Louis van Vuren CEO FISA
Louis van Vuren, CEO, FISA

The Fiduciary Institute of Southern Africa (FISA) has developed an extensive archive of court case summaries relating to fiduciary matters. The summaries are written by FISA CEO, Louis van Vuren. 

Below are two summaries. You can visit the archive at https://www.fisa.net.za/category/court-cases

1.      Court case on pre-nuptial agreement

B[….] v B[….] [2022] ZASCA 123

The appellant (CB) and respondent (DB) entered into an ante-nuptial contract (ANC) which was duly registered in the deeds office in January 2015. Under the ANC they were to be married out of community of property without the accrual. 

In February 2015 they entered into an agreement under which DB undertook to make certain donations to CB, including a house to the value of R1.5m, contributions to medical aid, a vehicle, a life policy, and maintenance for life. 

CB and DB were married in May 2015. DB started divorce proceedings in 2018. The parties requested the Regional Court, Springs to adjudicate the enforceability of the agreement separately. DB’s case was that the agreement was unenforceable as it sought to alter the terms of the ANC. CB argued that the agreement was separate from the ANC, was a binding contract of donation, and that the principle of pacta sunt servanda should apply. The regional court ruled in CB’s favour. 

On appeal the Gauteng High Court Pretoria (Bam AJ) overturned this decision on the grounds that the agreement was unenforceable as it sought to alter the effect of the ANC under which the parties were married out of community of property without the accrual. CB appealed against this decision to the Supreme Court of Appeals (SCA).

The SCA (Kgoele AJA with Van der Merwe and Molemela JJA and Salie-Hlophe and Masipa AJJA concurring) held that the agreement did not seek to alter the ANC and in fact recognised and confirmed that the parties were aware of, and bound to, the terms of the ANC. However, parties were free to contract as they saw fit and the agreement did in no way infringe on the court’s powers under the Divorce Act, nor did it attempt to alter the matrimonial property regime. The appeal was upheld and the decision of the Pretoria High Court overturned, resulting in the agreement being declared valid and enforceable.

2.     Court case about fraud and a deceased estate 

Botha N.O. v Leboko-Radebe and Others [2022] ZAGPJHC 724

The first respondent (L) and J was married until their divorce in 1997. In 2002 J bought a fixed property and it was registered in his name in the deeds office. J died in April 2004. In 2005 L approach the third respondent, the Master of the High Court in Johannesburg, and falsely stated that she was J’s surviving spouse. Letters of Authority were duly issued to her and she proceeded to have the fixed property transferred in her name. In 2006 she (J) then obtained a loan from ABSA and had a mortgage bond registered over the property as security for this loan. 

In 2015, when the fraud became known to the Master, the applicant (B) was appointed as executor of J’s estate. B proceeded with the application to have the transfer of the property to L cancelled under the provisions of section 6 of the Deeds Registries Act, Act 47 of 1937. This section provides, inter alia, that no deed of transfer can be cancelled except by order of the court. B’s application, which was opposed by L, but not by the second respondent (ABSA), third respondent (the Master), or the fourth respondent (the Registrar of Deeds), was based on the point that there was no just cause for the transfer as it was based on L’s fraud.

The court (Adams J) held that the principle “fraud unravels all” as enunciated by Lord Denning in the English case Lazarus Estates Ltd v Beasley [1956] 1 QB (CA) 702 at 712 is part of our law and has been applied by the Supreme Court of Appeals in Esorfranki Pipelines (Pty) Ltd and Another v Mopani District Municipality and Others [2014] ZASCA 21; [2014] 2 All SA 493. As such the fraud perpetrated by L cannot be allowed to stand and the property must be returned to J’s deceased estate. The court ordered the Registrar of Deeds to effect the cancellation of the transfer of the property to L.

FISA CEO
Louis van Vuren

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