuptial contract.  It is appreciated that there are costs involved in embarking upon two legal processes – the antenuptial contract requiring consultation and advice from a Notary Public and the costs of registration of such contract;   the will requiring advice and drafting from and by an attorney.   However, litigation such  as this could have been avoided had  Mr Sosibo and his late wife taken these steps.

COSTS

54.	Mr Sosibo,  the respondent in this appeal,  has asked for costs to be awarded on a the punitive scale. 

55.	It is correct that this litigation should never have been required and this appeal should never have been embarked upon.  However, I do not lose sight of the circumstances of the dispute – bereavement,  attachment to the assets of the lost daughter,  incredulity that parents are excluded from their daughter’s assets in favour of a newly married spouse.   All these understandable emotional considerations militate against any punitive order.   

ORDER
56.	In the result I would make an order as follows:
a.	The appeal is dismissed with costs.

_____________________
SATCHWELL   J

I  agree

______________________
WILLIS J 

I agree

_________________________
MONAMA  J 

DATED AT JOHANNESBURG THIS  18 MARCH 2011

K. SATCHWELL
Judge of the High Court