B F v R F (2017/5018A) [2018] ZAGPJHC 963 (2 July 2018)

Headnote – interpretation of clause excluding assets from accrual in an ante-nuptial marriage contract –
The principal controversy was whether the text meant that the shareholding in two companies which the husband either held or had rights to at the commencement of the marriage were alone excluded, or whether additional shares in those two companies
acquired after the marriage were also excluded from the accrual – the husband made no allegation that he relied on the latter shares having been acquired by virtue of them being the fruits of the earlier shareholding within the meaning of section 4 of the Matrimonial Propertry Act.
The majority judgment (Sutherland and Matojane JJ) held that the shares acquired after the marriage were not included, both on a texual appreciation and having regard tro the implications of section 4 of the Matrimonial Property Act on the intention of the contracting parties which, properly interpreted, meant that the exclusion of assets acquired after marriage was wholly inconsistent with the purpose of the statute; the contrary view of the writer, Schafer, being rejected.
The Minority judgment (Siwendu J) held that the evidence adduced on affidavit and the terms of the statrement of case placed before the trial court did not afford a court a sufficient basis upon which to decide the issue and that the matter ought to have been referred back to the trial court.
Order: The appeal was upheld and a declaration made accordingly.