Mans v Mans

Anita Mans (applicant) and Heinrich Mans (respondent) married on 28 August 1993 out of community of property with exclusion of accrual. The antenuptial contract was duly registered. On 10 November 2014, the applicant presented the respondent with a postnuptial agreement which purported to set aside the antenuptial contract, entitle her to half of his estate, and require him to pay her maintenance. There is a dispute about the circumstances of signing: the respondent alleges he signed under duress/threats to maintain peace, while the applicant (corroborated by their minor daughter) states it was signed voluntarily on the morning without hesitation. The parties continued their normal marital relationship after signing until 30 November 2014, when the applicant discovered the respondent's continuing extra-marital affair and draft divorce documents on his phone. When confronted, the respondent stated he wanted a divorce. The applicant testified this was the first time either party mentioned divorce. The respondent then issued divorce proceedings in the Regional Court.

• Whether a postnuptial agreement entered into by spouses married out of community of property, without court sanction under section 21(1) of the Matrimonial Property Act 88 of 1984, is valid and enforceable
• Whether the agreement was concluded in contemplation of divorce as required by section 7(1) of the Divorce Act 70 of 1979
• Whether the agreement contravenes public policy by purporting to change the matrimonial property regime without court approval
• Whether it is in the interests of justice to grant leave to appeal where constitutional issues are raised for the first time in the Constitutional Court
• Whether the judgment infringes constitutional rights to contractual freedom, dignity and non-discrimination

1. The application for leave to appeal is dismissed. 2. Each party must pay his or her own costs.

1. The Constitutional Court's appellate powers exist to intervene in and correct determinations by lower courts, not to determine novel issues raised for the first time before it. 2. It is not in the interests of justice to grant leave to appeal where constitutional arguments are raised for the first time in the Constitutional Court without exceptional circumstances, particularly where this would prejudice the opposing party who had no opportunity to respond to these arguments in lower courts. 3. Decisions are more likely to be correct if more than one court has been required to consider the issues raised, as this allows the losing party an opportunity to challenge the reasoning and refine arguments. 4. The importance of an issue or existence of conflicting judgments do not, without more, constitute exceptional circumstances justifying the Court being a court of first and last instance.

The Court observed that a proper interpretation of the Supreme Court of Appeal judgment revealed it did not prescribe a blanket bar on all agreements between spouses married out of community of property, but only related to the specific agreement whose terms appeared to change the parties' matrimonial regime without court sanction. The Court noted that constitutional issues can be raised through the avenue of whether an agreement is in line with public policy as infused with constitutional values, citing Barkhuizen v Napier that a term in a contract inimical to constitutional values is contrary to public policy and unenforceable. The Court also made observations about costs, noting that ordinarily costs follow the result, but in this case a just and equitable costs award was one where each party pays their own costs given the context and circumstances.

This case clarifies the jurisdiction of the Constitutional Court and reinforces the principle that the Court will generally not entertain constitutional arguments raised for the first time before it, absent exceptional circumstances. It confirms the importance of the court hierarchy and the prejudice that may result when novel arguments deprive a party of the opportunity to respond through the normal appellate process. The case also touches on the intersection between the Matrimonial Property Act's requirements for changing matrimonial property regimes (requiring court sanction under section 21(1)) and agreements concluded between spouses, particularly in the context of divorce contemplation under section 7(1) of the Divorce Act. While the Court found jurisdiction on the basis that constitutional issues relating to contractual freedom and public policy were raised, it ultimately refused leave to appeal on interests of justice grounds, thereby leaving undisturbed the Supreme Court of Appeal's finding that the specific postnuptial agreement was unenforceable as it was not concluded in contemplation of divorce.