THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 775/2020
In the matter between:
LONWABO HLAKANYANE

APPELLANT

and

ZIYANDA HLAKANYANE

RESPONDENT

Neutral citation: Lonwabo Hlakanyane v Ziyanda Hlakanyane (775/2020) [2021]
ZASCA 130 (30 September 2021)
Coram:
MBHA, MOCUMIE, SCHIPPERS, GORVEN and HUGHES JJA

Heard: Appeal disposed of without the hearing of oral argument in terms of s 19(a) of
the Superior Courts Act 10 of 2013.

Delivered: This judgment was handed down electronically by circulation to the parties’
representatives via email, publication on the Supreme Court of Appeal website and
release to SAFLII. The date and time for hand-down is deemed to be 11h00 on 30
September 2021.

Summary: Matrimonial Property Act 88 of 1984 – interpretation of s 18 – amount
received as non-patrimonial delictual damages prior to marriage in community of
property – part of the joint estate – not excluded by s 18(a) of the Act – appeal in terms
of s 19(a) of the Superior Courts Act 10 of 2013.

____________________________________________________________________

ORDER
____________________________________________________________________
On appeal from: Eastern Cape Division of the  High Court, Mthatha (Majiki and Jaji JJ
and Mababane AJ sitting as court of appeal):

The appeal is upheld with no order as to costs.
The order of the Eastern Cape Division of the High Court, Mthatha is set aside
and replaced with the following order:
‘2.1
The appeal is upheld with no order as to costs.
2.2
The investment of the respondent is to be included in the joint estate for the
purposes of division of the estate.’
____________________________________________________________________

JUDGMENT
____________________________________________________________________
Hughes JA (Mbha, Schippers and Gorven JJA concurring):
[1] This appeal concerns the interpretation and application of s 18(a) of the
Matrimonial Property Act 88 of 1984 (the Act). The parties were married in community
of property on 22 December 2015. 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 an amount of R550 000 with Standard Bank in an interest-
bearing account (the investment). The appellant contended that prior to the marriage
the respondent had made him aware of the investment.

[2] In these proceedings the parties agreed that the appeal may be disposed of
without an oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013.
Further, the respondent also sought condonation for the late filing of her heads of
argument, which was nine days overdue. There is no opposition from the appellant,
the period is not excessive and a reasonable explanation has been proffered.
Accordingly, the non-compliance is condoned.

[3] 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 in

her amended plea 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 Act. Section 18(a) of the Act
states as follows:
‘Notwithstanding the fact that a spouse is married in community of property—
(a) any amount recovered by him or her by way of damages, other than damages for
patrimonial loss, by reason of a delict committed against him or her, does not fall into the joint
estate but becomes his or her separate property;
(b) he or she may recover from the other spouse damages in respect of bodily injuries suffered
by him or her and attributable either wholly or in part to the fault of that spouse and these
damages do not fall into the joint estate but become the separate property of the injured
spouse.’

[4] The respondent placed reliance on Van Den Berg v Van Den Berg.1 She
contended that the non-patrimonial damages received as a result of the motor vehicle
collision in 2011 were personal in nature and as such should be excluded from the joint
estate. Van Den Berg is not relevant to the determination of this matter as it dealt
primarily with the question of whether damages received by a spouse during the course
of a marriage in community of property were either contractual or delictual in nature.
That court reasoned:
‘The damages received by the defendant are of a personal nature. The purpose and objective is to take
care of the defendant during or throughout his disabled life. Should the Legislature have intended that
such damages form part of the joint estate, the purpose and objective of such payment would be
negated. It is, besides, fair and equitable to exclude the money from the joint estate notwithstanding the
ethos of a marriage in community of property.’ 2

[5] Upon conclusion of the divorce proceedings, the regional court ordered the
division of the joint estate, but excluded the investment from the division. The regional
court stated that the meaning of ‘married in community of property’ in s 18(a) of the Act
referred ‘to the stage when it has to be determined if that property will be included in
the joint estate’. That being the case, this would be at the stage of divorce as opposed
to when such damages accrued to a person, thus the investment would fall out of the
joint estate.

1 Van Den Berg v Van Den Berg 2003 (6) SA 229 (T).
2 Ibid para 12.

[6] Unhappy with the outcome in the regional court, the appellant appealed to the
Eastern Cape Division of the High Court, Mthatha (high court). The high court was split
two to one, the majority, Majiki and Jaji JJ, confirmed the regional court’s order
excluding the investment from the joint estate. It acknowledged that s 18(a) applied
only to a spouse injured after the conclusion of their marriage, but went on to state:
‘Still, I would not view the non-reference to the spouses who were injured and paid before their
marriage in community of property as an intentional exclusion. The failure to specifically
provide for them appears to be more of an omission than an exclusion.
Therefore, in the light of the fact that I find no exclusion of the class of people in the
respondent’s position, I would conclude that their personal injury [pay-out] too, should not form
part of the joint estate.’

[7] Mbabane AJ in a minority judgment concluded that s 18 ‘by its design, applies
where there is a joint estate. The concept of a joint estate comes into being on the date
of the marriage’. He understood that the object of the section was to protect spouses
and that the respondent had a choice to exclude the investment, one way of which was
by entering into a marriage out of community of property. Thus, when the parties were
married in community of property that investment formed part of the joint estate.

[8] The proper approach to the interpretation of a statute was recently restated in
C:SARS v United Manganese of Kalahari (Pty) Ltd:
‘It is an objective unitary process where consideration must be given to the language used in
the light of the ordinary rules of grammar and syntax; the context in which the provision
appears; the apparent purpose to which it is directed and the material known to those
responsible for its production. The approach is as applicable to taxing statutes as to any other
statute. The inevitable point of departure is the language used in the provision under
consideration.’3

[9] The context of s 18 must be read in its entirety, and apparent therefrom is the
plain language and words used. The section highlights that delictual damages received
by a spouse during the course of a marriage in community of property, which are non-
patrimonial in nature (s 18(a)); and damages for bodily injuries owing to the fault of

3 C:SARS v United Manganese of Kalahari (Pty) Ltd [2020] ZASCA 16; 2020 (4) SA 428 (SCA) para 8.

one’s spouse in terms of s 18(b) must be excluded from the division of the joint estate
on divorce.

[10] The protection afforded by s 18(a) applies notwithstanding a marriage in
community of property. In such a case, damages recovered during such a marriage for
non-patrimonial loss becomes the property of the injured spouse and does not form
part of the joint estate. It does not apply to damages recovered prior to such a marriage.
Consequently, the damages attained by the respondent which were received before
the conclusion of the marriage between the parties were the property of the
respondent. On being married in community of property, the property of each party to
the marriage fell into the joint estate, inclusive of any damages for non-patrimonial
losses recovered prior to the marriage.

[11] Thus, the respondent’s contention that she was entitled to the protection
afforded by s 18(a) is misplaced, absent the adoption of a different matrimonial
property regime which excluded the investment by way, for example, of an antenuptial
contract. Therefore, the appeal must succeed.

[12] In the result the following order is granted:
The appeal is upheld with no order as to costs.
The order of the Eastern Cape Division of the High Court, Mthatha is set aside
and replaced with the following order:
‘2.1
The appeal is upheld with no order as to costs.
2.2
The investment of the respondent is to be included in the joint estate for the
purposes of division of the estate.’

__________________
W HUGHES
JUDGE OF APPEAL

Mocumie JA
[13] I have had the benefit of reading the judgment of Hughes JA in which my other
colleagues concur. However, I find myself in respectful disagreement with her
conclusion that the appeal ought to succeed on the basis that ‘the respondent’s
contention that she was entitled to the protection afforded by s 18(a) is misplaced,
absent the exclusion of the investment by way of an antenuptial contract.’

[14] The majority disagrees with the crux of the respondent’s plea. They are of the
view that ‘the non-patrimonial damages received as a result of the motor vehicle
collision in 2011 were personal in nature and as such should be excluded from the
division of the joint estate. Thus, the reliance on Van Den Berg v Van Den Berg.’4
However, they accept that ‘the damages [paid to] the respondent which were received
before the conclusion of the marriage [in community of property] between the parties
were the property of the respondent. They also hold the view that ‘on being married in
community of property, the property of each party to the marriage fell into the joint
estate.’ In addition, they hold that ‘Van Den Berg is not relevant to the determination
of this matter as it dealt primarily with the question of whether damages received by a
spouse during the course of a marriage in community of property were either
contractual or delictual in nature.’

[15] As the majority in this judgment has mentioned, the principles of interpretation
of statutes are trite.5 The Act does not define the word ‘damages’. The point of
departure must be the common cause fact which the majority judgment also
acknowledged that the damages were non-patrimonial and thus personal in nature. In
Van der Merwe v Road Accident Fund and Another,6 the Constitutional Court in
interpreting the word ‘damages’ stated that the notion of damages is best understood
not by its nature but by its purpose. The primary purpose of awarding damages is to
place, to the fullest possible extent, the injured party in the same position [they] would

4 Van Den Berg v Van Den Berg 2003 (6) SA 229 (T) para 12.
5 See para 8 above. This approach was endorsed recently by the Constitutional Court in Road Traffic
Management Corporation v Wymark Infotech Pty Ltd (440/2017) [2018] ZASCA 11 (6 March 2018).
6 Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4; 2006 (4) SA 230 (CC);
2006 (6) BCLR 682 (CC) (30 March 2006).

have been in, but for the wrongful conduct.7 The court in Van den Berg in defining the
nature of this category of damages stated as follows:
‘The damages received by the defendant are of a personal nature. The purpose and objective
is to take care of the defendant during or throughout his disabled life. Should the Legislature
have intended that such damages form part of the joint estate, the purpose and objective of
such payment would be negated. It is, besides, fair and equitable to exclude the money from
the joint estate notwithstanding the ethos of a marriage in community of property.’ 8

[16] Besides the fact that ‘this matter …dealt primarily with the question of whether
damages received by a spouse during the course of a marriage in community of
property were either contractual or delictual in nature…’ as the majority contends, the
damages the respondent received are exactly the same in nature and were awarded
for the same purpose as the damages Van der Merwe and Van den Berg dealt with.
From the time that the RAF awarded the respondent non-patrimonial damages, those
were ring-fenced for her personal use and for her personal injuries. The nature and
purpose of the damages could not be changed by the respondent entering into a
marriage in community of property. If these damages are ordinarily excluded from
being divided, it matters not when the respondent received them. In any event, as a
general rule, non-patrimonial damages are personal to a particular person, and are
therefore not divisible whether or not they are expressly excluded. Therefore, portions
of the settlement designated as ‘pain and suffering’ or ‘loss of consortium’ are not
divisible between the spouses. This is the same rule that applies to gifts and
inheritance – it is the spouse’s ‘personal property’ and not divisible.

[17] The other significant principle in interpretation the majority judgment lost sight
of is the aspect that deals with the context and the purpose for which the text or section
is intended for. The textual interpretation preferred by the majority does not assist in
resolving the issue in this matter as it undercuts the purpose of the section. The issue
requires a close examination of the relevant context and purpose of the section. Should
the Legislature have intended that such damages form part of the joint estate, the
purpose and objective of such payment would be negated.

7 Paragraph 37.
8 Van Den Berg v Van Den Berg 2003 (6) SA 229 (T) para 12.

[18] First, in my considered view, the judgment of the Constitutional Court in Van der
Merwe, laid the foundation upon which s 18 in its entirety should be interpreted. The
RAF contended that the applicant chose to marry in community of property and should
have been held to the proprietary consequences of her choice, therefore, respondent
waived the right to attack the validity of the laws.9 The Constitutional Court held that
the objective validity of a law is derived from the Constitution and not personal choice
or preference. It stated as follows:
‘Section 39(2) obliges courts to interpret legislation in a manner that promotes the spirit, purport
and objects of the Bill of Rights. And importantly, s 172(1) makes plain that when deciding a
constitutional matter within its power, a court must declare that any law that is inconsistent with
the Constitution is invalid to the extent of its inconsistency. Thus, the constitutional obligation
of a competent court to test the objective consistency or otherwise of a law against the
Constitution does not depend on and cannot be frustrated by the conduct of litigants or holders
of the rights in issue. Consequently, the submission that a waiver would, in the context of this
case, confer validity to a law that otherwise lacks a legitimate purpose, has no merit (Emphasis
added).’10

[19] In this case, even if ‘the validity of the law’ was not challenged, as the minority
of the full court held, which the majority in this Court seems to uphold, the approach
propounded in Van der Merwe means that this Court and so too the regional court and
the full court, is bound to interpret s 18 (a) in line with the dictates of s 39(2) of the
Constitution which binds courts when interpreting any legislation; by taking into
account the spirit and purport of the values underpinning the Constitution including s
9, the equality clause. To do otherwise would be unjust and inequitable.

[20] Second, the regional court correctly held that the division of the estate must be
determined at the time of the dissolution of the marriage, not when the marriage was
entered into. So, in my view, and in line with the interpretation I espouse above, as at
the time of the division of the joint estate the respondent was entitled to the same
protection which ‘a spouse in a marriage in community of property’ provided by s
18(1)(b). That RAF awarded the respondent the damages before her marriage in

9 The Van der Merwe case para 59.
10 Ibid at para 61.

community of property cannot be used to disadvantage her. The law cannot impose
such an interpretation of the joint estate on the parties as suggested by the majority.

[21] In conclusion, conscious of the role of courts in the determination of issues
before them and the responsibility to defer certain matters to the legislature, I would
be remiss if I do not state that this is an opportunity for the legislature to study this
judgment, and make express provision for this class of persons as the respondent in
this matter to avoid any confusion in the future.

[22] Finally, if s 39(2) is invoked, as it ought to be, this Court is bound to follow the
interpretation and logic propounded in Van der Berg and Van der Merwe. In the result,
I would find that the damages paid by RAF to the respondent for her non-
patrimonial/special damages meant for her personal use, before her marriage in
community of property, do not fall into the joint estate. The appeal ought not to
succeed.

BC MOCUMIE
JUDGE OF APPEAL

APPEARANCES
For appellant:
Z Z Matebese SC (with H Kelaotswe)
Instructed by:
Caps Pangwa & Associates, Mthatha

Bokwa Inc., Bloemfontein.

For respondent:
L L Sambudla (with Z Badli)
Instructed by:
Manitshana Tshozi Attorneys, Mthatha

Gcasamba Inc., Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 September 2021
Status:
Immediate

The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal

Lonwabo Hlakanyane v Ziyanda Hlakanyane (775/2020) [2021] ZASCA 130 (30 September
2021)
___________________________________________________________________________
Today the Supreme Court of Appeal (SCA) handed down judgment upholding the appeal by the
appellant, and set aside the order of the Eastern Cape Division of the High Court, Mthatha (high court).

The issue before the SCA concerned the interpretation and application of s 18(a) of the Matrimonial
Property Act 88 of 1984 (the Act), specifically whether an award of R800 000 in respect of non-
patrimonial damages formed part of the joint estate.

The parties were married in community of property on 22 December 2015. 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 an amount of R550 000 with Standard Bank in an interest-bearing account (the
investment). 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 in her amended plea
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 Act. Upon conclusion of the divorce proceedings, the regional court ordered the division
of the joint estate, but excluded the investment from the division. The appellant appealed to the high
court. The high court was split two to one, the majority however confirmed the regional court’s order
and excluded the investment from the joint estate.

On appeal the SCA in a majority judgment held that the investment of the respondent was to be included
in the joint estate for the purposes of division of the estate. The SCA held further that the context of
s 18 must be read in its entirety, and apparent therefrom was the plain language and words used. The
section highlighted that delictual damages received by a spouse during the course of a marriage in
community of property, which were non-patrimonial in nature (s 18(a)); and damages for bodily injuries
owing to the fault of one’s spouse in terms of s 18(b) must be excluded from the division of the joint
estate on divorce. The SCA concluded that the protection afforded by s 18(a) applied notwithstanding
a marriage in community of property. In such a case, damages recovered during such a marriage for
non-patrimonial loss became the property of the injured spouse and did not form part of the joint estate.
It did not apply to damages recovered prior to such a marriage; and therefore it did form part of the joint
estate.

In a separate dissenting judgment it was held that the damages paid to the respondent for her non-
patrimonial/special damages meant for her personal use, before her marriage in community of property
did not fall into the joint estate and thus appeal ought not to succeed. There were no reasons for
restricting the reach of the section to the award of damages that were acquired before the marriage by
spouses who were married in community of property subsequent thereto. This interpretation would not
offend against the provisions of the Act as the date of such award was not expressly excluded in it.