Brookstein v Brookstein (20808/14) [2016] ZASCA 40

The question as to when the value of accrual should be determined in a divorce was finally settled by the Supreme Court of Appeal in the matter of Brookstein v Brookstein.

The issue in this case was whether the value of an accrual should be determined, ie, at the close of pleadings, or at the dissolution of the marriage, either by death or by divorce.

The provisions of the Matrimonial Property Act 88 of 1984 (the MPA) are clear and unambiguous. In terms of s 3 thereof, a spouse acquires a right to claim an accrual at the ‘dissolution of a marriage’. An exception arises in terms of s 8 of the MPA. In terms of this section, a spouse is entitled to approach the court for immediate division of the accrual, where his or her right to share in it at dissolution of the marriage ‘will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse’. It is only then that the date for determination of an accrual is brought forward, instead of at ‘dissolution of the marriage’. Furthermore, in terms of s 4 of the MPA the net value of the accrual of the estate of a spouse is determined at the dissolution of the marriage.

This issue has given rise to dissenting decisions in two lines of cases in the high court. The one view is that the correct date upon which the accrual must be determined is at the stage of litis contestatio, (the close of the pleadings) whereas the other view is that this must be calculated at the date of dissolution of the marriage. In MB v NB 2009 ZAGPJHC 76; 2010 (3) SA 220 (GSJ) Brassey AJ held that although s 3 establishes the moment at which the contingent right possessed by a spouse becomes perfected i.e., at the dissolution of the marriage, it does not establish the moment by reference to which the respective estates of the parties must be assessed. The learned acting judge was of the view that the problem was one of procedure, not substance, and owed its origin to the fact that litigation takes time to complete. In his view, the established principle was that the operative moment was litis contestatio, for that was the moment when the dispute crystallises and can be presented to court for decision. The view in MB v NB was followed in the case of MB v DB [2013] ZAKZDHC 33; 2013 (6) SA 86 (KZD) and KS v MS [2015] ZAKZDHC 43; 2016 (1) SA (64) (KZD).

However, in JA v DA 2014 (6) SA 233 (GJ) Sutherland J correctly pointed out at para 11 that the views of Brassey AJ were obiter and disagreed with the view that the date of the close of pleadings is the date upon which to determine the content and value of the estates. In his view, that date was irrelevant for this exercise and the date of dissolution was the only relevant date upon which to calculate the respective estates. Because the event of litis contestatio was purely procedural, it had no bearing on the definition of, or identification of any alleged right which was the subject of litigation, nor had it any bearing on the determination when, by operation of law, or upon any given facts any right comes into being.

Sutherland J then stated the following at para 17:
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‘When, as in this case, a claim is based on the existence of a right and the claim is for a performance measured by value it is not possible to calculate that value at a moment prior to the coming into existence of the right.’

The SCA found that the view of Sutherland J that the time when the right comes into existence is determinative of the calculation of the value of that right is undoubtedly jurisprudentially correct. The court did not agree with the view expressed in Le Roux v Le Roux (2010) JOL 26003 (NCK) which was followed in KS v MS that this conclusion will result in a piecemeal adjudication of issues resulting in further litigation between the parties. This view was based upon the proposition that a litigant would have to engage in two distinct actions. The first would be for a divorce and the second for an order in terms of s 3 of the MPA. The SCA agreed, however, with the view of Sutherland J that it would not be inappropriate to sue for both a divorce and an order pursuant to s 3 of the MPA in a single action, in which the accrual order is made dependent upon the grant of a divorce order.

The SCA further found that the other problems averted to by Brassey AJ and Sutherland J which may result from this determination of the date upon which the accrual must be calculated, cannot obscure what is the clear meaning of the Act. As stated in  Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 2012 (4) SA 593 (SCA) para 18:

‘Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. . .’

Consequently, MB v NB and MB v DB as well as KS v MS which held that the date for determination of accrual is at litis contestatio rather than at the dissolution of marriage, were wrongly decided.

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Author

Bertus Preller studied at the universities of the Free State and Johannesburg. Bertus is also an experienced mediator and arbitrator. He is the author of Everyone's Guide To Divorce and Separation, published by Random House (2013) and he writes regularly on news24.com. He is also the founder of Divorcelaws, South Africa's premier website on Family Law. He is a member of the International Bar Association and serves on the Family Law Committee and the African Regional Forum of the Association.