Background of the Case
D H B and C S B concluded an antenuptial contract before their marriage in 2015, declaring their marriage to be out of community of property with the exclusion of the accrual system. They later entered into a prenuptial agreement, which provided for the division of assets and maintenance obligations upon the dissolution of their marriage by divorce or death. The prenuptial agreement stated that D H B would donate a residential dwelling, a motor vehicle, medical aid contributions, life policy premiums, and monthly maintenance to C S B.
In 2018, D H B instituted divorce proceedings against C S B, who filed a counter-claim seeking the enforcement of the prenuptial agreement. D H B admitted to signing the agreement but denied its enforceability, arguing that the parties had abandoned it upon the registration of their antenuptial contract. The key issue before the courts was whether the prenuptial agreement was valid and enforceable alongside the antenuptial contract.
The Regional Court found the prenuptial agreement to be enforceable, relying on the principles of pacta sunt servanda (agreements must be kept) and freedom of contract. D H B appealed to the High Court, which set aside the Regional Court’s decision, stating that enforcing the prenuptial agreement would preclude the divorce court from exercising its discretion under section 7(2) of the Divorce Act.
C S B then appealed to the Supreme Court of Appeal, which ruled in her favour, holding that the two legal instruments could co-exist because the antenuptial contract regulated the matrimonial regime during the marriage, while the prenuptial agreement dealt with the patrimonial consequences upon divorce or death. The Supreme Court of Appeal found that the prenuptial agreement did not attempt to amend the antenuptial contract and that the respondent was merely seeking specific performance of a contractual claim based on donations.
D H B subsequently applied for leave to appeal to the Constitutional Court, raising the question of whether a prenuptial agreement that purports to regulate the patrimonial consequences of divorce, including maintenance, is contrary to public policy and unenforceable for ousting the divorce court’s jurisdiction under section 7(2) of the Divorce Act.
The Prenuptial Agreement: A Donation or a Maintenance Contract?
The central issue in D H B v C S B (CCT 293/22) [2024] ZACC 9 (22 May 2024) revolved around the nature of the prenuptial agreement between the parties. The respondent, C S B, argued that the agreement constituted a donation, relying on the definition of a donation in LAWSA (Harms “Donations” in LAWSA 3 ed (2017) vol 16 at para 19). The Supreme Court of Appeal in C B v D B [2022] ZASCA 123; 2023 (1) SA 381 (SCA) agreed with this characterisation, stating that the prenuptial agreement was a contractual claim based on donations in favor of the respondent.
However, the dissenting opinion in the Constitutional Court judgment argued that the prenuptial agreement was not a donation but rather a maintenance contract. The dissenting judgment emphasised that the agreement’s terms, which included provisions for accommodation, transport, medical aid, insurance premiums, and monthly maintenance, constituted the obligations and responsibilities of married persons. The dissent relied on the principle laid down in Zandberg v Van Zyl 1910 AD 302, which states that the nature of a contract is determined by its substance and not by the parties’ description of it.
The dissenting judgment further contended that the prenuptial agreement could not be considered a donation born out of pure benevolence or liberality, as the parties entered into the agreement solely because of their intended marriage, recognising that spousal maintenance is an obligation imposed by marriage. The dissent argued that enforcing the agreement as a donation would allow parties to circumvent section 7 of the Divorce Act 70 of 1979, which empowers courts to make just and equitable maintenance orders upon divorce.
This characterisation of the prenuptial agreement as a maintenance contract formed the basis for the dissenting opinion’s conclusion that the agreement was contrary to public policy and unenforceable for ousting the divorce court’s jurisdiction under section 7(2) of the Divorce Act.
The High Court and Supreme Court of Appeal Rulings
In D H B v C S B , the High Court and the Supreme Court of Appeal grappled with the enforceability of the prenuptial agreement in light of the antenuptial contract between the parties. The High Court, in B v B, unreported judgment of the Gauteng Division of the High Court, Pretoria, Case No A135/2020 (28 April 2021), set aside the decision of the Regional Court, which had found the prenuptial agreement to be enforceable. The High Court held that enforcing the prenuptial agreement would result in the respondent receiving lifelong maintenance, couched as a donation, in circumstances where no agreement existed in terms of section 7(1) of the Divorce Act 70 of 1979. This, the High Court reasoned, would effectively oust the divorce court’s discretion to make a just and equitable maintenance order under section 7(2) of the Divorce Act.
On appeal, the Supreme Court of Appeal in C B v D B [2022] ZASCA 123; 2023 (1) SA 381 (SCA) overturned the High Court’s decision. The Supreme Court of Appeal held that the antenuptial contract and the prenuptial agreement could co-exist, as they served different purposes. The antenuptial contract regulated the matrimonial property regime during the subsistence of the marriage, while the prenuptial agreement dealt with the patrimonial consequences upon divorce or death. The Supreme Court of Appeal found that the parties never intended for the prenuptial agreement to amend or vary the antenuptial contract and that the respondent was merely seeking specific performance of a contractual claim based on donations.
The Supreme Court of Appeal further held that section 7(1) of the Divorce Act was not applicable, as the respondent was not asking for a settlement agreement to be made an order of court. Additionally, the court found that section 7(2) of the Divorce Act did not apply, as the respondent was not claiming maintenance under that provision but simply requesting the enforcement of the prenuptial agreement’s terms.
These divergent rulings by the High Court and the Supreme Court of Appeal set the stage for the Constitutional Court’s consideration of the enforceability of the prenuptial agreement and its potential impact on the divorce court’s powers under section 7 of the Divorce Act.
The Constitutional Court’s Majority Judgment
The Constitutional Court, in a majority judgment authored by Theron J, dismissed the appeal against the Supreme Court of Appeal’s decision in C B v D B [2022] ZASCA 123; 2023 (1) SA 381 (SCA). The majority held that the High Court and the Supreme Court of Appeal had erred in considering the prenuptial agreement’s enforceability in relation to section 7(1) and (2) of the Divorce Act 70 of 1979, as this issue was not properly before them.
The majority judgment emphasised that the matter before the Regional Court was argued as a stated case, with the parties agreeing to determine the enforceability of the prenuptial agreement solely on the basis of its compatibility with the antenuptial contract. The question of the agreement’s enforceability in light of section 7 of the Divorce Act was raised for the first time on appeal to the High Court. The majority found that the High Court and the Supreme Court of Appeal had failed to consider the potential unfairness and prejudice to the parties in deciding this new issue on appeal.
Furthermore, the majority judgment noted that, on the pleadings, the prenuptial agreement was an unspecified donation, which did not fall within the ambit of section 7 of the Divorce Act. The majority held that the Supreme Court of Appeal’s findings regarding the characterisation of the prenuptial agreement and its relation to section 7 were obiter dicta (said in passing) and not binding.
The majority agreed with the Supreme Court of Appeal’s conclusion that the antenuptial contract and the prenuptial agreement could co-exist, as the donation did not change the matrimonial regime during the subsistence of the marriage and only affected the value of the estates upon divorce or death. The majority also found that the parties did not intend to amend or rectify the antenuptial contract through the prenuptial agreement.
In conclusion, the majority judgment held that the Regional Court had correctly decided the compatibility issue between the antenuptial contract and the prenuptial agreement. The majority emphasised that the other issues, such as the applicability of section 7 of the Divorce Act and the public policy considerations, remained open and could be decided by the Regional Court if the pleadings were amended to raise these issues properly.
In the majority judgment of D H B v C S B, Theron J relied on several cases to support the court’s reasoning. Some of these cases include:
Molusi v Voges N.O. [2016] ZACC 6; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC): This case was cited to emphasize that a court should only decide issues before it, as pleaded by the parties, and that it is impermissible for a court to decide issues falling outside the pleadings without determining issues of fairness and prejudice.
Slabbert v Minister of Safety and Security [2009] ZASCA 163; [2010] 2 All SA 474 (SCA): This case was relied upon to highlight that a party should generally not be allowed to argue new issues on appeal that were not raised or considered by the lower court, except where the issue in question has been canvassed fully by both sides at the trial.
Notyawa v Makana Municipality [2019] ZACC 43; 2020 (2) BCLR 136 (CC); (2020) 41 ILJ 1069 (CC): This case was cited to express the court’s disapproval of a litigant changing its case as the matter proceeded through the various courts without explanation or seeking an amendment to the relief sought in the lower courts.
Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC): This case was referenced to explain that considering a new point of law on appeal should not result in unfairness to the other party, such as not having agreed on material facts or not having the opportunity to investigate the law point and its ramifications at trial.
Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A): This case was cited to support the principle that a court may mero motu (of its own accord) raise a question of law that emerges fully from the evidence and is necessary for the decision of the case, subject to the proviso that no prejudice will be caused to any party by its being decided.
These cases were used by the majority to reinforce the importance of deciding issues based on the pleadings and the potential unfairness and prejudice that may arise from considering new issues on appeal. The majority’s reliance on these cases underscores its emphasis on procedural fairness and the proper administration of justice in the context of the enforceability of the prenuptial agreement in D H B v C S B.
The Dissenting Opinion: A Thought-Provoking Perspective
In the dissenting opinion, penned by Schippers AJ, a compelling argument was put forth, challenging the majority’s decision and the Supreme Court of Appeal’s ruling in C B v D B [2022] ZASCA 123; 2023 (1) SA 381 (SCA). The dissent contended that the prenuptial agreement was not a donation but a maintenance contract that violated section 7 of the Divorce Act 70 of 1979 and was, therefore, contrary to public policy and unenforceable.
Schippers AJ argued that the court could not ignore an agreement that violates the law, even if the illegality was not pleaded. The dissent relied on the principle laid down in Schierhout v Minister of Justice 1926 AD 99, which states that a thing done contrary to the direct prohibition of the law is void and of no force. The dissenting opinion emphasised that the illegality principle is designed to vindicate the public interest and cannot depend on procedural matters such as pleadings.
The dissent further contended that the prenuptial agreement purported to determine spousal maintenance upon divorce, contrary to section 7 of the Divorce Act. Schippers AJ argued that parties cannot, by private agreement, subvert the court’s power under section 7(1) to vet a settlement agreement providing for spousal maintenance or its power to make a just and equitable maintenance order under section 7(2) in the absence of such an agreement.
Drawing from the decisions in Zandberg v Van Zyl 1910 AD 302 and Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, the dissenting opinion emphasised that the substance of the prenuptial agreement, rather than its form, should be considered. The dissent argued that the agreement’s terms, which included provisions for accommodation, transport, medical aid, insurance premiums, and monthly maintenance, constituted the obligations and responsibilities of married persons and could not be considered a pure donation.
The dissenting opinion further highlighted the public policy considerations surrounding spousal maintenance, as recognized in Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837. Schippers AJ argued that enforcing the prenuptial agreement as a binding donation would allow parties to circumvent the statutory right to maintenance under section 7 of the Divorce Act and render its enforcement uncertain.
In conclusion, the dissenting opinion provided a thought-provoking perspective on the enforceability of prenuptial agreements that purport to regulate spousal maintenance. The dissent’s arguments, grounded in public policy considerations and the substance of the agreement, challenge the notion that such agreements can be enforced as binding donations and emphasise the importance of the court’s role in determining just and equitable maintenance orders upon divorce.
In the dissenting opinion, Schippers AJ also referred to several other cases that were not mentioned in the previous sections. These cases and their relevance to the dissenting opinion are as follows:
Molusi v Voges N.O. [2016] ZACC 6; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC): This case was cited to emphasize that a court should only decide issues before it, as pleaded by the parties, and that it is impermissible for a court to decide issues falling outside the pleadings without determining issues of fairness and prejudice.
Alexkor Ltd v Richtersveld Community [2003] ZACC 18; 2003 (12) BCLR 1301 (CC); 2004 (5) SA 460 (CC): This case was cited to support the principle that a court can deal with an issue that was not raised in the lower courts and not considered by the lower courts only in exceptional circumstances.
Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC): This case was cited to highlight that an act performed contrary to a statutory prohibition is invalid, has no legal effect, and must be regarded as never having been done.
Metro Western Cape (Pty) Ltd v Ross [1986] ZASCA 36; 1986 (3) SA 181 (A): This case was cited to support the principle that the common law of contract does not recognize agreements that are contrary to public policy.
Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC): This case was cited to argue that a prenuptial agreement that determines spousal maintenance to the exclusion of a divorce court’s powers under section 7 of the Divorce Act 70 of 1979 cannot be sanctioned by a court, as it violates public policy.
Schutte v Schutte 1986 (1) SA 872 (A): This case was cited to support the argument that an order for spousal maintenance under section 7 of the Divorce Act cannot be granted after the dissolution of the marriage.
These cases were used by the dissenting opinion to strengthen its arguments regarding the unenforceability of the prenuptial agreement, the importance of deciding issues based on the pleadings, and the public policy considerations surrounding spousal maintenance upon divorce.
Criticising the Majority Judgment
The majority judgment can be criticised for its narrow focus on the pleadings and its failure to address the substantive issues raised by the dissenting opinion. By emphasising that the issue of the prenuptial agreement’s enforceability in light of section 7 of the Divorce Act 70 of 1979 was not properly before the court, the majority may have missed an opportunity to provide clarity on the legal status of such agreements and their potential impact on the divorce court’s powers.
Furthermore, the majority’s characterisation of the prenuptial agreement as an unspecified donation, based solely on the parties’ pleadings, may be seen as a superficial approach that fails to consider the true nature and substance of the agreement. This approach could lead to unintended consequences, such as allowing parties to circumvent the statutory provisions governing spousal maintenance by disguising maintenance agreements as donations.
Lastly, the majority judgment’s lack of engagement with the public policy considerations raised by the dissenting opinion may be viewed as a shortcoming. The dissent’s arguments regarding the importance of the court’s role in determining just and equitable maintenance orders and the potential for prenuptial agreements to subvert this role deserve careful consideration, given their significant implications for the fairness and certainty of spousal maintenance upon divorce.
Defending the Majority Judgment
The majority judgment’s emphasis on the importance of deciding issues based on the pleadings and the potential unfairness and prejudice of considering new issues on appeal can be seen as a prudent approach that upholds procedural fairness and the proper administration of justice. By confining its decision to the compatibility issue between the antenuptial contract and the prenuptial agreement, the majority judgment respects the parties’ autonomy in framing the issues before the court and avoids overstepping its role by deciding matters that were not properly raised or argued.
Moreover, the majority’s finding that the prenuptial agreement and the antenuptial contract can co-exist, as the donation does not alter the matrimonial regime during the subsistence of the marriage, can be viewed as a pragmatic approach that gives effect to the parties’ intentions and upholds the principles of pacta sunt servanda (agreements must be kept) and freedom of contract. This approach ensures that parties can structure their financial arrangements in a manner that suits their needs, provided that such arrangements do not violate the law or public policy.
Finally, the majority judgment’s decision to leave the issues of the applicability of section 7 of the Divorce Act and the public policy considerations open for determination by the Regional Court, should the pleadings be amended, can be seen as a measured and responsible approach. This allows the parties to properly raise and argue these issues before the court of first instance, ensuring that the court has the benefit of a full record and the parties’ arguments before making a determination on these complex and important matters.
Questions and Answers
Q: What was the central issue in the case of D H B v C S B (CCT 293/22) [2024] ZACC 9 (22 May 2024)? A: The central issue in the case was whether a prenuptial agreement that purports to regulate the patrimonial consequences of divorce, including maintenance, is contrary to public policy and unenforceable for ousting the divorce court’s jurisdiction under section 7(2) of the Divorce Act 70 of 1979.
Q: What did the majority judgment of the Constitutional Court decide in D H B v C S B? A: The majority judgment dismissed the appeal against the Supreme Court of Appeal’s decision in C B v D B [2022] ZASCA 123; 2023 (1) SA 381 (SCA), holding that the High Court and the Supreme Court of Appeal had erred in considering the prenuptial agreement’s enforceability in relation to section 7(1) and (2) of the Divorce Act, as this issue was not properly before them.
Q: What was the basis for the dissenting opinion’s argument that the prenuptial agreement was unenforceable? A: The dissenting opinion argued that the prenuptial agreement was a maintenance contract that violated section 7 of the Divorce Act and was, therefore, contrary to public policy and unenforceable. The dissent contended that parties cannot, by private agreement, subvert the court’s power under section 7(1) to vet a settlement agreement providing for spousal maintenance or its power to make a just and equitable maintenance order under section 7(2) in the absence of such an agreement.
Q: How did the majority judgment characterize the prenuptial agreement? A: The majority judgment characterized the prenuptial agreement as an unspecified donation, based on the parties’ pleadings, which did not fall within the ambit of section 7 of the Divorce Act.
Q: What principle did the dissenting opinion rely on to argue that the court could not ignore an agreement that violates the law, even if the illegality was not pleaded? A: The dissenting opinion relied on the principle laid down in Schierhout v Minister of Justice 1926 AD 99, which states that a thing done contrary to the direct prohibition of the law is void and of no force. The dissent emphasised that the illegality principle is designed to vindicate the public interest and cannot depend on procedural matters such as pleadings.
Q: What did the majority judgment find regarding the compatibility of the antenuptial contract and the prenuptial agreement? A: The majority judgment found that the antenuptial contract and the prenuptial agreement could co-exist, as the donation did not change the matrimonial regime during the subsistence of the marriage and only affected the value of the estates upon divorce or death.
Q: What did the dissenting opinion argue regarding the substance of the prenuptial agreement? A: The dissenting opinion argued that the substance of the prenuptial agreement, rather than its form, should be considered. The dissent contended that the agreement’s terms, which included provisions for accommodation, transport, medical aid, insurance premiums, and monthly maintenance, constituted the obligations and responsibilities of married persons and could not be considered a pure donation.
Q: What public policy considerations did the dissenting opinion raise in relation to spousal maintenance? A: The dissenting opinion highlighted the public policy considerations surrounding spousal maintenance, as recognized in Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837. The dissent argued that enforcing the prenuptial agreement as a binding donation would allow parties to circumvent the statutory right to maintenance under section 7 of the Divorce Act and render its enforcement uncertain.
Q: What did the majority judgment decide regarding the issues of the applicability of section 7 of the Divorce Act and the public policy considerations? A: The majority judgment left the issues of the applicability of section 7 of the Divorce Act and the public policy considerations open for determination by the Regional Court, should the pleadings be amended. This allows the parties to properly raise and argue these issues before the court of first instance.
Q: What principle did the majority judgment’s finding on the co-existence of the prenuptial agreement and the antenuptial contract uphold? A: The majority’s finding that the prenuptial agreement and the antenuptial contract can co-exist upholds the principles of pacta sunt servanda (agreements must be kept) and freedom of contract, ensuring that parties can structure their financial arrangements in a manner that suits their needs, provided that such arrangements do not violate the law or public policy.
Final Thoughts
The importance of D H B v C S B (CCT 293/22) [2024] ZACC 9 (22 May 2024) lies in its potential to shape the legal landscape surrounding prenuptial agreements and their enforceability in South Africa. This case highlights the complex interplay between the principles of pacta sunt servanda (agreements must be kept), freedom of contract, and the public policy considerations that underpin the Divorce Act 70 of 1979.
The case grapples with the question of whether a prenuptial agreement that purports to regulate the patrimonial consequences of divorce, including maintenance, can be enforced in light of the divorce court’s powers under section 7 of the Divorce Act. The divergent opinions of the majority and dissenting judgments showcase the differing perspectives on this issue and the potential implications for the fairness and certainty of maintenance arrangements in South African divorce law.
The majority judgment’s emphasis on procedural fairness and deciding issues based on the pleadings serves as a reminder of the importance of proper legal procedure and the need for parties to raise and argue issues before the appropriate court. This approach ensures that the court has the benefit of a full record and the parties’ arguments before making a determination on complex legal matters.
On the other hand, the dissenting opinion’s focus on the substance of the prenuptial agreement and its potential to subvert the court’s powers under the Divorce Act highlights the public policy considerations surrounding spousal maintenance. The dissent’s arguments raise important questions about the extent to which parties can contract out of the statutory provisions governing maintenance and the role of the courts in ensuring just and equitable outcomes in divorce proceedings.
The Constitutional Court’s decision to leave the issues of the applicability of section 7 of the Divorce Act and the public policy considerations open for determination by the Regional Court, should the pleadings be amended, provides an opportunity for these important issues to be properly ventilated and decided by the court of first instance. This approach ensures that the legal principles governing prenuptial agreements and their interaction with the Divorce Act can be developed in a considered and comprehensive manner.
In conclusion, D H B v C S B is a significant case that highlights the complex issues surrounding the enforceability of prenuptial agreements in South Africa. The case has the potential to shape the future development of the law in this area and to provide clarity on the proper balance between the principles of pacta sunt servanda, freedom of contract, and the public policy considerations that inform the regulation of spousal maintenance in divorce proceedings.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline. A blog, managed by SplashLaw, for more information on Family Law read more here.
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