The Genesis of the Dispute: A Marriage Out of Community of Property Revisited
The roots of this protracted legal dispute stretch back to 7 February 1991, when the applicant and the late Mr M entered into marriage out of community of property. What began as a straightforward divorce action in 2008 has evolved into a complex battle over the very nature of the matrimonial property regime that governed their union.
The late Mr M instituted divorce proceedings against the applicant on 22 July 2008, seeking a decree of divorce and custody arrangements for their minor child. Notably absent from his original prayers was any claim for division of the joint estate, a consequence of their marriage being out of community of property with the accrual system rendered inapplicable due to the absence of a pre-nuptial contract.
The divorce matter proceeded to trial and was heard by Leeuw JP, who delivered judgment on 16 April 2013. The parties had agreed at the pre-trial conference that their marriage was indeed out of community of property, with the accrual system excluded precisely because no pre-nuptial contract had been concluded. The sole remaining issue for determination concerned the division of a house situated at D Street, Montshiwa.
Following a full trial where both parties gave evidence and were cross-examined, Leeuw JP granted the decree of divorce but ordered absolution from the instance regarding the claim for division of the joint estate in respect of the disputed property. Crucially, the learned Judge President left the door open for the applicant, stating that the court was not shut to her should she wish to properly approach the court on the property issue if she believed she had a valid claim.
Fast-forward to 2025, and the applicant now seeks to fundamentally challenge the very foundation upon which the original divorce was granted. Her case has taken a dramatic turn: she now contends that when she and the late Mr M married in 1991, the provisions of the Matrimonial Property Act 88 of 1984 were applicable, and that their marriage was actually in community of property, not out of community of property as had been agreed and determined in the original proceedings.
This volte-face forms the crux of the current application, where the applicant seeks to vary the final decree of divorce to reflect what she now claims was the correct matrimonial property regime, thereby entitling her to an equal division of the joint estate.
Rule 42 and the Limits of Variation: When Common Mistake Does Not Apply
The applicant’s legal strategy hinged entirely on Rule 42 of the Uniform Rules of Court, specifically subsection (1)(c), which permits the rescission or variation of orders granted as the result of a mistake common to the parties. However, Acting Judge Masike found this reliance to be fundamentally misplaced and bad in law.
The court’s analysis drew on established jurisprudence to define the parameters of what constitutes a final judgment. In Zweni v Minister of Law and Order 1993 (1) SA 523 (A), Harms AJA established that a judgment must possess three essential attributes: finality in effect without susceptibility to alteration by the court of first instance, definitiveness regarding the parties’ rights, and disposal of at least a substantial portion of the relief claimed in the main proceedings.
The court distinguished between the type of common mistake envisaged by the rule and the circumstances present in this case. A common mistake typically covers situations where judgment is entered by consent based on justus error shared by both parties. Here, the original judgment was rendered after a full trial where both parties presented evidence and underwent cross-examination, making any reliance on common mistake inappropriate.
The court emphasised that mere judicial error, even if based on mistaken facts, cannot ground a successful variation application. As established in First Consolidated Leasing Corporation Ltd v McMullin 1975 (3) SA 606 (T), such judgments can only be set aside where the error resulted from fraudulent misrepresentation. The applicant made no allegations of fraud, nor did her counsel advance any such argument.
Furthermore, the court referenced A.N v N.C.N (2283/2021) [2022] ZAECMKHC 14 (17 May 2022) to illustrate that errors attributable to legal representatives or a litigant’s own mistaken understanding of available relief cannot constitute the common mistake required under the rule. The principle reinforces that parties cannot circumvent the finality of judgments through variation applications based on their own misunderstandings or inadequate legal advice.
The court’s reasoning reflects a broader principle articulated in Goedverwachting Farm (Pty) Ltd v Roux and Others (641/2023) [2024] regarding the proper function of judicial officers: to determine issues as presented by the parties in their pleadings, not to create new factual issues or recharacterise disputes beyond what the parties themselves have defined.
The Finality of Judgments: Why Appeals Trump Variation Applications
Acting Judge Masike’s reasoning crystallised around a fundamental principle of our legal system: the sanctity and finality of properly rendered judgments. The court emphasised that the 2013 judgment possessed all the hallmarks of finality established in the Zweni case, rendering it immune to collateral attack through variation proceedings.
The court’s analysis revealed the applicant’s fundamental procedural misstep. Rather than pursuing the proper appellate route to challenge Leeuw JP’s determination of the matrimonial property regime, the applicant attempted to circumvent established appellate procedures through a variation application. This approach violated the hierarchical structure of our court system and the principle that disappointed litigants cannot simply relitigate concluded matters under the guise of variation.
Central to the court’s reasoning was its examination of the original proceedings’ integrity. The applicant’s counsel argued that Leeuw JP should have interrogated the pleadings more thoroughly and, in the absence of a pre-nuptial contract, should have presumed a marriage in community of property. However, Acting Judge Masike firmly rejected this submission, noting that both parties had explicitly agreed at the pre-trial conference that their marriage was out of community of property with the accrual system excluded.
The court underscored that judicial officers must adjudicate on issues as presented by the parties, not create new factual matrices. Leeuw JP had properly relied on the parties’ common position regarding their matrimonial property regime, and it would have been inappropriate for the court to have decided the matter on a basis not pleaded by either party.
The judgment serves as a stern reminder that procedural rules exist to ensure legal certainty and prevent the endless relitigation of settled matters. The applicant’s attempt to recharacterise her matrimonial property regime twelve years after the divorce decree was a classic example of seeking to have two bites at the cherry, something our legal system cannot countenance.
On the question of costs, the court applied the established principle that costs follow the cause unless exceptional circumstances justify departure from this rule. The applicant’s poverty, advanced through her counsel, was deemed insufficient to warrant such departure, particularly given the straightforward nature of the application and its obvious lack of merit.
Questions and Answers
What are the three essential attributes of a final judgment according to the Zweni case? A final judgment must be final in effect and not susceptible of alteration by the court of first instance, it must be definitive of the rights of the parties, and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.
Under which subsection of Rule 42 did the applicant seek relief? The applicant relied on Rule 42(1)(c) of the Uniform Rules of Court, which allows rescission or variation of orders granted as the result of a mistake common to the parties.
What constitutes a common mistake under Rule 42(1)(c)? A common mistake typically covers cases where judgment is entered by consent and the parties consented in justus error, meaning both parties shared the same mistaken understanding.
Can a judgment entered after a full trial be varied on the basis of common mistake? No, where a judgment is entered after a full trial with evidence led and cross-examination conducted, it cannot be varied on the basis of common mistake under Rule 42(1)(c).
What must be proven to set aside a judgment based on the court’s mistaken facts? According to the First Consolidated Leasing Corporation case, if the court has given judgment on mistaken facts, it can only be set aside if the error was due to fraudulent misrepresentation.
Can errors by legal representatives constitute common mistake for variation purposes? No, as established in the A.N v N.C.N case, a litigant who is mistaken due to advice of a legal representative cannot succeed on the basis of common mistake under Rule 42(1)(c).
What is the proper function of judicial officers according to the Goedverwachting Farm case? Judicial officers must determine the issues before them and confine themselves to such issues. It is for parties to set out and define the nature of their dispute in pleadings, and courts must adjudicate on issues so defined, not create new factual issues.
What was agreed between the parties at the pre-trial conference in the original divorce proceedings? The parties agreed that the marriage was out of community of property and that the accrual system was not applicable due to the fact that they had not entered into a pre-nuptial contract.
Could Leeuw JP have decided the divorce on the basis that the parties were married in community of property? No, this would have amounted to creating new factual issues not pleaded by the parties, which is beyond the proper judicial function.
What matrimonial property legislation did the applicant claim should have applied to her 1991 marriage? The applicant contended that the Matrimonial Property Act 88 of 1984 was applicable and that her marriage was in community of property.
What relief did the applicant seek in the current variation application? The applicant sought variation of the final decree of divorce to substitute the original order with one providing for equal division of the joint estate.
What should the applicant have done instead of bringing a variation application? The applicant should have appealed the judgment of 16 April 2013, as that was the proper procedure to challenge the court’s determination.
What principle governs the awarding of costs in South African courts? Costs follow the cause unless there are reasons to depart from this established principle.
Was the applicant’s poverty sufficient grounds to depart from the normal costs order? No, the court found that the applicant’s lack of money was insufficient to depart from the principle that costs follow the cause, particularly given the straightforward and meritless nature of the application.
What door did Leeuw JP leave open for the applicant in the original judgment? Leeuw JP indicated that the court doors were not shut and afforded the applicant an opportunity to properly approach the court on the property division issue if she believed she had a valid claim against the plaintiff.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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