Sango Patekile Holomisa v Bukelwa Nolizwe Holomisa

The appellant and respondent were married on 16 December 1995 in Mqanduli, in the erstwhile Transkei, Eastern Cape. The appellant initiated divorce proceedings in the Regional Court, alleging the marriage was out of community of property. The respondent contended the marriage was in community of property. The parties agreed the marriage had broken down irretrievably and settled issues relating to their minor children, but could not agree on their matrimonial property regime. The regional court found that the retrospective operation of the Marriage Extension Act 50 of 1997 meant all marriages concluded without an ante-nuptial contract after 27 April 1994 in the former TBVC areas were deemed to be South African marriages in community of property. The Regional Court granted a decree of divorce and ordered division of the joint estate. The appellant appealed to the High Court, which agreed the Extension Act did not alter matrimonial property regimes but then raised the issue of domicile mero motu and dismissed the appeal on the basis that the appellant had not established that either party was domiciled in the former Transkei. The appellant appealed to the Supreme Court of Appeal.

• Whether the Marriage Extension Act 50 of 1997 operated retrospectively to alter the matrimonial property regime of parties who married without an ante-nuptial contract after 27 April 1994 in the former Transkei
• Whether the marriage between the parties was in or out of community of property
• Whether the High Court erred in considering the issue of domicile when it was not raised in the appeal and was common cause between the parties
• Whether section 7(3) of the Divorce Act 70 of 1979 is unconstitutional for not allowing redistribution of assets to women married under the Transkei Marriage Act

The appeal was upheld. The High Court order dismissing the appeal was set aside. The Regional Court order was substituted to the limited extent that paragraph 4 (ordering division of the joint estate) was deleted, and the defendant's counterclaim was dismissed. No costs order was made as the appellant agreed to forego costs.

The binding legal principles established are: (1) The Marriage Extension Act 50 of 1997 did not operate retrospectively to alter the matrimonial property regime of parties who married without an ante-nuptial contract after 27 April 1994 in the former TBVC states; (2) Marriages solemnized under the Transkei Marriage Act 21 of 1978 without an ante-nuptial contract or declaration to marry in community of property were out of community of property; (3) A court on appeal should not raise issues mero motu that were not raised in the appeal and were common cause between the parties; (4) A court will not allow a new point to be raised for the first time on appeal unless it was covered by the pleadings; (5) Courts cannot make new contracts for parties and must enforce the terms of their existing marriage contract.

The High Court made obiter observations regarding the constitutionality of retrospectively altering matrimonial property regimes, stating that 'the notion that the legislature may by statute, and with retrospective effect, alter the matrimonial property regime of married couples, is fundamentally repugnant to the tenets of our matrimonial jurisprudence and Chapter 2 of the Constitution' and that it was 'difficult to conceive of any justification for such a draconian provision in a free and open democratic society'. While this supported the High Court's conclusion on the interpretation of the Extension Act, it was not necessary for the decision and represents obiter commentary on the constitutional implications of retrospectively altering marriage regimes.

This case is significant in South African matrimonial property law as it clarifies that the Marriage Extension Act 50 of 1997 did not retrospectively alter the matrimonial property regimes of marriages solemnized in the former TBVC states (Transkei, Bophuthatswana, Venda and Ciskei) after 27 April 1994 but before the Extension Act came into operation. The judgment confirms that parties who married under the Transkei Marriage Act 21 of 1978 without an ante-nuptial contract were married out of community of property, and this regime was not changed by the Extension Act. The case also demonstrates the principle that a court will not make a new contract for parties and must enforce the terms of their marriage contract. It reinforces procedural requirements that new issues cannot be raised mero motu by a court on appeal or by parties for the first time on appeal unless covered in the pleadings.