B[….] v B[….]  ZASCA 123
The appellant (CB) and respondent (DB) entered into an ante-nuptial contract (ANC) which was duly registered in the deeds office in January 2015. Under the ANC they were to be married out of community of property without the accrual. In February 2015 they entered into an agreement under which DB undertook to make certain donations to CB, including a house to the value of R1.5m, contributions to medical aid, a vehicle, a life policy, and maintenance for life. CB and DB were married in May 2015. DB started divorce proceedings in 2018. The parties requested the Regional Court, Springs to adjudicate the enforceability of the agreement separately. DB’s case was that the agreement was unenforceable as it sought to alter the terms of the ANC. CB argued that the agreement was separate from the ANC, was a binding contract of donation, and that the principle of pacta sunt servanda should apply. The regional court ruled in CB’s favour. On appeal the Gauteng High Court Pretoria (Bam AJ) overturned this decision on the grounds that the agreement was unenforceable as it sought to alter the effect of the ANC under which the parties were married out of community of property without the accrual. CB appealed against this decision to the Supreme Court of Appeals (SCA).
The SCA (Kgoele AJA with Van der Merwe and Molemela JJA and Salie-Hlophe and Masipa AJJA concurring) held that the agreement did not seek to alter the ANC and in fact recognised and confirmed that the parties were aware of, and bound to, the terms of the ANC. However, parties were free to contract as they saw fit and the agreement did in no way infringe on the court’s powers under the Divorce Act, nor did it attempt to alter the matrimonial property regime. The appeal was upheld and the decision of the Pretoria High Court overturned, resulting in the agreement being declared valid and enforceable.