Radebe and Another v Sosibo NO and Others (2011 (5) SA 51 (GSJ)) [2011] ZAGPJHC 17; A5036, 2009/21232 (18 March 2011)

Radebe and Another v Sosibo NO and Others (2011 (5) SA 51 (GSJ)) [2011] ZAGPJHC 17; A5036, 2009/21232 (18 March 2011)

The court held that the exclusion of the immovable property from the accrual system in the antenuptial contract did not amount to a testamentary disposition or donation to the parents of the deceased. There was no compliance with the formalities of the Wills Act, as the antenuptial contract was not signed by the deceased nor witnessed as required. The contract was primarily between the spouses to regulate their matrimonial property regime and did not name third-party beneficiaries or provide for devolution of property upon death. The exclusion clause served only to protect the property from sharing in the accrual in the event of divorce or dissolution, not to transfer ownership upon...

Citation
[2011] ZAGPJHC 17
Parties
Appellant: Boboza Alpheus Radebe; Appellant: Nomsa Radebe; Respondent: Siphosenkosi Emmanuel Sosibo NO; Respondent: The Master of the High Court of South Africa (SGHC) NO; Respondent: The Registrar of Deeds
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 March 2011
Case Number
A5036, 2009/21232
Procedural Posture
Civil Appeal / Appeal From Decision of the Court a Quo
Outcome
Appeal dismissed. The exclusion clause in the antenuptial contract does not entitle the parents to inherit the immovable property.
Judges
Satchwell
Legal Topics
Antenuptial Contract, Accrual System, Intestate Succession, Property Exclusion Clause, Wills Act Formalities
Family and Children Land and Property Antenuptial Contract Accrual System Intestate Succession Property Exclusion Clause Wills Act Formalities

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Parties

Boboza Alpheus Radebe

Appellant

Nomsa Radebe

Appellant

Siphosenkosi Emmanuel Sosibo NO

Respondent

The Master of the High Court of South Africa (SGHC) NO

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Civil Appeal / Appeal From Decision of the Court a Quo

Legal Issues

  1. 1 Whether the exclusion of immovable property from the accrual system in an antenuptial contract constitutes a testamentary disposition or donation to third parties.
  2. 2 Whether the surviving spouse is entitled to inherit the excluded immovable property under intestate succession.
  3. 3 Whether the formalities of the Wills Act and Alienation of Land Act were complied with regarding the alleged disposition of property.

Ratio Decidendi

The court held that the exclusion of the immovable property from the accrual system in the antenuptial contract did not amount to a testamentary disposition or donation to the parents of the deceased. There was no compliance with the formalities of the Wills Act, as the antenuptial contract was not signed by the deceased nor witnessed as required. The contract was primarily between the spouses to regulate their matrimonial property regime and did not name third-party beneficiaries or provide for devolution of property upon death. The exclusion clause served only to protect the property from sharing in the accrual in the event of divorce or dissolution, not to transfer ownership upon...

Court Disposition

Appeal dismissed. The exclusion clause in the antenuptial contract does not entitle the parents to inherit the immovable property.

Orders

  • The appeal is dismissed.
  • The order of the court a quo setting aside the liquidation and distribution account and ordering transfer of the immovable property to Mr Sosibo is confirmed.