Van der Merwe v Van der Merwe

On 7 January 2011, the parties signed a power of attorney authorizing an attorney (Mr Weyers) to sign an ante-nuptial contract on their behalf before a notary public. The marriage was scheduled for 8 January 2011. The appellant was a professional rugby player and the respondent ran a finishing and modelling school. When signing the power of attorney, the respondent became distressed upon learning the marriage would be out of community of property without accrual. She expressed preference for a marriage with accrual. According to her version, she was assured by both the appellant and Mr Weyers that the ante-nuptial contract would be amended after the honeymoon to include accrual. The appellant denied making such assurance and testified he would not have married if accrual was included. The ante-nuptial contract was registered with Clause 3 expressly excluding the accrual system. In October 2012, the appellant sued for divorce. The respondent counterclaimed for rectification of the ante-nuptial contract to include accrual, alleging common intention of parties was not reflected in the contract.

• Whether rectification of the ante-nuptial contract was competent in circumstances where there was no common mistake or common continuing intention between the parties
• Whether Clause 3 of the ante-nuptial contract expressly excluding the accrual system could be deleted on the basis of lack of consensus
• Whether a declaratory order that the accrual system applies could be made despite the clear terms of the registered ante-nuptial contract
• The requirements for rectification of a written agreement under South African law
• The effect of section 2 of the Matrimonial Property Act 88 of 1984 requiring express exclusion of accrual in the ante-nuptial contract itself

The appeal was upheld with costs. The order of the Full Court was set aside and substituted with an order upholding the appeal with costs including costs of two counsel. The trial court's order was set aside and substituted with an order dismissing the defendant's (respondent's) counterclaim relating to rectification and ordering the defendant to pay the plaintiff's costs relating to the dispute on rectification.

Rectification of a written agreement requires proof of a common continuing intention of the parties that is not reflected in the agreement, or a common mistake. Where there is no consensus between parties regarding a material term, and no common mistake or misunderstanding, rectification is not competent. Section 2 of the Matrimonial Property Act 88 of 1984 requires that the accrual system must be expressly excluded in the ante-nuptial contract itself. Clear and unambiguous terms of a registered ante-nuptial contract cannot be deleted or ignored on the basis of lack of consensus alone or the unilateral assertion of one party. The integration (parole evidence) rule prevents extrinsic evidence from contradicting, adding to or modifying the meaning of a document intended to provide a complete memorial of a jural act.

The court observed that generally contracts entered into between adults of full contractual capacity are enforced to the letter and courts should refrain from creating contracts for parties. The court noted that a registered ante-nuptial contract gives notice to the world and binds third parties including creditors, which is why it cannot be amended by parties between themselves. The court commented that section 88 of the Deeds Registries Act provides for court authorization for post-nuptial execution of a notarial contract only where terms were agreed before marriage, which was not the case here. The court also noted that the declaratory order made by the trial court failed to address the issue of net values of the parties' estates required under section 4 of the Act, which would result in the absurdity that the ante-nuptial contract would still not comply with the Act even if the order were upheld.

This case is significant in South African family law and contract law for clarifying the strict requirements for rectification of ante-nuptial contracts. It establishes that rectification cannot be used to escape clear contractual terms where there is no common mistake or common continuing intention between parties. The judgment reinforces the importance of the express exclusion requirement in section 2 of the Matrimonial Property Act 88 of 1984 and protects the sanctity of registered ante-nuptial contracts. It serves as an important reminder that courts will not create contracts for parties or override clear written terms based on unilateral expectations or disputed oral assurances. The case also emphasizes that registered ante-nuptial contracts bind third parties and cannot be amended by parties between themselves without court authorization under section 88 of the Deeds Registries Act.