Holomisa v Holomisa (564/2016) [2017] ZASCA 64 (29 May 2017)

Holomisa v Holomisa (564/2016) [2017] ZASCA 64 (29 May 2017)

The Supreme Court of Appeal held that the Marriage Extension Act 50 of 1997 did not retrospectively alter the matrimonial property regime of parties married without an ante-nuptial contract after 27 April 1994 in the former Transkei. The High Court erred by considering the issue of domicile, which was common cause and not in dispute. The evidence led was for jurisdiction, not domicile. The marriage certificate confirmed that the marriage was out of community of property. The constitutional challenge to s 7(3) of the Divorce Act was dismissed as it was not pleaded and the respondent had the opportunity to elect a different regime but did not do so. The appeal succeeded and the respondent's...

Citation
[2017] ZASCA 64
Parties
Appellant: Sango Patekile Holomisa; Respondent: Bukelwa Nolizwe Holomisa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 May 2017
Case Number
564/2016
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Division, Mthatha High Court
Outcome
Appeal upheld; order of High Court set aside and replaced; respondent's counterclaim dismissed.
Judges
Cachalia, Tshiqi, Saldulker, Dambuza, Mbatha
Legal Topics
Matrimonial Property Regime, Marriage Extension Act, Transkei Marriage Act, Divorce Act, Constitutional Argument
Family and Children Civil Procedure Matrimonial Property Regime Marriage Extension Act Transkei Marriage Act Divorce Act Constitutional Argument

Case Brief

Summary, issues, holding and outcome

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Parties

Sango Patekile Holomisa

Appellant

Bukelwa Nolizwe Holomisa

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Division, Mthatha High Court

Legal Issues

  1. 1 Whether the marriage between the appellant and respondent, solemnized in the erstwhile Transkei in December 1995, was in or out of community of property.
  2. 2 Whether the Marriage Extension Act 50 of 1997 retrospectively altered the matrimonial property regime of parties married without an ante-nuptial contract after 27 April 1994 in the former TBVC areas.
  3. 3 Whether the High Court erred in considering the domicile of the parties when it was common cause between them.

Ratio Decidendi

The Supreme Court of Appeal held that the Marriage Extension Act 50 of 1997 did not retrospectively alter the matrimonial property regime of parties married without an ante-nuptial contract after 27 April 1994 in the former Transkei. The High Court erred by considering the issue of domicile, which was common cause and not in dispute. The evidence led was for jurisdiction, not domicile. The marriage certificate confirmed that the marriage was out of community of property. The constitutional challenge to s 7(3) of the Divorce Act was dismissed as it was not pleaded and the respondent had the opportunity to elect a different regime but did not do so. The appeal succeeded and the respondent's...

Court Disposition

Appeal upheld; order of High Court set aside and replaced; respondent's counterclaim dismissed.

Orders

  • The appeal is upheld.
  • The order of the High Court dismissing the appeal is set aside and substituted as follows: