Silva v Silva (33/2007) [2008] ZAWCHC 226 (29 July 2008)

Silva v Silva (33/2007) [2008] ZAWCHC 226 (29 July 2008)

The court found that, based on the evidence, the applicant was not employed by the relevant legal entities and therefore his shares and member's interest should be included in the accrual of his estate. However, the court acknowledged that the applicant's new interpretation of clause 3.4.6, which was not debated at trial, could potentially be accepted by another court. Regarding clause 3.4.8, the court held that the respondent is entitled to enforce the right conferred therein and was not persuaded that it could be replaced by a maintenance order. Nonetheless, for practical reasons and convenience, leave to appeal was granted on both issues.

Citation
[2008] ZAWCHC 226
Parties
Applicant: Antonio Manuel Da Costa Silva; Respondent: Charlise Silva (born Naude)
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 July 2008
Case Number
33/2007
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment
Outcome
Leave to appeal granted to the Full Court against the whole of the judgment and orders made on 13 March 2008.
Judges
P B Fourie
Legal Topics
Antenuptial Contract Interpretation, Accrual System, Maintenance Obligations
Family and Children Civil Procedure Antenuptial Contract Interpretation Accrual System Maintenance Obligations

Case Brief

Summary, issues, holding and outcome

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Parties

Antonio Manuel Da Costa Silva

Applicant

Charlise Silva (born Naude)

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment

Legal Issues

  1. 1 Whether the applicant's shares and member's interest in a private company and close corporations should be excluded from the accrual of his estate under clause 3.4.6 of the antenuptial contract.
  2. 2 Whether clause 3.4.8 of the antenuptial contract confers a right that can be replaced by a maintenance order or must be enforced as stipulated.

Ratio Decidendi

The court found that, based on the evidence, the applicant was not employed by the relevant legal entities and therefore his shares and member's interest should be included in the accrual of his estate. However, the court acknowledged that the applicant's new interpretation of clause 3.4.6, which was not debated at trial, could potentially be accepted by another court. Regarding clause 3.4.8, the court held that the respondent is entitled to enforce the right conferred therein and was not persuaded that it could be replaced by a maintenance order. Nonetheless, for practical reasons and convenience, leave to appeal was granted on both issues.

Court Disposition

Leave to appeal granted to the Full Court against the whole of the judgment and orders made on 13 March 2008.

Orders

  • Applicant is granted leave to appeal to the Full Court of this Division against the whole of the judgment and orders made on 13 March 2008.
  • The costs of this application are to stand over for determination by the court of appeal.