Abstract

The recognition of and respect for the party autonomy of every legal subject of majority not limited by any personal cognitive handicap is part and parcel of the foundation of an orderly legal community governed by the rule of law. “Making rules of law discretionary or subject to value judgments may be destructive of the rule of law” (Bredenkamp v Standard Bank of South Africa Ltd 2010 4 SA 468 (SCA) 481E).
The discretionary power of a divorce court under section 7(3) of the Divorce Act 70 of 1979 stems from before the current constitutional dispensation. Almost thirty years after the acceptance of the constitutional values of the current system, it was hoped that as time went by, the transitional exception dating to 1984 that exhibits clear elements of arbitrariness would be relied on with declining frequency. There is only a limited number of marriages still in existence concluded before November 1984 with an ante-nuptial contract providing for the proverbial “cold exclusion of all benefits” that could potentially at this late stage in the spouses’ lives be expected to end in the divorce court justifying a reliance on this section. The act limits the discretionary power to explicit conditions: it can be considered only where the divorce concerned a marriage concluded before the commencement of Act 88 of 1984 with an ante-nuptial contract that excluded accrual sharing and any form of asset sharing and in the absence of any agreement at any time between the erstwhile spouses regarding the division of their assets. Provided these conditions are met, the court can order that such assets, or such part of the assets of the other party as the court may deem just, be transferred to the first-mentioned party (s 7(3)).
In all these circumstances a valid ante-nuptial contract exists to which both parties agreed in the presence of a notary public and the applicant in reality never acquired any claim to the other party’s assets. The applicant in addition represented to the other spouse, the notary public and the public at large a claim would never be made to any of the respondent’s assets. “Reasonableness and fairness are not freestanding requirements for the exercise of a contractual right. … Acceptance of the notion that judges can refuse to enforce a contractual provision merely because it offends their personal sense of fairness and equity will give rise to legal and commercial uncertainty” (Potgieter v Potgieter NO 2012 1 SA 637 (SCA) 650F-H).
In Greyling v Minister of Home Affairs ((40023/21) 2022 ZAGPPHC 311 (11 May 2022)) the court regarded the upholding of the claim of the applicant contrary to the explicit misrepresentation by the applicant that she is in agreement with the terms contained in the notarially registered ante-nuptial contract of 1989 governing the marriage, potentially fair. The court ordered the first condition in section 7(3) of Act 70 of 1979, limiting its application to pre-November 1984 marriages, unconstitutional.
This judgment may be popular and in line with what the woman in the street might regard as fair, presumably abandoning the principle of pacta sunt servanda as well as the principles underlying estoppel, but does not bode well for the upholding of the rule of law. “The court does not as yet sit, as under a palm tree, to exercise a general discretion to do what the man in the street, on a general overview of the case, might regard as fair” (Springette v Defoe 1992 2 FLR 388 391).

It is argued that legal certainty will not be enhanced should the constitutional court confirm this judgment. An alleged reliance on principles or policy exclusively based on common law jurisdictions as justification for the recognition of such a discretionary power under these circumstances, without any consideration of the position under civil law systems which indeed share common roots with specifically the South African private law system is once more an example of the demise of our jurisprudence where legal professionals seem to be unable to do proper, relevant and reliable comparative legal research.
Since the husband in the Greyling case did not even oppose the claim of his spouse (all prior to a divorce application) and chose to abide by the court’s decision, it is indeed strange that the court refrained from referring to and recognising that the parties could at any stage since 1989, have relied on section 21(1) of Act 88 of 1984 to have effected a change in their matrimonial property regime. It reeks of misuse of the court process for the court, under these circumstances, to hold as unconstitutional that part of section 7(3) as being the only possible remedy for the claimant against the perceived injustice she would be suffering on divorcing her husband because of their matrimonial property regime, is mind-blowing. The only benefit of not relying on section 21(1) would be to not be bound by the requirements contained in section 21(1)(a-c) – there are sound reasons for the proposed change; sufficient notice of the proposed change has been given to all the creditors of the spouses; and no other person will be prejudiced by the proposed change – and that would constitute misuse. Section 36(1)(e) of the constitution provides that the rights in the bill of rights may be limited but only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (party autonomy), taking into account all relevant factors, including less restrictive means to achieve the purpose. It is clearly not the case in instances like these.