Understanding the Accrual System: CPI Adjustments & Contractual Exclusions

 

Marriages Under the Accrual System

The Matrimonial Property Act 88 of 1984 (the Act) provides that when a couple signs an antenuptial contract that excludes community of property and community of profit and loss, their marriage automatically follows the accrual system —unless they specifically agree to exclude it.

Under the accrual system, when the marriage ends (either through divorce or the death of a spouse), the spouse whose estate grew less during the marriage (or their estate if they have passed away) has a right to claim half of the difference in growth between the two estates.

The "accrual" of an estate is simply the increase in its net value from the start of the marriage to the time it ends.

The Act states that when calculating the starting value of a spouse’s estate at the time of marriage, adjustments must be made to account for inflation. This means that any changes in the value of money between the start and end of the marriage (whether due to divorce or death) are considered. To measure this change, the Consumer Price Index (CPI) — as published in the Government Gazette — is used as proof of how money’s value has shifted. This ensures that the original estate value is fairly adjusted to reflect its real worth at the time of dissolution.

While the CPI is commonly used in practice to adjust commencement values for inflation, parties can contract out of using CPI by specifying alternative methods in their antenuptial contract.

Use of CPI in Practice

The Consumer Price Index (CPI) is used to account for inflation when calculating how much a spouse's estate was worth at the time of marriage. To do this, the CPI at the time of divorce (or death) is divided by the CPI at the time of marriage. The result is used to adjust the starting estate value so it reflects what it would be worth in today's money. This ensures that each spouse's starting wealth is fairly measured in a way that considers changes in the cost of living over time.

Here’s a breakdown:

1. Net Commencement Value: This is the net value of each spouse’s estate at the beginning of the marriage, as declared in the antenuptial contract. It includes all assets minus liabilities.
2. Weighted Consumer Price Index (CPI): The CPI is a measure of inflation. To adjust the commencement value, you use the CPI to reflect how much the value of money has changed since the marriage began.
3. Adjustment Process:
• Identify the CPI at the time of marriage and at the time of divorce or death.
• Calculate the adjustment factor by dividing the current CPI by the CPI at the time of marriage.
• Multiply the commencement value by this adjustment factor to get the adjusted commencement value.

Example:

• CPI at Marriage (2000): 45.975
• CPI at Divorce (2010): 109.26
• Commencement Value: R100,000

Adjustment Factor: 109.26 / 45.975 = 2.37

Adjusted Commencement Value: R100,000 × 2.37 = R237,520

This adjusted value is then used to calculate the accrual, which is the increase in the value of each spouse’s estate during the marriage. The accrual is shared equally between the spouses upon divorce or death.

This process ensures that the initial values are adjusted for inflation, providing a fairer basis for calculating the accrual and dividing assets.

Contracting Out of Using CPI

Parties can include provisions in their antenuptial contract to use alternative methods for adjusting commencement values instead of the Consumer Price Index, such as market value, to account for inflation or other factors affecting asset values. This flexibility allows couples to structure their marital property regime to suit their specific needs and financial circumstances.

The couple (or their executors) can agree in writing on how to value their assets at the time of divorce or death. If they cannot agree, a sworn appraiser or valuer will assess the estates following estate valuation practices. If they cannot decide on an appraiser, they can agree that the Chairman of the Arbitration Foundation of Southern Africa will appoint one, and their valuation will be final unless there is a clear mistake.

Personal Injury Claims: Understanding Duty of Care, Negligence, and Contributory Negligence in Public Liability Cases

A discussion of Stephens v Minister of Police (21884/2017) [2025] ZAWCHC 72 (28 February 2025).

Introduction to Legal Principles

In personal injury cases, several legal principles come into play, including duty of care, negligence, and contributory negligence. The principle of duty of care requires entities to ensure that their premises are safe for public use. Negligence occurs when this duty is breached, resulting in harm. Contributory negligence arises when the injured party's actions contribute to their own harm.

Case Law: Stephens v Minister of Police

Facts of the Case

The case of Stephens v Minister of Police involved an 80-year-old man who fell from an unsecured landing at a police station. He had been directed by a police officer to wash his hands at a tap located outside. The plaintiff sustained injuries, including damage to his knee and facial lacerations. He claimed that the police officers failed to ensure the premises were safe for public use.

Court's Decision

The court found that the Minister of Police had a duty of care to ensure the safety of the premises. However, this duty was breached due to the absence of a railing and warning signs on the landing. Despite this, the court also determined that the plaintiff was 20% contributorily negligent for failing to look where he was going and not using the steps provided.

Key points from the court's decision include:

• Breach of Duty of Care: The absence of a railing and warning signs constituted negligence on the part of the defendant.
• Contributory Negligence: The plaintiff's failure to exercise caution and look where he was going contributed to his injuries.
• Apportionment of Liability: The Minister of Police was held liable for 80% of the plaintiff's damages, while the plaintiff was deemed 20% responsible.

Conclusion

The judgment in Stephens v Minister of Police highlights the importance of maintaining safe premises and the need for individuals to exercise reasonable care for their own safety. It emphasizes that entities must conduct thorough risk assessments and implement safety measures, while also considering the actions of the claimant when evaluating personal injury claims.

 

South African Citizenship Law: Court Rules in Favor of Stateless Child Born to Refugee Parents

A discussion of M.M.E and Others v Director General, Department of Home Affairs and Another (21970/2021) [2025] ZAGPPHC 202 (12 March 2025)

Introduction to Legal Principles

The South African legal system, particularly the South African Citizenship Act of 1995, outlines how citizenship is acquired. A key principle is that a child born in South Africa can become a citizen if one of their parents is a South African citizen at the time of birth. However, changes to the law have created complexities for children born to non-citizen parents. This article explores a recent court case involving a child born to refugee parents, highlighting the legal challenges and the court's decision to ensure the child's right to citizenship.

Legal Framework for Citizenship

• Citizenship by Birth: Before 2013, a child born in South Africa could become a citizen if one of their parents had permanent residence. After 2013, citizenship is granted if one parent is a South African citizen at the time of birth.
• Statelessness: The South African Citizenship Act aims to prevent statelessness by providing citizenship to children born in the country who do not have another nationality.
• Refugee Status: Refugees in South Africa face unique challenges in obtaining citizenship for their children, as they cannot easily access services from their country of origin without risking their refugee status.

Case Law: Facts and Court Decision

Background

The case involves a family of refugees from Rwanda living in South Africa. The parents, who are legally recognized refugees, have two daughters. The eldest daughter was born before the 2013 changes to the Citizenship Act and automatically became a South African citizen. However, the youngest daughter, born in 2015, did not qualify for automatic citizenship due to the new requirements.

The Challenge

• Statelessness: The youngest child was stateless because she did not qualify for South African citizenship and could not easily obtain Rwandan citizenship due to her parents' refugee status.
• Application for Citizenship: The parents applied for South African citizenship for their youngest child, but the application was refused by the Department of Home Affairs, citing that granting citizenship would be contrary to the Citizenship Act.

Court Decision

The High Court of South Africa reviewed the decision and ruled in favour of the applicants. The court declared the Department's refusal unlawful and ordered that the child be recognized as a South African citizen by birth under Section 2(2) of the Citizenship Act. This section ensures that a child born in South Africa who does not have the citizenship of any other country can become a South African citizen if their birth is registered in accordance with South African law.

Key Points of the Decision

• Prevention of Statelessness: The court emphasized the importance of preventing statelessness, especially for children, as it is constitutionally directed that every child should have a nationality from birth.
• Best Interests of the Child: The court prioritized the best interests of the child, noting that procedural technicalities should not override justice.
• Refugee Status Considerations: The court acknowledged the difficulties faced by refugees in accessing services from their country of origin, which would imperil their status and that of their family.

Conclusion

The court's decision highlights the importance of ensuring that children have a nationality from birth, as mandated by constitutional principles. It also underscores the challenges faced by refugee families in navigating citizenship laws. The ruling provides a significant precedent for similar cases, emphasizing the need to balance legal technicalities with the best interests of the child and the prevention of statelessness.

 

Understanding Universal Partnerships in South African Law: Key Legal Principles and Landmark Cases

Introduction

A universal partnership is a legal arrangement in South African law, derived from Roman Dutch principles, where individuals share ownership of assets under specific conditions. These partnerships can exist in both business and personal relationships, such as cohabitation, and are commonly disputed in cases involving asset division after separation.

People allege the existence of a universal partnership for several reasons, primarily to claim rights over shared assets and financial contributions after a relationship or business partnership ends. The motive often involves securing financial benefits, ensuring fair distribution of wealth accumulated during the relationship, or avoiding economic disadvantage after a separation. Establishing a universal partnership can help one partner gain access to shared property, claim compensation for non-financial contributions (such as homemaking), or challenge an unfair asset distribution.

To prove a universal partnership, certain legal requirements must be met, including contribution by each party, mutual benefit, a profit motive, and a legitimate agreement. This article explores these principles, examines key case law, and discusses how courts determine the existence of a universal partnership.

Key Legal Principles

For a universal partnership to exist, the following elements must be proven:

Contribution by Each Partner. Each partner must contribute in some form, including:

• Financial contributions (money or investments)
• Labour or services
• Skills and expertise
• Domestic responsibilities (e.g., homemaking or childcare)

Mutual Benefit

The partnership must be established for the joint benefit of both parties, including shared profits and losses.

Profit Motive

While commercial partnerships require a clear profit motive, non-commercial partnerships (e.g., cohabitation) may involve shared financial and social benefits.

Legitimate Agreement

The partnership agreement can be either:

·        Express: Clearly stated in writing or verbally.

·        Tacit: Implied through conduct, where actions suggest an intention to form a partnership.

Types of Universal Partnerships

South African law distinguishes between two types:

Societas Universorum Bonorum

·        All present and future property is pooled into the partnership.

·        Common in domestic relationships.

Societas Universorum Quae Ex Quaestu Veniunt

Limited to property acquired through commercial activities during the partnership.

Key Case Law

1 Mühlmann v Mühlmann (1984)

• Facts: Spouses married out of community of property claimed a universal partnership over a jointly operated business.
• Decision: The court recognized the partnership based on their joint contributions and shared profits.

2 Butters v Mncora (2012)

• Facts: A long-term cohabiting couple pooled resources for mutual benefit. The plaintiff contributed financially, while the defendant provided domestic services.
• Decision: The court found a tacit universal partnership existed because both parties contributed towards shared assets and benefits.

3. Ponelat v Schrepfer (2012)

• Facts: A cohabiting couple disputed asset division after separation.
• Decision: The court held that a universal partnership exists if the essential elements (contribution, mutual benefit, profit motive) are met, regardless of marital status.

4. R.D.M v M.D.K (2025)

• Facts: The plaintiff, R.D.M., sought a court order declaring a universal partnership with M.D.K. valid and claimed entitlement to shared assets. M.D.K. denied the existence of a partnership, arguing the plaintiff’s financial contributions were gifts.
• Decision: The court dismissed the claim due to insufficient evidence of asset pooling and a shared profit motive, reinforcing that financial contributions alone do not establish a universal partnership.

Proving a Universal Partnership

To successfully claim a universal partnership, a party must provide:

• Evidence of contributions by both partners (financial, labour, or skills).
• Conduct demonstrating an agreement to pool resources for mutual benefit.
• A clear intention to share profits or benefits arising from their relationship.

The burden of proof lies with the claimant, and tacit agreements require strong supporting evidence.

Limitations and Challenges

• Cohabitation alone does not establish a universal partnership; there must be evidence of intent beyond merely sharing a home or expenses.
• Certain assets, such as pensions, cannot be shared under universal partnerships due to statutory restrictions (e.g., Pension Funds Act).
• Tacit agreements require clear evidence, as conduct can be open to multiple interpretations.

Conclusion

A universal partnership provides a legal framework for recognizing shared contributions in relationships that do not fall under traditional marriage or civil unions. However, proving such a partnership requires meeting strict legal criteria, including contribution, mutual benefit, profit motive, and a legitimate agreement. Courts scrutinize these elements carefully to distinguish true partnerships from mere cohabitation or casual financial arrangements.

 

 

POPIA Compliance in Legal Defence: Balancing Surveillance Evidence and Privacy Rights in South Africa

 

 #POPIA #PrivacyLaw #SurveillanceEvidence #LegalDefense #DataProtection #SouthAfricanLaw"

The case of De Jager v Netcare Limited (2025) addresses critical questions about privacy rights, surveillance evidence, and corporate accountability under South Africa’s data protection laws. This judgment clarifies how courts balance constitutional privacy rights with legitimate legal interests when personal information is used in litigation. Below is a structured summary of the legal principles, case details, and broader implications.

Legal Principles

South Africa’s Protection of Personal Information Act (POPIA) governs the processing of personal data, including health information and surveillance footage. Key principles include:

• Subsidiarity: Courts require litigants to rely on POPIA (rather than direct constitutional claims) when addressing privacy disputes, as POPIA codifies constitutional rights into actionable law.
• Legitimate Interest: Organizations may process personal data without consent if necessary to defend legal rights, provided the intrusion is proportionate and justified under POPIA.
• Special Personal Information: Health data (classified as “special personal information” under POPIA) can be lawfully processed if required for legal proceedings.

Case Overview

Facts

• Plaintiff: Nicolaas De Jager sued Netcare for R25 million in damages after losing vision in one eye during cataract surgery.
• Defence Strategy: Netcare hired a private investigator to covertly film De Jager’s daily activities, arguing the footage disproved his claimed disabilities.
• Privacy Challenge: De Jager objected to the surveillance evidence, claiming it violated his constitutional right to privacy (s14 of the Constitution).

Key Legal Issues

1. Constitutional vs. Statutory Claims
• The court dismissed De Jager’s reliance on s14 of the Constitution, ruling that POPIA—not direct constitutional claims—must govern privacy disputes.
2. Admissibility Under POPIA
• Legitimate Interest: The court applied a s36 constitutional balancing test, finding Netcare’s need to defend itself outweighed De Jager’s privacy rights. Surveillance in public spaces was deemed minimally intrusive.
• Special Personal Information: Section 27(1)(b) of POPIA permits processing health data if necessary for legal defence. The court accepted Netcare’s surveillance as lawful under this exception.
• Third-Party Data: Footage showing unrelated individuals (including children) was ordered to be redacted to comply with data minimization principles.
3. Notification Requirements
• Section 18(4)(c)(iii) of POPIA exempts organizations from notifying data subjects if disclosure would undermine legal proceedings. The court upheld Netcare’s decision to withhold advance notice.

Court Decision

• Surveillance Evidence Admitted: The High Court ruled the footage was lawfully obtained and critical to Netcare’s defence.
• Redaction Ordered: Non-relevant third-party data (e.g., bystanders) in the footage had to be removed to protect their privacy.
• Costs: De Jager’s application to exclude evidence was dismissed, with costs awarded to Netcare.

Implications for Businesses and Healthcare Providers

• Lawful Surveillance: Organizations may use surveillance evidence in litigation if it is proportionate, public, and directly relevant to defending legal claims.
• POPIA Compliance:
• Update privacy policies to include scenarios where data may be processed for legal defense.
• Conduct Personal Information Impact Assessments before deploying surveillance.
• Third-Party Data: Redact unrelated individuals’ information from evidence to comply with data minimization rules.

Conclusion

The De Jager case reinforces that while privacy is a fundamental right, it is not absolute. Courts will prioritize POPIA’s framework over standalone constitutional claims, emphasizing proportionality and legal necessity. For businesses, this underscores the need to align surveillance practices with POPIA’s requirements, ensuring transparency and minimal intrusion. For individuals, the judgment highlights that privacy protections may yield to compelling legal interests, particularly in adversarial proceedings.

 

Section 7 of PAJA and the 180-Day Review Period: Key Principles and Case Law

South Africa's Promotion of Administrative Justice Act (PAJA) is a law designed to ensure fairness and transparency in government decision-making. PAJA aims to make government more accountable and ensure that decisions affecting citizens are made fairly and transparently.

Here's a simplified explanation of PAJA and administrative decisions:

What is PAJA?

PAJA is a law that protects citizens from unfair or unreasonable decisions made by government officials or bodies. It gives people the right to:

• Be treated fairly when the government makes decisions affecting them
• Know why certain decisions were made
• Challenge those decisions if they believe they're unfair

 

What is an Administrative Decision?

An administrative decision is any action taken by a government official or body that affects a person's rights. For example:

• Granting or denying a license
• Approving or rejecting a building permit
• Awarding or refusing a government benefit

These decisions must be:

• Lawful (following the rules)
• Reasonable (making sense)
• Procedurally fair (giving people a chance to be heard)

Key Points About PAJA

• Fair Procedures: Before deciding, officials must:

• Inform people who might be affected
• Give them a chance to share their side of the story
  
  

• Reasons for Decisions: If a decision negatively affects someone, they have the right to ask for and receive written reasons.
• Time Limit for Challenges: If someone wants to challenge a decision in court, they usually have to do so within 180 days (about 6 months) of:

• Exhausting all internal appeal options, or
• Becoming aware of the decision and its reasons

 

• Exceptions: If someone misses the 180-day deadline, they can ask the court for an extension. However, they need to make a formal request (called "condonation") explaining why they were late and why their case should still be heard.

Legal Principles Under Section 7 of PAJA

1. 180-Day Time Limit
• Judicial review applications must be filed:
• Within 180 days after exhausting internal remedies (e.g., appeals).
• If no internal remedies exist, within 180 days of becoming aware of the administrative action and its reasons.
• Delays shorter than 180 days may still be deemed "unreasonable," allowing courts to dismiss applications.
2. Condonation for Late Filing
• Section 9 permits courts to extend the 180-day period if "in the interests of justice".
• A formal condonation application is mandatory, requiring litigants to:
• Explain the delay.
• Demonstrate prospects of success on the merits.

Case Law Analysis

Case 1: African Exploration Mining and Finance Corporation v Minister of Mineral Resources

• Facts: African Exploration challenged the Minister’s decision to convert mining rights but filed its review after the 180-day deadline without a condonation application.
• Court’s Decision:
• The application was dismissed because no formal condonation request was submitted.
• The court emphasized that condonation is a procedural prerequisite – failure to apply for it invalidates the entire review.

Case 2: Datacentrix (Pty) Ltd v SANParks and Others

Facts: Datacentrix sought to review a tender award but raised condonation only in reply papers, not in its founding affidavit.

• Court’s Decision:
• The application failed because condonation must be explicitly requested upfront.
• Raising it later deprived respondents of a fair chance to respond, causing prejudice.
• Courts may allow late condonation applications only in exceptional circumstances (none existed here).

Key Takeaways

1. Strict Procedural Compliance:
• Condonation applications must be included in founding papers and address both the delay’s explanation and case merits.
• Courts prioritize procedural fairness and certainty in administrative decisions.
2. Interests of Justice Test:
• Factors include the delay’s length, reasons, and potential prejudice to parties.
3. Recent Clarifications:
• The 180-day period begins when reasons are sufficiently detailed to enable a challenge, not when a party is satisfied with them.

This framework ensures accountability in administrative processes while balancing litigants’ rights to challenge unlawful decisions. Courts consistently enforce procedural rigor to maintain legal certainty and fairness.

Section 2(3) of the Wills Act 7 of 1953: Condonation of Non-Compliant Wills in South African Law

 

Introduction

Section 2(3) of the Wills Act, 7 of 1953, provides a critical mechanism in South African law for courts to condone documents that do not meet the formal requirements for a valid will. This provision ensures that genuine testamentary intentions are not frustrated by technical non-compliance with legal formalities. Below is an in-depth analysis of this section, its key requirements, and its application through South African case law.

Key Requirements of Section 2(3)

Under Section 2(3), a court must order the Master of the High Court to accept a document as a valid will if the following conditions are met:

1. The document was drafted or executed by the deceased.
2. The deceased intended the document to serve as their last will or an amendment to it.

This provision is peremptory, meaning that once these requirements are satisfied, the court has no discretion to refuse condonation. However, courts must carefully evaluate whether these conditions are met, particularly regarding the deceased's intention.

Judicial Interpretation and Case Law

South African courts have grappled with various issues under Section 2(3), particularly around three key concepts: "document," "drafted or executed," and "intention." These elements have been interpreted and applied in numerous cases, demonstrating how courts balance testamentary freedom with legal safeguards.

1. Document Requirement

The term "document" is interpreted broadly under Section 2(3) but must still satisfy certain criteria. Courts generally require that a document has an "aura of authenticity" and is clearly linked to the deceased's testamentary intentions.

• In Van der Merwe v The Master (2010), the Supreme Court of Appeal emphasized that a document must demonstrate authenticity and reflect the deceased's intent to dispose of their estate.
• In Hassan v Mentor NO (2012), a copy of a lost will was accepted under Section 2(3).
• In Dryden v Harrison and Others (unreported) case number 11912/17 (2019), courts considered whether an email could qualify as a testamentary document, though it was ultimately rejected due to insufficient evidence of intention.

2. Drafted or Executed by the Deceased

The requirement that the document must have been drafted or executed by the deceased has led to disputes, particularly in cases involving informal or incomplete documents.

• In Mabika v Mabika (2011), an informal note was condoned as a will because it was clear from surrounding circumstances that the deceased intended it to represent her final wishes.
• Similarly, in Perumal v Janse Van Rensburg NO and Others [2025], an unsigned amended will drafted by the deceased on his laptop was condoned. The court found that repeated follow-ups by the deceased with his executor demonstrated his clear intention for the document to serve as his last will.

3. Intention

Intention is central to Section 2(3). Courts must determine whether the deceased intended for a specific document to serve as their last will or an amendment thereto. This determination often involves examining both the content of the document and surrounding circumstances.

Case Studies: Application of Section 2(3)

The cases below illustrate how courts approach this issue.

Case 1: Dryden v Harrison and Others (2019)

This case involved an email sent by the deceased containing testamentary language such as "This serves as my final will and testament." The court had to decide whether this email could be accepted as a valid will under Section 2(3).

Key Facts

• The deceased had executed a valid formal will in 2006 but did not revoke or amend it after his divorce in 2011.
• On January 4, 2016, he sent an email outlining new testamentary instructions but did not take further steps to formalize these changes.
• After his death in September 2016, the Master refused to accept the email due to its non-compliance with formalities.

Court’s Findings

The court concluded that:

1. While the email was drafted by the deceased, it lacked sufficient evidence of intention to serve as his last will.
2. The existence of a valid formal will (2006) suggested that he understood and adhered to formalities when creating testamentary documents.
3. The email appeared more likely to be a reassurance of future intentions rather than a binding testamentary instrument.

The application was dismissed with costs.

Case 2: Perumal v Janse Van Rensburg NO and Others [2025]

In contrast, Perumal involved an unsigned amended will drafted by the deceased on his laptop. The court had to decide whether this document should be condoned under Section 2(3).

Key Facts

• The deceased drafted amendments to his will in July 2022 after announcing his engagement to Perumal.
• He sent this amended document to his executor but passed away in April 2023 without signing it.
• Despite opposition from his former partner (C), who argued that non-signature indicated lack of intention, evidence showed that he followed up twice with his executor about finalizing the amended will.

Court’s Findings

The court held that:

1. It was undisputed that the deceased drafted the amended document.
2. His repeated follow-ups demonstrated clear intention for it to serve as his last will.
3. The amendments aligned with his changed circumstances and relationship with Perumal.

The court ordered the Master to accept the amended document as S’s last will and awarded costs against C due to her speculative and unreasonable opposition.

Broader Implications

These cases highlight how South African courts navigate Section 2(3) when dealing with non-compliant wills:

1. Intention is Paramount: Courts prioritize evidence demonstrating animus testandi (intention to make a will). Without clear evidence, as seen in Dryden, applications are unlikely to succeed.
2. Balancing Formalities and Testamentary Freedom: While Section 2(3) allows flexibility, courts remain cautious about overriding formal wills unless compelling evidence supports doing so.
3. Role of Evidence: Surrounding circumstances—such as follow-up actions (Perumal) or prior adherence to formalities (Dryden)—play a crucial role in determining whether intention exists.

Conclusion

Section 2(3) of the Wills Act provides flexibility for courts to recognize non-compliant wills while safeguarding against fraud or misinterpretation. Cases like Van der Merwe, Mabika, Dryden, and Perumal illustrate how courts carefully evaluate evidence of authenticity, drafting by the deceased, and intention. While decisions such as Dryden emphasize adherence to formalities where intention is unclear, cases like Perumal demonstrate how clear evidence can override technical defects. These judgments highlight how South African courts balance testamentary freedom with legal safeguards under Section 2(3), ensuring that genuine intentions are upheld while protecting against abuse or uncertainty in estate administration.

 

The Applicable Law of Succession to a South African Domiciled Individual

 A UK solicitor asked us to provide a certificate of applicable law regarding succession for a deceased individual domiciled in South Africa.

In the UK, when dealing with cross-border estates, it is often necessary to determine which country’s succession laws apply. A certificate of applicable law is typically a legal opinion or formal document confirming the relevant laws governing succession, particularly under private international law (conflict of laws) principles. This is often required for probate, estate administration, or litigation in UK courts when dealing with foreign estates.

South African Law Perspective:

South Africa follows the domicile principle for succession, meaning that:

• The deceased’s domicile at the time of death determines which succession laws apply to their estate.
• If the individual was domiciled in South Africa, then South African succession law (testate or intestate) will apply.
• A UK court or authority handling part of the deceased’s estate may need expert confirmation from a South African lawyer regarding which rules govern succession.

1. Applicable Law

South African private international law follows the doctrine of domicile in matters of succession. In terms of this doctrine, the succession to the estate of a deceased individual is governed by the law of their domicile at the time of death.

Accordingly, if the deceased was domiciled in South Africa at the time of their passing, the law applicable to their estate is South African succession law, irrespective of where the assets are situated.

2. Legal Framework

The primary legislative instruments governing succession in South Africa are:

• The Wills Act 7 of 1953, which prescribes the formal requirements for the execution of a valid will.
• The Intestate Succession Act 81 of 1987, which governs the distribution of estates where no valid will exists.
• The Administration of Estates Act 66 of 1965, which regulates the appointment of executors and the administration of deceased estates.
• The Maintenance of Surviving Spouses Act 27 of 1990, which allows surviving spouses to claim reasonable maintenance from the deceased’s estate if they are not adequately provided for.
• The Children's Act 38 of 2005, which affirms that minor children are entitled to inherit from a deceased parent under intestate succession.

South African courts have consistently upheld the domicile rule in succession matters. In Ex parte Spinazze and Another NNO 1985 (3) SA 650 (A), the court reaffirmed that South African law applies to the estates of South African domiciliaries, regardless of where their assets are located.

3. Testate Succession (Where a Valid Will Exists)

Where the deceased left a valid will, the estate will be administered in terms of the will’s provisions, subject to South African legal requirements for validity, as set out in sections 2(1)(a) and 2A of the Wills Act 7 of 1953. These include:

• The testator must have been at least 16 years old and had testamentary capacity at the time of execution.
• The will must have been signed by the testator in the presence of two competent witnesses.
• Any amendments to the will must comply with the requirements of the Wills Act.

Where disputes arise regarding testamentary capacity, the burden of proof generally falls on the party challenging the validity of the will.

4. Intestate Succession (Where No Valid Will Exists)

If the deceased died without a valid will, their estate is distributed according to the Intestate Succession Act 81 of 1987, which provides for the following order of inheritance:

• Surviving spouse(s) – If there is a surviving spouse, they inherit a child’s share or R250,000, whichever is greater.
• Children – If there is no surviving spouse, the children inherit equally. Adopted and extramarital children have the same rights as biological children.
• Parents and other blood relatives – If there are no descendants or spouses, the estate passes to the deceased’s parents or, failing that, to their closest blood relatives.

5. Executor Appointment and Estate Administration

The Master of the High Court is responsible for overseeing the administration of deceased estates in South Africa, in accordance with the Administration of Estates Act 66 of 1965.

• A Letter of Executorship must be obtained before administering the estate.
• The executor is responsible for collecting assets, paying debts, and distributing the estate according to the will or intestate succession laws.
• If disputes arise, they may be adjudicated by the High Court of South Africa.

6. Conclusion

Based on the deceased’s South African domicile, the law applicable to the succession of their estate is South African law. This means:

• If a valid will exists, the estate will be administered according to the testator’s wishes, subject to the legal framework outlined above.
• If no valid will exists, the estate will be distributed in accordance with the Intestate Succession Act 81 of 1987.
• The estate will be administered under the supervision of the Master of the High Court, with an appointed executor responsible for compliance with South African estate laws.

 

South African Law on Foreign Marriages: Domicile, Property Regimes, and Legal Implications

 

Introduction

This article examines the legal implications of marriages solemnized outside South Africa, focusing on the determination of applicable law and property regimes. It explores key principles in South African matrimonial law, particularly concerning marriages where one or both parties are domiciled in South Africa.

Formal Validity and Governing Law

The formal validity of a marriage is determined by the lex loci celebrationis, the law of the place where the marriage is solemnized. However, this principle does not extend to governing the legal and proprietary consequences of the marriage.

South African Law on Matrimonial Property

According to the Matrimonial Property Act 88 of 1984, if the husband is domiciled in South Africa at the time of marriage, the union is automatically in community of property, unless a valid antenuptial contract exists. This principle applies even when the marriage is concluded outside South Africa, as established in Frankel's Estate and Another v The Master and Another (1950).

Concept of Domicile

Definition

Holland v Holland 1973 defined domicile as a particular territorial jurisdiction where a person intends to settle or is settled indefinitely. It is primarily a subjective determination based on the parties' intentions.

Legal Interpretation

The Frankel case established that the matrimonial regime is governed by the law of the husband's domicile at the time of marriage, not by any future domicile he intends to acquire. This principle has been reinforced by the Domicile Act of 1992 and the case of Esterhuizen v Esterhuizen 1999.

Antenuptial Contracts for Foreign-Domiciled Spouses

Spouses in a civil marriage, where the husband is domiciled in a foreign country, can enter into an antenuptial contract to regulate their marriage's consequences and register it in South Africa. This is supported by Johnson and Another v Registrar of Deeds 1931 and RCR 64 of 1961.

Important Distinction

It's crucial to note that entering into an antenuptial contract does not automatically make the marriage out of community of property. The marriage must still be described as "Married which marriage is governed by the laws of (name the country)".

Conclusion

The article highlights the complexity of determining the legal consequences of marriages concluded outside South Africa. It emphasizes the importance of the husband's domicile at the time of marriage in determining the applicable matrimonial property regime. While couples have some flexibility in regulating their marital property through antenuptial contracts, the underlying principle of the husband's domicile remains a key factor in South African matrimonial law.

 

Amendment of Antenuptial Contracts in South Africa

Can married parties vary the terms of their existing antenuptial contract (ANC), without going to court?

Introduction to Legal Principles

ANCs are crucial legal documents that determine the financial and proprietary consequences of a marriage. In South African law, there are strict rules governing the amendment of these contracts after marriage.

As a general rule in our law, an antenuptial contract cannot be amended between the parties after the marriage has been concluded (Ex parte De Zwaan and Another 1909 TS 676). 

Such a contract can, however, be amended by the Court, but only in a very limited sense. In Ex parte Venter et Uxor 1948 (2) SA 175 (O), it was held that the court’s power to authorize the revocation or amendment of antenuptial contracts, is strictly limited to those cases where the marriage is dissolved or where the contents of the written contract did not give effect to the actual agreement between the parties. 

Key Legal Provisions

• Section 21 of the Matrimonial Property Act: Allows spouses to jointly apply to court for permission to change their matrimonial property system, provided there are sound reasons, sufficient notice to creditors, and no prejudice to other parties. The provisions of the Matrimonial Property Act can only be utilized to change the matrimonial property regime of spouses and not the terms of an antenuptial contract. 
• Section 88 of the Deeds Registries Act: Authorizes post-nuptial execution of a notarial contract with the effect of an antenuptial contract, if the terms were agreed upon before marriage.

Amendment Process

• Before Marriage: Parties can freely modify or revoke the ANC through a notarial deed.
• After Marriage: ANCs should only be amended through a court order.

The High Court application

The application is costly, and the parties can conclude an addendum to their ANC and agree that on dissolution of the marriage one party will not argue that the addendum is unenforceable.

However, an application to court is preferable. If the marriage ends in divorce and one party disputes the validity of the addendum, it is likely that a court will declare it void and unenforceable.

Court Order:

The High Court order would read something like this:

Having read the papers filed of record and having heard Counsel for the Applicants, it is ordered that:

1. First and Second Applicants are hereby granted leave to conclude a notarially executed amendment to the antenuptial contract concluded between them on ….
2. The Registrar of Deeds be and hereby is authorised, subject to his/her requirements, to attend to the registration of such amendment in the form annexed hereto marked ‘A’.”

The new Antenuptial Contract would normally start off with terms reading as follows:

“AND THE APPEARERS DECLARED THAT WHEREAS:

1. the parties are married in terms of a duly registered antenuptial contract with reference H….. (‘the existing antenuptial contract’).
2. they wish to amend the terms of the existing antenuptial contract by the supplementation thereof in the manner set out below.
3. the parties are authorised to do so in terms of an order dated ………………. in the South Gauteng High Court, Johannesburg, under case number …..  

4.        the parties have agreed to be bound by the following provisions as if these provisions formed part of the existing antenuptial contract”. 

Conclusion

Amending an ANC after marriage in South Africa is a complex legal process requiring court intervention. While alternatives like addendums exist, they carry risks of being declared unenforceable. The safest approach is to seek a High Court order for any post-marriage ANC amendments.