REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 40023/21

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO

Date: 11 May 2022 E van der Schyff

In the matter between:

GREYLING, KAREN RITA APPLICANT

and

MINISTER OF HOME AFFAIRS FIRST RESPONDENT

MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT SECOND RESPONDENT

GREYLING, BAREND PETRUS THIRD RESPONDENT

and

PRETORIA ATTORNEYS ASSOCIATION AMICUS CURIAE

JUDGMENT

Van der Schyff J

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Introduction

[1] Section 7(3) of the Divorce Act 70 of 1979 ("the Divorce Act") provides the court
granting a decree of divorce in respect of a marriage out of community of property
concluded before 1 November 1984, with a discretion to make a redistribution order
to the effect that any asset, or sum of money, may be transferred from one spouse
to another, subject to the provisions of s 7(4), (5) and (6). This application concerns
the constitutional validity of s 7(3)(a) and the restriction of the remedy provided for
in s 7(3) to marriages out of community of property that were entered into before 1
November 1984 in terms of an antenuptial contract by which community of property,
community of profit and loss and accrual sharing in any form are excluded.1 As the
law currently stands, the court has no power to exercise the discretion provided in s
7(3), where marriages were concluded out of community of property with the
exclusion of the accrual system after 1 November 1984.

[2] The applicant, Mrs. Greyling, and her husband were married out of community of
property, excluding the accrual system, in March 1988. Mrs. Greyling submits that
unless this application is successful, neither she nor other spouses in a similar
position are entitled to apply for a redistribution order on divorce, irrespective of their
particular circumstances and no matter how stark the injustices they face are. She
accordingly seeks an order declaring s 7(3)(a) of the Divorce Act unconstitutional
and invalid to the extent that it limits the operation of s 7(3) to marriages out of
community of property by which community of property, and community of profit and
loss and accrual sharing are excluded that were 'entered into before the
commencement of the Matrimonial Property Act, 1984'.

[3] The court is not called upon to determine whether Mrs. Greyling should be granted
a redistribution order in her particular divorce but to decide whether it is constitutional
for spouses married out of community of property with the exclusion of the accrual

1
1 November 1984 is the date of commencement of the Matrimonial Property Act 88 of 1984.

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system after 1 November 1984 to be deprived of the relief provided for in s 7(3) of
the Divorce Act.

Structure of the judgment

[4] The application is not opposed. The second respondent, the Minister of Justice and
Constitutional Development ("the Minister"), initially filed a notice to oppose the
application, but later indicated that it abides the court's decision. The Minister
subsequently filed an affidavit setting out its stance regarding the issue at hand. The
first and third respondents abide the court's decision. Shortly before the hearing, the
Pretoria Attorney's Association ("the PAA") applied to be admitted as amicus curiae.
Based on the preliminary submissions made, and because of the lack of opposition,
I was of the view that the PAA's contribution would be invaluable. The PAA was
admitted as amicus curiae.

[5] In this judgment, I set out the parties' and the amicus's respective contentions before
engaging with the legal issues raised. The submissions collectively establish the
context within which the constitutional validity of s 7(3)(a) of the Divorce Act is to be
determined. I am indebted to all counsel concerned for the thorough exposition of
applicable legal principles and law. I must extend my appreciation to the academic
scholars whose works are referred to in this judgment. A constitutional challenge,
long foreseen by academic scholars, was raised only in 2021.

The applicant's case

i. Arbitrary and irrational differentiation infringes s 9(1) of the Constitution2

[6] The applicant, Mrs. Greyling, submits that s 7(3)(a) arbitrarily and irrationally
differentiates between people married before and after 1 November 1984, being the
date on which the Matrimonial Property Act 88 of 1984 ("the MPA") commenced.
Counsel for the applicant contends that it is irrational that the applicant:

2
Section 9(1): Everyone is equal before the law and has the right to equal protection and benefit of
the law.

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'would be protected by section 7(3) if she had married four years earlier.
This is particularly so when the law still enforced a man's headship of
the family until 1993, long after the blanket, guillotine deadline of 1984.'

[7] Expert reports, confirmed under oath by two expert witnesses, were submitted in
support of Mrs. Greyling’s case. The Ancer report was compiled by a clinical
psychologist, Ms. Judith Ancer. Ms. Ancer explains:

'Before the Matrimonial Property Act came into effect, the law
entrenched a patriarchal system in which a man was legally entitled to
control his wife and where women had a weak bargaining position. On
the assumption that the husband's headship of the family was only
removed in 1993 it means that the patriarchal system persisted for 9
years after the Matrimonial Property Act came into force, but a woman
lost the ability to make an application under section 7(3) of the Divorce
Act when the accrual system was introduced.'

[8] According to Ms. Ancer, there is a lag in time between something becoming law on
paper, and the entrenched systems of romantic and marital relationships adjusting
to a new legal position.

[9] Mrs. Greyling contends that no legitimate government purpose justifies the
differentiation that denies persons married out of community of property with the
exclusion of the accrual system after 1 November 1984 of the potential protection of
a just and equitable remedial judicial order. Counsel for the applicant addressed the
assumption that the purpose of limiting the benefit of s 7(3)(a) of the Divorce Act to
marriages concluded before 1 November 1984, was to give effect to the choice of
the parties to get married out of community of property without the accrual system,
and that s 7(3)(a) holds them to that choice. He submitted that the choice-argument
is illusionary for the following reasons:

i. Experts whose reports were submitted into evidence hold that it does not
necessarily mean that if a person is over 18-years old and legally able to get

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married, the person is mature and competent enough to consider the

consequences of an antenuptial contract logically. It is necessary to mention
at this point that in light of the entrenched position regarding a party's legal
capacity to enter into a contract in South African Law, and the ensuing legal
consequences when a contract is entered by a person who lacks the capacity
to contract, I am of the view that this aspect is not relevant to the issue
regarding the constitutional validity of s 7(3)(a) of the Divorce Act. A party
who concluded an antenuptial agreement while lacking the required legal
capacity to contract has appropriate remedies to pursue. The same can be
said in relation to antenuptial agreements entered into because of coercion,
justus error, and fraud – appropriate legal remedies exist in this regard.

ii. The Constitutional Court recently rejected the choice argument in the context
of life partnerships in Bwanya v Master of the High Court, Cape Town.3 The
Constitutional Court held that the question is not whether there absolutely is
a choice, but whether, realistically, in the particular circumstances, a choice
may be exercised. The question as to whether choice can realistically be
exercised is to be differentiated from the question as to a party's capacity to
contract.

iii. It is already accepted in our legislative scheme that courts can interfere with
the choices expressed by spouses in their antenuptial contracts, section
7(3)(a) is a prime example. Other statutory provisions similarly empower a
court to alter arrangements that parties to a marriage have made to avoid
unfairness. Section 9 of the Divorce Act empowers a court to make an order
that the patrimonial benefits of the marriage be forfeited by one party in favour
of another, having regard to the duration of the marriage, the circumstances
that gave rise to the break-down of the marriage and any substantial
misconduct on the part of either of the parties. Section 8(2) of the MPA
empowers a court to replace the accrual system applicable to the marriage
with a matrimonial property system in terms of which accrual sharing, as well

3
[2021] ZACC 51 (31 December 2021) para [62].

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as community of property and community of profit and loss, are excluded.

Sections 9 and 10 of the MPA respectively empower a court to declare the
right to share in the accrual forfeit or to order that satisfaction of an accrual
claim be deferred on conditions that the court deems just. Section 16 of the
MPA empowers a court to step in where a party married in community of
property withholds his or her consent required in terms of ss 15 and 17 of the
Act. The judicial discretion granted in the abovementioned instances allows
courts to deviate from the strict application of the property regime chosen by
the parties concerned in circumstances where it would be inequitable to hold
the parties to their original antenuptial contract.

[10] Counsel submits that it is irrational that s 7(3)(a) permits courts to interfere in cases
where the parties contracted out of the default rule of community of property, but
withholds it from cases involving parties who also contracted out of the second
default rule of accrual.

ii. Violation of s 9(3) of the Constitution4

[11] Mrs. Greyling further contends that the cut-off date in s 7(3)(a) disproportionately
impacts women. The blanket deprivation of excluding spouses from the potential
benefits of a just and equitable redistribution order constitutes unfair discrimination
based on sex, gender, marital status, culture, race, and religion. As a result, it
operates to trap predominantly women in harmful, and toxic relationships when they
lack the financial means to survive outside of the marriage.

[12] Counsel submits that in considering this aspect, the court should adopt a generous
approach to interpreting the scope of the constitutional right protected by s 9(3).
Relying on City Council of Pretoria v Walker,5 counsel stressed that the court must
recognise that conduct that appears to be neutral and non-discriminatory may result

4
Section 9(3) – The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
5
1998 (2) SA 363 (CC) para [31].

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in discrimination. In anticipation of an argument that the exclusionary scope of s

7(3)(a) is gender-neutral, counsel submitted that such an argument relies on the
premise that husbands and wives are similarly affected by the lack of a discretion
where marriages out of community of property without the accrual are concluded
after 1 November 1984. This premise, in turn, relies on the assumption that
husbands and wives in heterosexual relationships are in the same financial positions
at the time of the marriage; that heterosexual relationships have the same financial
consequences for men and women, and that men and women who are parties to a
heterosexual marriage are therefore similarly situated when marriages end. Expert
evidence in the joint report by Professor Elsje Bonthuys and Dr. Anzille Coetzee
("the Bonthuys & Coetzee report") demonstrates that these assumptions are flawed.

[13] The Bonthuys & Coetzee report sketches the context of gender inequality in South
Africa. Bonthuys and Coetzee opine that even today, twenty-five years after the
transition to democracy, the intersecting inequalities of gender, race, and class still
render many women unable to access and realise their rights. They refer to a 2016
study wherein it was found that South African women and women-headed
households are significantly more likely to be 'multidimensionally poor' than males
or male-headed households. Black women remain the poorest group in South Africa.
As a result of their disproportionate poverty, women depend economically on male
family members, husbands, and intimate partners for their survival and that of their
children. The cumulative effect of a number of inequalities, e.g., gender income gap,
unequal access to land and education, and women being disproportionately situated
outside the formal economy, is that women often enter into marriage on a weaker
footing than men, with high levels of economic precarity and financial dependence.
They contend that:

'The decision to get married is there for one that many women make
with less autonomy than men, and with less agency to insist on terms
that would be advantageous to them.'

In addition, cultural understanding and practices associated with heterosexual

marriages often exploit and deepen these inequalities by supporting an unequal

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division of care and household labour between men and women in families. South
African cultures share the assumption that women are responsible for or naturally
predisposed towards child-rearing and household work. This often confines women
in heterosexual relationships at home, where they perform unpaid care and
household labour, while at the same time freeing up their husbands to develop
professionally and increase their wealth. This affects women's ability to participate
in paid labour on an equal footing with men in several respects. Bonthuys and
Coetzee express the view that given that women's ability to generate an income is
reduced by marriage, as statistically proven, and that women bear more
responsibility for housework and caring labour, a marriage out of community of
property with the exclusion of the accrual system would generally favour men. The
effects of gender equality are exacerbated by high levels of physical, sexual, and
other forms of violence which characterise intimate relationships. When courts do
not have the discretion to affect adjustments to a matrimonial property regime when
it is just and equitable to do so, it is typically the women who are unfairly
disadvantaged.

[14] Bonthuys and Coetzee opine that s 7(3) simultaneously discriminate on several
grounds and affect different groups of people differently. They refer to the
Constitutional Court's decision in Gumede v President of the Republic of South
Africa,6 where the court held that customary marriages concluded before the
Recognition of Customary Marriages Act 120 of 1998, came into operation would
effectively be marriages in community of property. They contend that the court
effectively created a judicial discretion in all customary divorces and state that:

'[E]very divorce court granting a divorce decree relating to a customary

marriage has the power to order how the assets of the customary
marriage should be divided between the parties, regard being had to
what is just and equitable in relation to the facts of each particular case.
This would require that a court should carefully examine all the
circumstances relevant to the customary marriage and in particular the

6
2009 (3) SA 152 (CC) para [44].

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manner in which the property of the marriage has been acquired,

controlled and used by the parties concerned, in order to determine, in
the final instance, what would be a just and equitable order on the
proprietary consequences of the divorce.'

In the experts' view, the judicial discretion created in Gumede is broader than the
discretion created in s 7(3)(a) and does not limit the discretion to marriages
concluded before or after a specific date.

[15] Mrs. Greyling's counsel submits that the time-bar, or cut-off date, in s 7(3)(a)
constitutes a blanket bar that permits no exception. The subsequent limitations of
rights are extensive. If the time-bar is removed, the discretion built into s 7(3)(a) will
provide a less restrictive means of achieving the purpose of the statute while
allowing the court to craft a just and equitable remedy in deserving cases.

[16] Mrs. Greyling contends that the limited and exclusionary application of s 7(3)(a) of
the Divorce Act constitutes unfair discrimination as prohibited by s 9(3) of the
Constitution and a limitation of the right to equality. He submits that once a limitation
of any right in the Constitution is shown to exist, the onus shifts to the state
respondents to justify the limitation.7 In this matter, neither of the respondents
opposes the relief sought. The Minister and the applicant part ways as far as the
remedy is concerned, but the deponent to the Minister's affidavit referred to the
'overwhelming need to amend section 7(3) of the Divorce Act'.

The Minister's submissions

[17] Although the Minister initially filed a notice of intention to oppose the application, he
had a change of heart and abides the court's decision. The Minister indicates that
the reason underlying the decision to file an answering affidavit is to supplement the
arguments raised by Mrs. Greyling in her founding affidavit and assist the court in

7
S v Makwanyane 1995 (3) SA 391 (CC) para [102]; Ferreira v Levin NO 1996 (1) SA 984 (CC)
para [44].

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establishing the views of the Department on the relief sought by Mrs. Greyling and
the proposed remedy.

[18] The Minister explains that the relief sought by Mrs. Greyling has been the subject of
consideration by the South African Law Research Commission ("the SALRC").8 As
a result it formed part of matters that the Minister approved for an investigation which
could lead to a possible legislative amendment. The SALRC is still investigating and
could not yet finalise an opinion.

[19] Based on the comments received subsequent to the publication of Issue Paper 34,
the Minister states that parties opposing the extension of the judicial discretion
contained in s 7(3)(a) past the time-bar of 1 November 1984, do so on the following
grounds:

i. It does not respect parties' freedom to contract;

ii. Normal contractual remedies apply to antenuptial contracts entered into
under coercion, justus error or fraud;
iii. There would be little chance of ignorance between contracting parties as the
notary would have explained alternatives to the parties, and even if the notary
failed to do so, "it has never been the object of the law to protect the foolish';
iv. A marital property system excluding any sharing is chosen deliberately, for
clear and well-considered reasons, and such decisions should be respected;
v. The judicial discretion applicable to marriages out of community of property
pre- the commencement of the MPA is a temporary emergency measure,
applicable to those who, for whatever reason, did not opt for the conversion
possibilities under s 21 of the Divorce Act;
vi. The extension of the judicial discretion would encourage litigation, increase
costs and extend the time of litigation;

8
Issue Paper 34 dealt with Review of Aspects of Matrimonial Property Law. It was replaced by
Issue paper 41. Before its revision Issue Paper 34, among others, considered whether s 7(3) of the
Divorce Act should be amended to extend the judicial discretion of the court provided for in the said
section, to marriages out of community of property with the exclusion of the accrual system. On 6
September 2021 the SALRC requested the respondents to submit comments on the matter raised
in Issue Paper 41 dealing with the Review of Aspects of Matrimonial Property Law, the closing date
for the submissions was 14 January 2022.

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vii. The extension of the judicial discretion would encourage cohabitation;

viii. Judicial discretion creates uncertainty;
ix. The extension of the judicial discretion would ignore the interests of creditors.

[20] The Minister points out that parties in favour of extending the judicial discretion to
marriages out of community of property with the exclusion of the accrual system post
the commencement date of the MPA, advanced the following arguments:
i. Women cannot be allowed to contract themselves and their children into
poverty;
ii. Women entering into an antenuptial contract with an express exclusion of the
accrual system are seldom making an "informed choice";
iii. There is a power imbalance between the parties;
iv. Our law recognises the imbalance between other contracting parties, such as
employer and employee and has legislated to protect the weaker party.

Amicus curiae's submissions

[21] The PAA sought to be admitted as amicus curiae because-

'The PAA is concerned that the court may be faced with an issue that
not only involves weighing up potential competing fundamental rights
(equality, dignity and freedom of belief and opinion) within the context
of s 36 of the Constitution, but also has the potential to not only affect
the rights of prospective and divorcing spouses but also third parties
and creditors.'

[22] The amicus is concerned that the court is requested to consider a complex and multi-
layered legal aspect without the benefit and availability of statistics and broad-based
or other empirical research such as research by the SALRC. The amicus recognises
the invaluable contribution of the academic input provided by the applicant's expert
witnesses but endeavours to provide a 'practical perspective and approach from
practitioners who deal with the pre-and post-divorce financial consequences as part
of their practices on a grassroots level.'

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[23] The amicus sheds light on the history of the debate regarding the extension of the
redistribution discretion of s 7(3). The amicus highlights that the South African Law
Commission ("the SALC") published Project 12: Review of the Law of Divorce:
Amendment of Section 7(3) of the Divorce Act, 1979 Report ("Project 12") in July
1990. The SALC concluded that s 7(3) –

'… was only meant to be an outlet valve to alleviate the unfairness in

existing marriages that had been made subject to the rigid
predetermined matrimonial property systems" and that the English
system allowing for a judicial redistribution discretion was, with the said
exception of section 7(3), never part of our law and "… was never
intended to be a matrimonial property system, alongside any other
system.'

After considering the comments and concerns that are incidentally similar to those
being raised by the amicus in this application, the SALC indicated that it was against
the extension of the court's discretion to distribute assets of spouses married after 1
November 1984 with the exclusion of community of property and community of profit
and loss and the accrual.

[24] The amicus, correctly in my view, states that s 7(3)(a) reflects the intention of the
legislature to grant the court a discretionary power to order a redistribution of assets,
even if such redistribution was to differ radically from the content of the antenuptial
agreement entered into between the parties. The amicus opines that by setting the
cut-off date of 1 November 1984, it appears that the legislature intended to address
the plight of women who suffered under the yolk of marital power until its
abolishment, by providing for a 'type of accrual sharing' to marriages out of
community of property that was entered into prior to 1 November 1984.

[25] The concerns raised by the amicus are the following:

i. The potential opening of floodgates and longer trial duration and higher
litigation costs that might be caused by the extension of s 7(3);

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ii. The impact of an extension of s 7(3) on the individual's right to freedom of

contract and the principle of pacta sunt servanda versus judicial interference
in respect thereof, and the potential of ensuing legal uncertainty;
iii. No concrete evidence or statistics are provided that women in general are in
a weaker bargaining position than men, or in support of the notion that people
(and especially women) do not really understand the consequences when
entering into an antenuptial contract;
iv. The court should exercise caution in allowing for behaviour and the broad
concept of 'behavioural law' to be incorporated into the law of contract,
thereby potentially creating a different and uncertain set of principles against
which antenuptial agreements should be evaluated;
v. An antenuptial agreement might be described as a contract sui generis, but it
remains a contract and public policy demands that contracts be honoured;
vi. The principle laid down in AB v Pridwin Preparatory School9 will apply if in
specific circumstances, the antenuptial agreement has an extremely
inequitable effect;
vii. Potential implication for creditors and other parties where reliance is placed
by such parties on the marriage contract and the consequences thereof;
viii. Horizontal v vertical impact of the Constitution in matters where two private
parties contract.

[26] The amicus refers to comparative law and the different approaches in other
jurisdictions and states:

'Other legal systems which provide for a judicial discretion regarding the
division of assets experience problems due to lack of predictability,
consistency and fairness.'

[27] In the final instance, the amicus submits that the retrospective working of the relief
sought, if granted, is unclear and that the question whether or not the applicant has
an interest in the relief sought depends on the interpretation and clarification of the

9
2019 (1) SA 327 (SCA).

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legal position on this issue. This issue is relevant to the applicant's locus standi in
the current application and needs to be addressed before the constitutional validity
of the cut-off date incorporated in s 7(3)(a) of the Divorce Act is considered.

Locus standi

[28] The amicus submits that specific rights vested in Mrs. Greyling and her husband at
the time of their marriage and the registration of their antenuptial contract. As a
result, the exercising of the parties' rights pertaining to the division of their assets is
deferred until the dissolution of the marriage. Thus, the amicus argues, because the
matrimonial property regime and its consequences upon divorce were established
at the time that the parties got married, the applicable Act that governs the
dissolution of the marriage was the Divorce Act as it then read. The amicus asks the
following question:

'[D]oes a party upon registration of the antenuptial contract obtain a

vested right to enforce the patrimonial consequences of the contract in
accordance with the law as it was at the time of entering into the
contract, in this case the Divorce Act in its unamended form? If so, can
an order of constitutional invalidity of [a] part of section 7(3)
(prospectively or retrospectively to the date that the Constitution came
into effect) change the position that was established at the time of
concluding the antenuptial contract?'

The amicus submits that the right to have the dissolution of the marriage determined
in accordance with the antenuptial agreement, vested at the time of entering into the
agreement. The law applicable at the time was the Divorce Act. As there was no
Constitution when the applicant and the third respondent married, there could be no
constitutional inconsistency. The applicant can also not be provided with more rights
at divorce than she had at the conclusion of the marriage, and a declaration of
constitutional invalidity cannot expand the applicant's rights.

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[29] Based on the judgment of the Supreme Court of Appeal in Four Wheel Drive
Accessory Distributors CC v Rattan NO10 the amicus submits that if the court applies
the legislation that was applicable at the date of the entering into the antenuptial
agreement, when the contractual rights vested, a declaration of constitutional
invalidity will not hold any benefit for the applicant and will be merely academic. In
that event, the applicant does not have locus standi to bring these proceedings.

[30] Counsel for the applicant submits that s 7(3) is a power exercised by the court at the
time of divorce, not at the time any antenuptial contract was concluded. As Mrs.
Greyling's divorce proceedings are pending and were instituted after the
commencement of the final Constitution, no questions of constitutional
retrospectivity arise at all. Counsel highlights that the amicus raised the issue of
standing in the course of its heads of argument a week before the hearing after the
applicant has filed all of its affidavits. Standing is indeed an issue of law, but it is
determined on the basis of the pleadings, in this case, the affidavits. In addition, the
applicant made it clear that the challenge is not only brought in her own interests. It
is evident from the founding affidavit that the application falls within the ambit of both
sections 38(a) and (c) of the Constitution.

[31] I am of the view that s 7(3) of the Divorce Act provides a power to be exercised by
the court at the time of divorce. It is only at the time of the divorce that s 7(3) of the
Divorce Act is triggered. Even in its current form, the section provides relief to
spouses that meet the jurisdictional requirements at the time of divorce, irrespective
of what the parties agreed to in the antenuptial agreement. I agree with Mahlantla J,
who recently held in the context of the enforcement of rights under a will that public
policy must be determined and measured at the time at which rights are enforced
rather than at the time the will was executed.11 The contention that the Divorce Act
applies as it read at the time of the conclusion of the marriage is unsustainable.

[32] As is indicated herein below, s 7(3)(a) is not aimed at changing the matrimonial
property regime agreed to by the parties, but to provide relief in certain carefully

10
2019 (3) SA 451 (SCA).
11
King N.O v De Jager 2021 (4) SA 1 (CC) at para 73.

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circumscribed instances to spouses who contributed directly or indirectly to the

maintenance or increase of the estate of their spouses whilst married out of
community of property with the exclusion of the accrual system on the date when
the marriage is terminated by divorce. The applicant has the necessary standing to
bring this application.

Discussion

(i) The tests to be applied in evaluating the constitutional attack

[33] Mrs. Greyling claims that the constitutional validity of s7(3)(a) needs to be
determined with reference to s 9(1) and s 9(3) of the Constitution. A distinction is
drawn between the test for constitutional validity in terms of these two subsections
of s 9 of the Constitution. Section 9(1) requires that all persons in similar positions
must be afforded the same rights.12

[34] For purposes of this application, the Constitutional Court’s approach as set out in
Harksen v Lane N.O.13 is instructive. A court needs to answer the following question:

‘Does the provision differentiate between people or categories of

people? If so, does the differentiation bear a rational connection to a
legitimate government purpose? If it does not, then there is a violation
of s 8(1) [the equivalent of s 9(1) of the 1996 Constitution]. Even if it
does bear a rational connection, it might nevertheless amount to
discrimination.’

[35] In Phaahla v Minister of Justice and Correctional Services and Another (Tlhakanye
Intervening)14 the Constitutional Court reiterated that it is a well-established principle
in our law that where an impugned provision differentiates between categories of

12
Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) at para [24].
13
1998 (1) SA 300 (CC) 324H-I.
14
2019 (2) ZACR 88 (CC) at para [46].

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people, it must bear a rational connection to a legitimate government purpose,

otherwise the differentiation is in violation of s 9(1) of the Constitution. Rationality
operates as a minimum standard, a constitutional baseline, that applies even in
circumstances where no fundamental right or other constitutional standard is directly
applicable.15

[36] In New National Party v Government of South Africa,16 Yacoob J drew a distinction
between rationality and reasonableness as standards of review of legislative
schemes. He held that the former was the appropriate standard in light of the
separation of powers. Section 9(1) thus presents a very low threshold to meet, with
the Constitutional Court in New National Party of South Africa and United
Democratic Movement v President of the Republic of South Africa17 invoking a
narrow notion of 'rationality' as mere connection between a legitimate state purpose
and the means chosen, when it held the legislative scheme to be rational and thus
constitutional.

[37] Section 9(3) of the Constitution provides a more rigorous prohibition on unfair
discrimination. Where there is an allegation that a particular legislative rule violates
s 9(3) of the Constitution, a two-stage analysis is followed. In the first stage it must
be determined whether the impugned rule differentiates between people or groups
and whether the differentiation amounts to discrimination. Once it has been
determined that the differentiation amounts to discrimination, it must be determined
whether or not the discrimination is unfair.18

15
Price, A. The content and justification of rationality review. (2010) 25 SAPL 346-381, 346.
16
1999 (3) SA 191 (CC) para [24].
17
2003 (1) SA 495 (CC).
18
Harksen No. O. v Lane 1998 (1) SA 300 (CC).

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(ii) Marriage and matrimonial property regimes

[38] A civil marriage is traditionally defined as 'the legally recognised life-long voluntary
union between one man and one woman to the exclusion of all other persons'.19
Despite the prevalence of divorce in modern days, it can still be assumed that parties
conclude a marriage with some sense of permanency, and at minimum, a long-term
commitment in mind. Hahlo,20 stated that although marriage is a contract in that it is
based on the consent of the parties, it is not an ordinary private contract. He
explained – '… the act of marriage is a juristic act sui generis, and the relationship
which it creates is not an ordinary contractual relationship but involves a status of a
public character.' Heaton and Kruger21 argue that there are so many differences
between a contract and a civil marriage as a type of agreement, that it is undesirable
to describe a civil marriage as a type of contract. For current purposes, it is relevant
to take note of the fact that one of the key differences between marriage and a
contract is that a marriage cannot be dissolved by consent – only the death of a
spouse or a decree by a competent court can bring an end to it.22

[39] The consequences of a marriage can be categorised as personal or proprietary

consequences. The duties of cohabitation, conjugal fidelity and reciprocal support
are personal consequences of a marriage. These consequences are 'of the essence'
of the matrimonial relationship and cannot be excluded by agreement. 23 Community
of property and profit and loss is a proprietary consequence of marriage and can be
excluded or modified by antenuptial contract, or changed by postnuptial contract.24

19
Heaton, J., Kruger, H. South African Family Law. 4th ed. LexisNexis, 13. This definition highlights
one of the differences between customary, Muslim and Hindu marriages that permit polygamy, and
civil unions between parties of the same sex under the Civil Unions Act 17 of 2007.
20
Hahlo, HR. The South African Law of Husband and Wife. 5th ed. JUTA, 22.
21
Heaton and Kruger note 19, above.
22
Hahlo note 20, above.
23
Ibid. See also Heaton and Kruger note 19, above, chapter 5.
24
Hahlo, note 20, above, 282, 258. Heaton and Kruger note 19, above, chapter 6. Sections 21 and
25 of the MPA.

18
 19

[40] Two main matrimonial property regimes existed in South Africa prior to the
commencement of the MPA on 1 November 1984. These were (i) marriages in
community of property with the marital power, and (ii) marriages out of community
of property with the exclusion of both community of profit and loss and the marital
power.25 Marriage in community of property is characterised by the joint nature of
ownership of assets by the spouses. In marriages out of community of property both
spouses retained their separate estates.26 The MPA brought about major changes.
The marital power was abolished in respect of marriages in community of property,
which resulted in a total abolishment of the notion of marital power, and the Act
introduced the accrual system as a second category of marriages out of community
of property.

[41] For all practical purposes,27 intending spouses can now choose between three
matrimonial property systems: (i) community of property, (ii) marriage out of
community of property with the exclusion of the accrual system, and (iii) marriage
out of community of property with the accrual system. Each of these matrimonial
property regimes has its advantages and disadvantages. Since this application deals
exclusively with marriages out of community of property with the exclusion of the
accrual system, it is not necessary to consider the advantages and disadvantages
of all three standard regimes.

[42] Where both parties to a marriage out of community of property with the exclusion of
the accrual system are economically active and support each other to more or less
the same degree to be economically successful in their respective endeavours, it is
difficult to identify any real disadvantages that this matrimonial property regime has
for the parties. Often, however, one party becomes economically inactive, or less
active than the other after the conclusion of the marriage. While it was historically
the wife who sacrificed her career and exited the labour market, or took up
employment with family-compatible hours at a lower salary to run the joint household

25
See, inter alia, Heaton and Kruger note 19, above, 61.
26
See inter alia Robinson, J. A., Human, S., Boshoff, A. and Smith, B. Introduction to South African
Family Law. LexisNexis, 132.
27
Hahlo, note 20 above, 311 explains that nothing prevents parties from constructing their own
made-to-measure system.

19
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and take care of the children, occurrences of men fulfilling the traditional role of
homemaker while their professional wives pursue their careers are increasing. Both
scenarios provide for an economic inactive or less active party ("the economically
disadvantaged party"). The main disadvantage of a marriage out of community of
property with the exclusion of the accrual system and thus a system of complete
separation, in these circumstances, is that no matter how long the marriage has
endured and how much the economically disadvantaged party has contributed to
the other party's economic and financial success, the economically disadvantaged
party does not as a right share in the latter's gains. The advantage of a system of
complete separation for the economically active party, is that at the dissolution of
the marriage through divorce, he or she reaps the fruits of both spouses'
contribution, because only one estate increased during the duration of the marriage.
Women are, however, still predominantly found in the position of the economically
disadvantaged party. This is an international phenomenon and not unique to the
South African context.28 The wide manifestation of women as economically
disadvantaged as indicated in the experts' reports, belies the amicus' submission
that recent changes in women's circumstances render the relief provided in s 7(3)(a)
of little consequence.

[43] I pause to note that although emphasis is placed on the position where one party is
rendered an economically disadvantaged party because of the interaction between
the provisions of the parties' antenuptial agreement and the parties' post-marital
realities, it is likewise possible for both spouses to remain economically active but
for one party to directly or indirectly contribute to the maintenance or the growth of
the other's estate ("the contributing spouse"). A similar inequality will arise, although
the consequences on divorce are not so pronounced or dire for the contributing
spouse as for an economically disadvantaged party.

[44] The legislature, in an effort to address the obvious disadvantage suffered by

economically disadvantaged parties in marriages out of community of property

28
Sinclair, J. ‘Family Rights’ in Van Wyk, D., et al (eds) Rights and Constitutionalism – The New
South Africa Legal Order 1994 JUTA 502-572, 548.

20
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concluded before the commencement of the MPA, introduced s 7(3)(a). Botha JA

explained in Beaumont v Beaumont29 that s 7(3) was introduced as –

'an entirely novel concept into this branch of our law: the power of the
Court under certain circumstances to order the transfer of assets of the
one spouse to the other.'

[45] Botha JA coined an order made in terms of s 7(3) for convenience sake 'a
redistribution order', and agreed with Kriegler J, as he then was, who held in the
court a quo that the creation of the power enabling a court to make such a
redistribution order was 'obviously a reforming and remedial measure'. He
continued:

'What the measure was designed to remedy is trenchantly

demonstrated by the facts of the present case: the inequity which could
flow from the failure of the law to recognise a right of a spouse upon
divorce to claim an adjustment of a disparity between the respective
assets of the spouses which is incommensurate with their respective
contributions during the subsistence of the marriage to the maintenance
or increase of the estate of the one or the other.'

[46] A few years later, in Beira v Beira30 the court explained that s 7(3):

'[w]as enacted to redress a deficiency, namely to enable both spouses

to enjoy their rightful shares in the accumulated wealth residing in the
one which their joint endeavours during the subsistence of the marriage
had brought them.'

[47] Although Botha JA coined an order granted under s 7(3) 'conveniently as a

redistribution order', a s 7(3) order does not bring about a change regarding the
agreed-to matrimonial property regime that determines and regulates the proprietary

29
1987 (1) SA 967 (A) 987G.
30
1990 (3) SA 802 (W).

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consequences of a particular marriage. Robinson and Horsten31 emphasise that s

7(3) does not grant the court a judicial discretion to create a system of accrual that
the parties themselves did not create or to redistribute the spouses' assets in a way
that seems fair. In Beira, supra, Leveson J expressly stated that it was not the aim
of the legislature for a s 7(3) order to put the parties in equal financial positions. The
aim of s 7(3) is to redress the unfair financial imbalance flowing from the very nature
of a marriage being out of community of property in circumstances where one party
contributed to the other's maintenance or the increase of the other's estate during
the existence of the marriage.32 A spouse does not qualify as having made a
contribution as a matter of course by virtue of being married,33 the jurisdictional
requirements of s 7(3) read with ss 7(4), (5) and (6) need to be met. The practical
effect of a s 7(3) order is that the party who contributed to the other's gain is
compensated for its contribution to the extent that a court finds just and equitable.
To this end, the court is cloaked with a wide discretion taking into account an infinite
variety of factors.34

[48] The legislature prescribed a number of prerequisites that must be satisfied before
an order can be granted in terms of s 7(3)(a). The first requirement, coincidentally
the requirement that underpins this application, is that the marriage must have been
entered into before the coming into operation of the MPA. It is, however, not open to
all parties married out of community of property before the commencement of the
MPA to approach the court for a redistribution in the nature as provided for by s
7(3)(a), a fact attested to by the reality that the courts were not flooded by
applications for redistribution when the MPA commenced, as was predicted by
some. The remaining requirements act as the proverbial gatekeepers, in that the
remedy is only available in (i) the absence of any agreement between the parties

31
Robinson, R. and Horsten, D. The Quantification of “Labour of Love”: reflections on the
Constitutionality of the Discretion of a Court to Redistribute Capital Assets in terms of Section 7(3)
-(6) of the South African Divorce Act. (2010) Speculum Iuris 96-117, 115.
32
Robinson and Horsten note 31 above, 97-98.
33
Sonnekus, note 37 below, 763.
34
Apart from the direct and indirect contributions made by the applicant, factors are listed in s 7(5).
See also Robinson and Horsten, note 31 above, 109.

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regarding the division of their estates, where an applicant (ii) contributed directly or
indirectly to the maintenance or increase of the estate of his or her spouse during
the subsistence of the marriage, either by the rendering of services or the saving of
expenses which would otherwise have been incurred.

(iii) Enquiry into the constitutional validity of s 7(3)(a)

[49] To determine whether or not the Bill of Rights, and thus section 9 of the Constitution,
applies to matrimonial property law, one need only to turn to the decision of the
Constitutional Court in Van der Merwe v Road Accident Fund and Another (Women's
Legal Centre as Amicus Curiae)("Van der Merwe").35 The facts in Van der Merwe
are distinguishable, however, in Van der Merwe the plaintiff's claim was met by a
submission that:

'[M]arriage is a matter of choice and so too are the proprietary

consequences of marriage. The applicant chose marriage in community
of property and … it is fair and reasonable that she be kept to the
immutable consequences of her choice. It is not now open to her to
challenge the constitutional validity of the law she opted to marry
under'.36

[50] Moseneke DCJ responded as follows:

'[61] This line of reasoning falters on two grounds. First, the

constitutional validity or otherwise of legislation does not derive from the
personal choice, preference, subjective consideration or other conduct
of the person affected by the law. The objective validity of a law stems
from the Constitution itself, which in s 2, proclaims that the Constitution
is the supreme law and that law inconsistent with it is invalid. Several
other provisions of the Constitution buttress this foundational injunction

35
2006 (4) SA 230 (CC).
36
Par [59].

23
 24

in a democratic constitutional State. A few should suffice. Section 8(1)

affirms that the Bill of Rights applies to all law and binds all organs of
State including the Judiciary. Section 39(2) obliges courts to interpret
legislation in a manner that promotes the spirit, purport and objects of
the Bill of Rights. And importantly, s 172(1) makes plain that, when
deciding a constitutional matter within its power, a court must declare
that any law that is inconsistent with the Constitution is invalid to the
extent of its inconsistency. Thus the constitutional obligation of a
competent court to test the objective consistency or otherwise of a law
against the Constitution does not depend on and cannot be frustrated
by the conduct of litigants or holders of the rights in issue. Consequently,
the submission that a waiver would, in the context of this case, confer
validity on a law that otherwise lacks a legitimate purpose has no merit.

[62] Second, ordinarily the starting point of a justification enquiry would

be to examine the purpose the government articulates in support of the
legislation under challenge. In this case the government did not proffer
a purpose to validate the impugned provision. If anything, the
government contends that the provision is inconsistent with the
Constitution because it is irrational or unfairly discriminatory. It correctly,
in my view, disavowed the existence of a legitimate purpose for
withholding a right of recourse for patrimonial loss from physically
brutalised spouses in marriages in community of property whilst
granting the protection to spouses in other forms of marriages or indeed
to parties in other domestic partnerships.

[63] Of course, the pursuit of a legitimate government purpose is central

to a limitation analysis. The Court is required to assess the importance
of the purpose of a law, the relationship between a limitation and its
purpose and the existence of less restricted means to achieve the
purpose. However, in this case there is no legitimate purpose to validate
the impugned law. The absence of a legitimate purpose means that
there is nothing to assess. The lack of a legitimate purpose renders, at
the outset, the limitation unjustifiable. I am satisfied that s 18(b) of the

24
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Act is inconsistent with the Constitution because it limits the equality

provision of s 9(1) without any justification.'

[51] As in Van der Merwe, the Minister did not proffer a purpose to validate the impugned
cut-off date incorporated in s 7(3)(a). In fact, the Minister filed its answering affidavit
with the aim of supplementing the arguments raised by the applicant. The amicus,
however, highlighted the legislative purpose of s 7(3) and I am bound to consider it.

Section 9(1) rationality enquiry

[52] The legislature crafted a reforming and remedial measure but limited its application
to marriages out of community of property concluded before the MPA commenced.
Since the possibility of granting a redistribution order was created concomitantly with
the introduction of the system of accrual sharing, it can arguably be assumed that s
7(3) was intended to be a transitional measure,37 as submitted by the amicus. The
legislature arguably did not extend the relief to marriages out of community of
property excluding the accrual system because the MPA provided the option of
choosing between a system that includes accrual sharing and a system that
excludes accrual sharing.38 Parties seemingly exercise a deliberate choice when
they exclude the accrual system and incorporate that choice in a written antenuptial
agreement executed before a notary. The question is whether in this context it can
be said that legislative innovation that brought into force s 7(3) of the Divorce Act to
address the plight of economically disadvantaged parties who did not have the
opportunity to choose a more beneficial marital regime in the form of the accrual
system, is irrational. By restricting the operation of s 7(3) to marriages concluded
before 1 November 1984 the legislature honoured the principle of freedom of
contract and pacta sunt servanda, and that is not without merit. It cannot be held

37
Sonnekus, J. Herverdelingsdiskresie by egskeiding, ‘n deugsame vrou en pacta sunt servanda.
2003 SALJ 761.
38
Hahlo, note 20 above, 384; Van Schalkwyk L. N., Gumede v President of the Republic of South
Africa and Others 2009 (3) SA 152 (KH), 2010 De Jure 176-191, 183.

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that the inclusion of the time-bar was irrational. This is, however, not the end of the
matter.

Section 9(3) enquiry

[53] For the purpose of a rationality enquiry in terms of s 9(1) of the Constitution, the fact
that s 21 of the MPA provides parties with the opportunity to jointly apply for leave
to change their matrimonial property system, is of no-consequence. As is the fact
that the interaction between the Divorce Act and the MPA affords the relief provided
for in s 7(3)(a) of the Divorce Act to spouses married out of community of property
before 1 November 1984, despite them not having utilised the option in s 21 of the
MPA to cause the provisions of Chapter 1 of the MPA to apply in respect of their
marriages. These factors are, however, relevant in the s 9(3) enquiry, because,
parties married out of community of property with the exclusion of the accrual after
1 November 1984 and parties married out of community of property before 1
November 1984 who refrained from or neglected to cause the provisions of Chapter
1 of the MPA to apply in respect of their marriages, find themselves in similar
positions. No basis exists to exclude the view that parties made a deliberate choice
in both scenarios. And yet economically disadvantaged parties from the former
group cannot approach a court for the relief provided for in s 7(3)(a), but
economically disadvantaged parties from the latter group can, solely based on the
date of the marriage.

[54] It cannot be gainsaid that s 7(3)(a) of the Divorce Act differentiates between spouses
married out of community of property who were married before the MPA
commenced, and spouses married out of community of property with the exclusion
of the accrual system after the MPA commenced. The obvious disparity and inequity
that ensues when parties who are married out of community of property and where
one party contributed to the maintenance or increase of the estate of the other party,
file for divorce, moved the legislature to enact s 7(3)(a) of the Divorce Act. By
incorporating a cut-off date for the application of s 7(3), economically disadvantaged
parties who were married after 1 November 1984 cannot approach a court to make

26
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an order that is just and equitable if they meet the remaining jurisdictional
requirements of s7(3). Thus, the inequity which is caused because the economically
disadvantaged spouse nevertheless made a direct or indirect contribution towards
the other spouse's estate, persists.

[55] It is, in my view, not necessary to determine whether the cut-off date affects black
women to a greater extent than other women in the country, or whether it is indeed
an illusion to accept that women, in general, have a choice to agree to the inclusion
or exclusion of the accrual system. Aspects like the now abolished marital power
and the man's headship of the family are factors that contributed, and continues to
play a significant role in the way some men, and even women themselves, regard
the roles, and stature of women in society. Only those who go blindfolded through
life can deny that gender equality has not yet been achieved in South Africa. In fact,
the South African society still has a long way to go. However, the equality issue
brought to the fore by this application is not solely attributable to race or gender or
religion, but also to economic inequity. The grounds listed in s 9(3) of the Constitution
are non-exhaustive and discrimination need not be embedded in the grounds listed
in s 9(3) before constitutional protection can be claimed.

[56] Bonthuys39 points out:

'[A]s a general proposition, antenuptial contracts usually favour

wealthier spouses by excluding the common-law system of property
sharing with poorer spouses.'40

The contributory role of gender and race in the equation is found therein that:

'As a consequence of gender discrimination, women tend to be poorer

than men and to earn less in the marketplace. Stereotypical roles also

39
Bonthuys, E, Public Policy and the Enforcement of Antenuptial Contracts: W v H. (2018) 135
SALJ 237-248, 241.
40
See also Mosey, B. How Ante-Nuptial Agreements Perpetuate Male Dominance: A Critical
Feminist Analyses of Radmacher v Granatino [2010] UKSC 42. De Lege Ferenda (2021) Vol IV,
Issue ii, 50-65.

27
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entail that women tend to devote more time and effort to childcare and
housework which further impacts on their earning capacity.'

Within this context black women are regarded as the 'marginalised of the
marginalised.'41 The constitutional validity of s 7(3)(a) should, however, in my view,
not solely be considered from the perspective of the parties' position as it is when
an antenuptial agreement is concluded, because there can be a plethora of
legitimate reasons as to why parties would agree to conclude a marriage out of
community of property with the exclusion of the accrual system, e.g., a proud less
affluent party who is intending to marry the love of their life who happens to be
wealthy, may wish to demonstrate that the marriage is concluded solely for the
reason of love, and not to gain any future patrimonial benefits.

[57] The inequality at hand is caused when, after the conclusion of the marriage, a
distortion is caused by the fact that one spouse contributes directly or indirectly to
the other's maintenance or the increase of the other's estate without any quid pro
quo. In ideal circumstances where parties commit 'for better and worse, until death
do us part' the economic inequality that follows when one spouse contributes to the
other's maintenance or estate growth while its own estate decreases or remains
stagnant, may not even be noticed. The unity of marriage conceals economic
disparity because it is, for the most part, during the subsistence of the marriage of
no consequence. However, where it becomes apparent on divorce that one spouse's
estate increased because of the other spouse's contribution while the latter spouse's
estate decreased, the party who received maintenance from the other or whose
estate increased because of a direct or indirect contribution by the other, have
received what can be described as an unfair economic advantage on the basis of
the marriage. This is the inequality that can be addressed by an order in terms of s
7(3)(a), irrespective of the race or gender of the economically disadvantaged party.
This remedy is currently available only to spouses married before 1 November 1984.

41
N Masiko City Press 17 August 2018.

28
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[58] Section 7(3)(a) differentiates between parties solely based on the date of
commencement of the MPA in circumstances where parties could either (i) apply to
incorporate the accrual system into their existing marriage property regime and for
one or other reason, failed, or refrained from doing so, and (ii) where parties decided
to exclude the accrual system. The only difference between these groups is
speculative in that it can be argued that there might be members in the first group
who did not know that they could incorporate the accrual system post the
commencement of the MPA, while a deliberate choice underpinned the position of
the second group. Speculation aside, these groups are par excellence in a similar
situation, and yet the one group is denied the benefit of s 7(3)(a) only on the basis
of the date on which their marriage was concluded. The differentiation amounts to
discrimination based on the date on which a marriage was concluded because
economically disadvantaged parties’ human dignity is impaired if they cannot
approach the court to exercise the discretion provided for in s 7(3) of the Divorce
Act. Unlike their counterparts whose marriages were concluded before 1 November
1984, economically disadvantaged parties who contributed to their spouses’
maintenance or the growth of their estates, are vulnerable parties whose only
recourse is to approach the court for maintenance. The unequal power relationship
implicit to any maintenance claim, and the extent to which it renders an economically
disadvantaged party vulnerable, in these circumstances speaks for itself.

[59] Section 7(3) is subject to subsections (4), (5) and (6). It is evident from a reading of
these provisions that any party approaching the court for the relief provided for in s
7(3) must make out a case that it contributed directly or indirectly to the maintenance
or increase of the estate of the other party during the subsistence of the marriage. It
is patently unfair that an economically disadvantaged party who can make out a case
for relief in terms of s 7(3), whose contribution is not recognised and adequately
compensated by the spouse who benefitted from such contribution, is metaphorically
left out in the cold at the mercy of the spouse whose estate increased, without any
recourse to the court to address the injustice.

[60] Section 7(3) of the Divorce Act was recently amended by s 1 of Act 12 of 2020 with
effect from 22 October 2020, to include marriages out of community of property –

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'entered into in terms of any law applicable in a former homeland,

without entering into an antenuptial contract or agreement in terms of
such law.'

Section 7(3)(c) does not contain a cut-off date as ss 7(3)(a) and (b) do. This fact, in
itself raises questions regarding the equal treatment of spouses married out of
community of property with the exclusion of the accrual system in South Africa.

[61] The adjustive judicial power provided by section 7(3) of the Divorce Act is aimed at
avoiding grossly inequitable discrepancies in the financial position of spouses on
divorce. Irrespective of whether the section was initially intended as a transitional
provision, the innate restriction in s 7(3)(a) based solely on the date on which a
marriage was concluded, does not in 2022, muster constitutional scrutiny. The
limitation of the relief provided for in s 7(3)(a) of the Divorce Act to marriages
concluded prior to the commencement of the MPA violates s 9(3) of the Constitution.
The cut-off date contained in s 7(3)(a) unfairly discriminates against people married
according to a system of complete separation of property on the ground of the date
of their marriage. I share the view expressed by Sinclair:42

'The discrimination takes the form of denying to those people a remedy

to relieve injustice that is granted to persons married with an identical
system, but earlier.'

And:

'For couples who live on their salaries and do not have the opportunity
to amass property the matrimonial property system that governs their
marriage turns out to be the panacea for the poverty that will be
experienced most acutely by the divorced women [or any economically
disadvantaged party]. For the poor, matrimonial property law is as
important as an elaborate estate planning exercise. But for many
thousands of people the matrimonial home and a share in pension and
other retirement benefits accumulated during marriage make the
difference between forced reliance on exiguous welfare and some form
of financial security. To these people the sharing of property acquired

42
Sinclair, note 28 above, 552.

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 31

by joint efforts is crucial. To be denied an equitable remedy on the

ground of the date of one's marriage is unacceptable'.

[62] The amicus curiae drew attention to several objections to declaring the cut-off date
in s 7(3) unconstitutional, and I find it apposite to briefly deal with these since I have
considered the amicus's submissions:

i. Pacta sunt servanda: The Constitutional Court has already pronounced on

the applicability of the Constitution and the pacta sunt servanda argument in
Van der Merwe, as indicated above. The fact that parties deliberately chose
to exclude the accrual system after 1 November 1984 is one of the myriads
of factors that a court will take into consideration when crafting an order that
is just and equitable in appropriate cases where the jurisdictional
requirements for an application in terms of s 7(3)(a) are met.

ii. Cognisance must be taken thereof that the legislature has already deemed it
necessary to provide courts with the discretion to intervene and, in
appropriate circumstances, craft orders that will bring about consequences
that differ radically from the consequences that generally flow from a chosen
matrimonial property regime, thereby overriding pacta sunt servanda:

a. When a decree of divorce is granted, a court, under s 9(1) of the

Divorce Act, may make an order that the patrimonial benefits of the
marriage be forfeited by one party in favour of the other, either
wholly or in part. The factors that a court may consider in exercising
its discretion under s 9 are limited. The section does not empower
the court to award a portion of an errant party's separate estate to
the other party. Forfeiture is also limited to the benefits of the
marriage and merely entails that that the spouse loses the claim he
or she has to financial benefits generated by the other spouse;43
b. Under s 8 of the MPA a court may grant the immediate division of
the accrual stante matrimonio and under s 8(2) order that the

43
Rousalis 1980 (3) SA 446 (C) at 450D-E. See also Heaton and Kruger note 19 above 135-137.

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accrual system applicable to the marriage be replaced by a

matrimonial property system in terms of which accrual sharing, as
well as community of property and community of profit and loss, are
excluded;
c. Under s 20 of the MPA a court may, on application, order the
immediate division of the joint estate in equal shares or on such
other basis as the court may deem just, and under s 20(2) order that
the community of property be replaced by another matrimonial
property system;

The power of the court under ss 8(2) and 20(2) is drastic and will, other than
an order granted in terms of s 7(3)(a), result in substituting or replacing one
matrimonial property regime for another.

iii. The amicus submitted that the existence of a maintenance claim negates the
necessity of a remedy akin to what is currently afforded by s 7(3)(a) of the
MPA. I disagree. The difference between the nature of a maintenance claim
and an order granted in terms of s 7(3)(a) renders this submission nugatory.
A party receiving maintenance remains dependant on the other. It is a well-
known that post-divorce maintenance as a mechanism to alleviate the plight
of women who are economically reliant on their spouses is often inadequate
due to default.44 It is unjustifiable that a party who contributed to the other's
maintenance and estate growth during the subsistence of the marriage must
rely on a remedy that signifies their continued dependence on the other. Over
the years the understanding of a marital relationship shifted from being
regarded as a protector-and-dependant relationship, to that of a partnership
between equals. Section 7(3)(a), inter alia, recognises the economic value of
services provided in the domestic sphere. Everyone has an inherent dignity
and the right to have their dignity respected and protected. An economically
disadvantaged party's dignity is implicitly impaired when that party's

44
Sinclair, note 28, supra, 553.

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contribution made on the basis of the marriage is not recognised and he or

she is left to claim maintenance alone.

iv. Whenever a court is provided with a discretion, uncertainty in the outcome of

proceedings prevails. Neels45 explains that the tension between legal
certainty on the one hand and reasonableness and fairness in the particular
circumstances of each case, is not novel. The overriding certainty that does
prevail in light of s 7(3)(a) is that the court is bound to grant an order that is
just and equitable. Undue harshness can flow from any unalterable
matrimonial property regime due to the unique factual context within which
spouses find themselves.46 The legislature provided courts with a discretion
to change the matrimonial property regime in relation to marriages in
community of property and marriages out of community of property with the
inclusion of the accrual system. The same discretion is not afforded in relation
to marriages out of community of property with the exclusion of the accrual
system. Any uncertainty regarding the outcome of a s7(3)(a) application is
preferable to 'irremediable harshness' that might flow from circumstances
where a spouse in a marriage out of community of property excluding the
accrual system contributes directly or indirectly to his or her spouse's
accumulation of wealth on the basis of the marriage, and is deprived of the
benefits of his or her contribution, without being compensated therefor, on
divorce. Given the Constitutional Court's recent decision in Gumede, supra,47
which extended the judicial discretion to redistribute assets to spouses in all
customary marriages, it can safely be said that legal uncertainty about the
financial outcome of divorce does not carry excessive weight and certainty
does not trump considerations of justice and equality.48

45
Neels, J. L. Substantiewe geregtigheid, herverdeling en begunstiging in die internasionale
familiereg. 2001 4 TSAR 692- 709, 692.
46
Sinclair, note 28 , supra, 551 fn 189.
47
Gumede, note 6 above.
48
See also Heaton and Kruger, note 19 above, 142.

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v. The cut-off date in s 7(3)(a) is in itself the cause of legal uncertainty and
extensive legal costs. Economically disadvantaged spouses need to rely on
ingenious manoeuvres by their legal representatives in an attempt to claim a
share of the benefits acquired by their spouses due to their contributions
made on the basis of the marriage when the marriage's future was rosy. If
both spouses are aware that direct and indirect contributions by them to the
other's maintenance and estate growth during the subsistence of the
marriage may be accounted for at the dissolution of the marriage on divorce,
there are no innate uncertainties that can prejudice any party. Such
knowledge will provide a fair basis for the settlement of proprietary issues on
divorce. A declaration of constitutional invalidity that will result in the
amendment of the existing position by striking out the cut-off date contained
in s 7(3)(a), will not in itself, leave legal representatives who provided advice
relating to the consequences of concluding an antenuptial agreement liable
to client's who might be confronted with s 7(3)(a) applications if their
marriages were concluded after 1 November 1984.

vi. The amicus raised the issue that creditors of the advantaged spouse may be
affected when a court grants an order in terms of s 7(3)(a). The position of
creditors is not a novel issue as creditors' rights can theoretically be affected
by s 7(3)(a) orders as the section currently reads, and by orders granted in
terms of s 9, s 8 and 20 of the MPA. No novel position will be created if the
application of s 7(3)(a) is extended to all marriages out of community of
property with the exclusion of the accrual system.

vii. The amicus submits that other legal systems that provide for a judicial
discretion regarding the division of assets experience problems due to a lack
of predictability, consistency, and fairness. I did not undertake a
comprehensive comparative study but mainly relied on academic publications
when considering this submission. The article 'The financial consequences of
divorce: s 7(3) of the Divorce Act 1979 – a comparative study' by Nicholas
DC Dillon, published in XIX CILSA 1986, is instructive. Dillon states the
following:

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'In England the right of freedom to contract between spouses

exists and the parties may order their property rights as they think
fit. Nonetheless the court has a discretion to vary or even to
extinguish any marital contract.
In New Zealand a similar view is taken and the parties are free to
make marital contracts but the courts retain a discretion not to
give effect to contracts that they consider unjust.49
In Canada each province has its own rules in regard to the validity
and effect of marriage contracts. All the provinces allow marriage
contracts but each province provides varying degrees of restraint
upon the parties.’

Dillon concludes that while most jurisdictions allow parties to conclude

antenuptial contracts, most states complement this freedom of contract by
certain control mechanisms, some by administrative requirements such as
registration and/ or court approval, or by a judicial discretion that permits the court
to vary or discard the contract. He held that in introducing the judicial discretion
contained in s 7(3), the legislature is following developments which have taken
place in many other jurisdictions:

'In something of a universal attempt to achieve an equitable

distribution of the assets of the parties to a marital partnership on
its dissolution, many legislatures have introduced a form of
judicial discretion to complement their usual matrimonial
proprietary regime(s).'

Prenuptial agreements are known in Australia as ‘binding financial agreements’.

It became enforceable with the enactment of the Family Law Amendment Act
2000. Part VIIIA of the Family Law Act sets forth particular provisions concerning
the oversight to be given to such agreements by family solicitors. In Chaffin v

49
From 2001 agreements cannot be set aside unless they cause ‘serious injustices’ -
https://www.international-divorce.com/prenuptial-agreements-in-new-zealand.

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Chaffin50 the an agreement that was entered into ten days before the wedding
was set aside when challenged. The court considered that the husband was 10
years older than the wife, in a significantly superior financial position to the wife
while the wife was financially dependent on the husband, and pregnant, when
the agreement was signed. The court held that the wife was at a ‘special
disadvantage’ due to a combination of the mentioned factors and the husband
acted unconscientiously when he took advantage of thereof. The difference in
the ‘bargaining power’ between the parties was one of the factors the court
considered when setting aside the agreement.

As far as the position in Canada is concerned, an analyses of the applicable

legislation indicates that a Canadian court may modify or even ignore a prenuptial
agreement in some circumstances.51 Most Canadian provinces provide for
judicial oversight of prenuptial agreements but the standard of judicial review
varies from province to province.52

It is evident that other legal jurisdictions recognised the necessity to blend

predictability and certainty with fairness and justice based on the unique facts of
each individual matter at hand.

The way forward

[63] Mrs. Greyling's counsel submits that section 172(1)(a) of the Constitution enjoins
this Court to declare a law that is inconsistent with the Constitution invalid to the
extent of its inconsistency. The applicant seeks an order to the effect that s 7(3)(a)
of the Divorce Act is unconstitutional and invalid to the extent that it limits the
operation of s 7(3)(a) to marriages out of community of property 'entered into before
the commencement of the Matrimonial Property Act, 1984.' Counsel contends that

50
[2019] FamCA 260.
51
https://www.international-divorce.com/prenuptial-agreements-in-canada
52
See also, amongst others, Ontario’s Family Law Act, R.S.O. 1990, Ch.F.3., Sec. 56(4); Nova
Scotia’s Matrimonial Property Act, R.N.S. 1989, Ch. 275, Sec. 29; Saskatchewan’s Family Property
Act, S.S. 1997, Ch. F-6.3, Sec. 24(2); New Brunswick’s Marital Property Act, S.N.B. 1980, Ch. M-
11, Sec.41; British Columbia’s Family Relations Act, R.S.B.C. 1996, Ch. 128, Sec. 65(1).

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it is critical that any order made by the court provides for the order to apply to the
applicant's divorce action as well as other similarly placed spouses where divorce
proceedings are still pending. It is trite that parties must be granted effective relief.53

[64] The state respondents' representative stated that if the court was to issue an order
with full retrospective force, considerable uncertainty would be created in respect of
divorce orders that have already been granted. In reply hereto, Mrs. Greyling's
counsel submitted that due to the broad discretionary power afforded by s
172(1)(b)(i) of the Constitution the court can limit the retrospectivity of a declaration
of invalidity provided that it is just and equitable to do so. Counsel submitted that it
is just and equitable in these circumstances to limit the retrospectivity of the
declaration of invalidity, so that it does not affect divorce proceedings that have
already been finalised.

[65] Mrs. Greyling's counsel, in my view correctly, submits that s 7(3)(a) allows a court
to interfere in a private relationship to avoid injustice. It is axiomatic that no injustice
could be done if that power was also available to courts relating to marriages out of
community of property with the exclusion of the accrual system. The court's s 7(3)-
discretion is wide in the sense that it is to be exercised in a manner that will bring
about a just and equitable outcome in the factual context concerned, but the power
to exercise the discretion is circumscribed and limited to the two scenarios
prescribed in s 7(4) to wit - the party in whose favour the order is granted must have
contributed directly or indirectly to the (i) maintenance, or (ii) increase of the estate
of the other party, during the subsistence of the marriage. The laudable aim of the
section has been dealt with above. The unfair discrimination that is caused by the
exclusionary time-bar in s 7(3)(a) can be corrected by removing the time-bar
according to the Constitutional Court's guidance in Coetzee v Government of the
Republic of South Africa,54 where the court held:

53
Fose v Minister of Safety and Security 1997 (3) SA 788 (CC) at para [69].
54
Coetzee v Government of the Republic of South Africa, Matiso v Commanding Officer Port
Elizabeth Prison 1995 (4) SA 631 (CC) at para [16].

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'[I]f the good is not dependent on the bad and can be separated from it,
one gives effect to the good that remains after the separation if it still
gives effect to the main objective of the statute.'

[66] Mrs. Greyling's counsel submits that the severance of the time-bar from the
remainder of s 7(3)(a) will not cause any difficulty to the manner in which s 7 of the
Divorce Act operates, and it would provide an appropriate remedy. An order to this
effect by this court will not prevent the legislature from amending the Divorce Act if
it is inclined to address the various problems associated with the said Act, including
the constitutional violations demonstrated in this application.

[67] In the alternative, the applicant seeks an order to the effect that the court suspends
the constitutional invalidity of the time bar contained in s 7(3)(a) to afford the
legislature sufficient time to amend s 7 of the Divorce Act to remedy its
unconstitutional defects demonstrated in this application, coupled with the
suspension order grant an interim remedy to cure the constitutional defects
contained in s 7(3)(a) of the Divorce Act during the period of suspension. Counsel
submits that a failure to grant such an interim remedy would unnecessarily prolong
divorce proceedings that are dependent on the curing of the constitutional defects
in s 7(3)(a) of the Divorce Act and would inhibit spouses from being able to escape
abusive marriages. Pending the remedying by Parliament of the constitutional
defects in the impugned section, the court is requested to issue an interim order that
s 7(3)(a) of the Divorce Act is read without the time bar, and that Parliament is
ordered to remedy the constitutional defects within 18 months from the date of the
order, failing which the alternative relief shall continue to apply.

[68] Counsel for the Minister submits that the Minister saw no reason why the court's
discretion to grant redistribution in the circumstances provided for in s 7(3) of the
Divorce Act cannot be extended to individuals in the position of the applicant and
other individuals in her class. After considering all parties' submissions in this regard,
I am of the view that it is just to follow the precedent set in Gumede. No reason exists
that justifies a suspension of the declaration of invalidity. The striking down of the
impugned portion of s 7(3)(a), namely the time-bar, will not leave a lacuna that

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renders the suspension of the order appropriate.55 As in Gumede it is necessary to

emphasise that nothing in the order this court is intent on making, will affect
marriages out of community of property with the exclusion of the accrual system
concluded after 1 November 1984, that have been terminated either by death or by
divorce before the date of this order.

Costs

[69] The first and third respondents abided the court's decision from the onset, and there
should not be an order of costs against them. Mrs. Greyling's counsel seeks a costs
order against the Minister. The relief claimed by the applicant in her notice of motion,
as far as costs are concerned, encompasses the following:
'The costs of the applicant, including the costs of two counsel, shall be
paid jointly and severally by any respondent opposing the application.'

[70] As previously stated, the Minister did not in the final instance oppose the application,
an approach that Mrs. Greyling's counsel submits to be laudable. After initially filing
a notice of intention to oppose, the Minister withdrew the opposition. It is difficult to
understand why Mrs. Greyling in these circumstances seeks a costs order against
the Minister where she indicated in the notice of motion that a costs order is only
sought against respondents that oppose the application.

ORDER

In the result, the following order is granted:

1. Section 7(3)(a) of the Divorce Act, 70 of 1979, is declared inconsistent with the
Constitution and invalid to the extent that the provision limits the operation of section
7(3) of the Divorce Act to marriages out of community of property entered into before
the commencement of the Matrimonial Property Act, 88 of 1984;

55
J J and Another v Director General, Department of Home Affairs and Others 2003 (5) SA 621
(CC) at para [21].

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2. The inclusion of the words ‘entered into before the commencement of the
Matrimonial Property Act, 1984’ in section 7(3)(a) of the Divorce Act, 70 of 1979, is
declared inconsistent with the Constitution and invalid. These words are notionally
severed from section 7(3)(a) of the Divorce Act, 70 of 1979, and section 7(3)(a) of
the Divorce Act, 70 of 1979, is to be read as though the words ‘entered into before
the commencement of the Matrimonial Property Act, 1984' do not appear in the
section.

3. In terms of section 172(1)(b) of the Constitution, the orders in paragraphs (1) and
(2) of this order shall not affect the legal consequences of any act done or omission
or fact existing in relation to a marriage out of community of property with the
exclusion of the accrual system concluded after 1 November 1984, before this order
was made;

4. The aforementioned orders, in so far as they declare provisions of an Act of

Parliament invalid, are referred to the Constitutional Court for confirmation in terms
of section 172(2)(a) of the Constitution, 1996, and the Registrar of this Court is
directed to comply with Rule 16(1) of the Rules of the Constitutional Court in this
regard.

5. Each party is to pay its own costs.

____________________________
E van der Schyff
Judge of the High Court

Delivered: This judgement is handed down electronically by uploading it to the electronic file of
this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal
representatives by email.

Counsel for the applicant: Adv. S. Scott

Instructed by: CLARKS ATTORNEYS
For the second respondent: Adv. Mphaga SC
With: Adv. MD Sekwakweng

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Instructed by: The State Attorney

For the amicus curiae: Adv. LC Haupt SC
With: Adv. S Mentz,
And with: Adv. B Stadler
And with: Adv. B Nchabeleng
Date of the hearing: 11 March 2022
Date of judgment: 11 May 2022

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