Lonwabo Hlakanyane v Ziyanda Hlakanyane

The parties were married in community of property on 22 December 2015. Prior to the marriage, in 2011, the respondent was involved in a motor vehicle accident and was awarded non-patrimonial damages in the amount of R800,000. She invested R550,000 with Standard Bank in an interest-bearing account. The appellant contended that prior to the marriage the respondent had made him aware of the investment. In 2018, the appellant instituted divorce proceedings in the Mthatha Regional Court seeking a decree of divorce and division of the joint estate. The respondent contended that the investment did not form part of the joint estate and should be excluded as it constituted non-patrimonial damages received as a result of a delict committed against her in terms of s 18(a) of the Matrimonial Property Act 88 of 1984. The Regional Court excluded the investment from division of the joint estate. On appeal, the Eastern Cape High Court, Mthatha, confirmed the exclusion by a majority (2 to 1), with a minority judgment holding that the investment should form part of the joint estate.

• Whether non-patrimonial delictual damages received by a spouse before marriage in community of property fall within the protection of s 18(a) of the Matrimonial Property Act 88 of 1984
• Whether such damages become part of the joint estate upon marriage in community of property or remain separate property of the injured spouse
• The proper interpretation of the phrase 'married in community of property' in s 18(a) of the Act

The appeal was upheld with no order as to costs. The order of the Eastern Cape Division of the High Court, Mthatha was set aside and replaced with an order that: (1) the appeal is upheld with no order as to costs; and (2) the investment of the respondent is to be included in the joint estate for the purposes of division of the estate. The matter was disposed of without an oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.

Section 18(a) of the Matrimonial Property Act 88 of 1984 applies only to non-patrimonial delictual damages recovered during the course of a marriage in community of property. Damages recovered prior to such a marriage do not fall within the protection of s 18(a) and therefore form part of the property of the injured spouse which, upon marriage in community of property, falls into the joint estate for division upon divorce. The phrase 'notwithstanding the fact that a spouse is married in community of property' in s 18(a) indicates that the provision operates during the currency of such a marriage, not before it. Absent an antenuptial contract or other matrimonial property regime excluding such pre-marital assets, damages for non-patrimonial loss received before marriage become part of the joint estate.

The dissenting judgment by Mocumie JA made several important observations: (1) that the nature and purpose of non-patrimonial damages are personal and intended for the personal use of the injured party, and this character should not be changed by the matrimonial property regime chosen; (2) that s 39(2) of the Constitution requires courts to interpret s 18(a) in a manner that promotes constitutional values including equality; (3) that as a general rule, non-patrimonial damages are personal to a particular person and not divisible, similar to gifts and inheritance; (4) that the objective validity of a law is derived from the Constitution and not personal choice or preference; (5) that this represents an opportunity for the legislature to make express provision for persons in the respondent's position to avoid confusion in future. The majority judgment noted that Van Den Berg v Van Den Berg dealt primarily with whether damages received during marriage were contractual or delictual in nature, making it not directly relevant to the determination of whether damages received before marriage fall within s 18(a). The dissent also observed that the division of the estate should be determined at the time of dissolution of the marriage, not when the marriage was entered into.

This case provides important clarification on the scope and application of s 18(a) of the Matrimonial Property Act 88 of 1984. It establishes the principle that the protection afforded by s 18(a) - excluding non-patrimonial delictual damages from the joint estate - applies only to damages received during the course of a marriage in community of property, not to damages received before such a marriage. The case highlights the tension between a strict textual interpretation of the statute and a purposive interpretation that considers the constitutional values of equality and fairness. The case is significant for its implications for spouses who receive personal injury damages prior to marriage and subsequently marry in community of property. It demonstrates the importance of antenuptial contracts for parties who wish to protect pre-marital assets. The dissenting judgment by Mocumie JA raises important questions about the nature of non-patrimonial damages and their treatment in matrimonial property law, suggesting potential legislative reform.