THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 564/2016(ECM)
In the matter between:
SANGO PATEKILE HOLOMISA

APPELLANT

and

BUKELWA NOLIZWE HOLOMISA

RESPONDENT

Neutral citation: Patekile Holomisa v Nolizwe Holomisa (564/2016) [2017] ZASCA
64 (29 May 2017)
Coram:
Cachalia, Tshiqi, Saldulker and Dambuza JJA and Mbatha AJA
Heard:
16 May 2017
Delivered:  29 May 2017
Summary:
Civil marriage solemnized in December 1995 in the erstwhile Transkei:
the Marriage Extension Act 50 of 1997 did not alter the matrimonial property regime
of parties who married without an ante-nuptial contract after 27 April 1994: marriage
out of community of property.

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ORDER
___________________________________________________________________

On appeal from: Eastern Cape Division, Mthatha High Court, (Smith J and Renqe
AJ sitting as court of appeal):
1 The appeal is upheld.
2 The order of the High Court dismissing the appeal is set aside and in its stead the
following order is substituted:
a) The appeal is upheld and the order of the Regional Court is substituted to the
limited extent that paragraph 4 is deleted;
b) The defendant’s counterclaim is dismissed.

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JUDGMENT
___________________________________________________________________
Tshiqi JA (Cachalia, Saldulker and Dambuza JJA and Mbatha AJA concurring):

[1] The issue in this appeal is whether a civil marriage between the appellant and
the respondent, solemnized on 16 December 1995, in Mqanduli, an area located in
the erstwhile Transkei, Eastern Cape, was in or out of community of property. The
issue arose in a divorce action initiated by the appellant (as plaintiff) in the Regional
Division of the Eastern Cape, Mthatha, in which he alleged that the marriage
relationship was out of community of property. The respondent (as defendant) in her
plea alleged that the marriage was in community of property whereas in his plea to
the respondent’s counterclaim he stated that they were married in terms of s 39(1) of
the Transkei Marriage Act 21 of 1978 (the Transkei Act) – and that the marriage was
consequently out of community of property. The parties were in agreement that the
marriage relationship had broken down irretrievably with no prospects of the
restoration of a normal marriage relationship between them. In the regional court the

parties settled all issues relating to parental responsibilities towards their minor
children, but could not reach agreement on their matrimonial property regime.

[2] On the day of the hearing the respondent did not appear in court and was not
represented. Before hearing evidence, the regional magistrate invited the appellant’s
legal representative to address the court on the legal consequences of the Marriage
Extension Act 50 of 1997 (the Extension Act) on the matrimonial property regime of
the parties. After hearing argument on this issue, it found that the retrospective
operation of the Extension Act meant that all marriages concluded without an ante-
nuptial contract after 27 April 1994, in the former TBVC areas were deemed to be
South African marriages. It further held that the Transkei Act was ‘either amended or
repealed impliedly’ by the Extension Act and that consequently the parties were
married in community of property and profit and loss. The court consequently made
the following order:
‘1)...
2)
Decree of divorce is hereby granted;
3)
The two minor children shall primarily reside with the plaintiff, defendant shall have
reasonable contact;
4)
By virtue of the ruling by the court that the marriage is in community of property,
division of the joint estate is ordered;
5)
Each party to pay its own costs.1 ’

[3] The appellant appealed to the High Court, Eastern Cape, Mthatha, contending
that the regional court erred in concluding that the Extension Act had the effect that
all marriages concluded without an ante-nuptial contract in the erstwhile Transkei,
after 27 April 1994 were in community of property. The high court found in favour of
the appellant on this issue and said that ‘[t]he 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’. It found it difficult ‘to conceive of any justification

[1] 1 The order does not deal with the maintenance of the minor children but in response to a
question from the bench in this court, the appellant’s representative stated that the appellant is
responsible for the maintenance of the children.

for such a draconian provision in a free and open democratic society’. It thus
concluded that the retrospective operation of the Extension Act did not have the
effect of altering the matrimonial property regimes of parties whose marriages were
solemnized after 27 April 1994.

[4] Having determined that issue, which was the only matter it had to resolve in
the appeal, the high court mero motu went further and said that ‘[t]he respondent’s
contention that the appellant failed to adduce sufficient evidence to establish that the
marriage was solemnized in terms of the Transkei Act, however, ha[d] greater merit
and compel[led] thorough consideration’. The court then referred to the following
evidence which it said was the appellant’s testimony regarding the issue of domicile:
‘Mr Mgxaji: Where do you reside?
Witness: I reside in Xongxo [Ngqungqu] administrative area in Mqanduli.
Mr Mgxaji: Where are you employed?
Witness: I am employed as a member of Parliament in Cape Town.
Mr Mgxaji: And it is correct that in between your being in Cape Town and [Ngqungqu] you
stay in Cape Town?
Witness: Yes, when Parliament is in session I stay in Cape Town, when it is not, I stay in
Mqanduli
Mr Mgxaji: Is it correct that in this divorce action you are suing the defendant who is Bukelwa
Nolizwe Holomisa?
Witness: That is correct
Mr Mgxaji: Is it correct that you and the defendant married each other on 16 December 1994
out of community of property [and] profit and loss, [and] such marriage [still] subsists?
Witness: That is correct.’
The Court concluded that the above evidence ‘fell far short of establishing that either
he or the respondent was domiciled in the territory of the former Republic of
Transkei’, and that consequently the appellant could not claim that s 39(1) of the
Transkei Act was applicable. On this basis it dismissed the appeal. This appeal is
with the leave of this court.

[5] The appellant contends, correctly, in my view, that the high court erred in
considering the domicile of the parties as this issue was not raised in the appeal and
was common cause between the parties. The respondent, in her counterclaim

admitted that ‘the plaintiff is domiciled within the area of jurisdiction of this court
[regional court]’. Once the high court found that the Extension Act did not alter the
matrimonial regime of parties who married in terms of the Transkei Act after 27 April
1994, it was not necessary for it to deal with any other issue. The evidence by the
appellant – on which the high court based its conclusion – that domicile was not
established, was not led to prove the domicile of either party, but was led to establish
the regional court’s jurisdiction in the divorce proceedings. Counsel for the
respondent properly accepted this in this court.

[6] However, she contended that the issue pertaining to the matrimonial property
regime of the parties had not been properly ventilated in the regional court and urged
this court to refer the matter back to that court so that more evidence could be led on
this aspect. In the alternative, Counsel submitted that s 7(3) of the Divorce Act 70 of
1979 was unconstitutional in that it did not allow the respondent and other vulnerable
women married in terms of the Transkei Act, without an ante-nuptial contract, to seek
a redistribution of the husband’s assets, as was afforded to women married in terms
of s 22(6) of the Black Administration Act 38 of 1927.

[7] The first contention can be disposed of easily on the basis that no purpose will
be achieved by referring the matter to trial: First, the marriage certificate of the parties
– which was not placed before the regional court, and which Counsel agreed would
be placed before the regional court if the matter was referred to it – showed that the
marriage was out of community of property. Second, it is common cause that the
marriage was solemnised in Mqanduli, which is within the territory of the erstwhile
Transkei, and the Transkei Act was applicable at the time of the conclusion of the
marriage. The respondent in her counterclaim agreed that the appellant was
domiciled in that area. A referral of the matter to trial would thus not rescue her case.

[8] The constitutional argument must also fail: It was raised for the first time in this
appeal and it was not traversed at all in the pleadings. A court will not allow a new
point to be raised for the first time on appeal unless it was covered by the pleadings.2

2 Road Accident Fund v Mothupi [2000] ZASCA 27; 2000 (4) SA 38 (SCA); [2000] 3 ALL SA 181 (A)
para 30; Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) para
39.

Secondly, s 39(2)(a) and (b) of the Transkei Act provided that parties who did not
wish to marry out of community of property could make a declaration to that effect,
jointly before a magistrate or a marriage officer at any time before the solemnisation
of the marriage or could conclude an ante-nuptial contract. The respondent did not
make the election and there is no evidence to suggest that she wished to do so but
was unable to. The court cannot make a new contract for the parties3 and is thus
obliged to enforce the terms of their marriage contract. For those reasons the appeal
must succeed. The appellant agreed to forego the costs of the appeal and there will
thus be no costs order against the respondent.

[9] I make the following order:
1 The appeal is upheld.
2 The order of the High Court dismissing the appeal is set aside and in its stead the
following order is substituted:
a) The appeal is upheld and the order of the Regional Court is substituted to the
limited extent that paragraph 4 is deleted;
b) The defendant’s counterclaim is dismissed.

___________________
Z L L Tshiqi
Judge of Appeal

3 Bath v Bath (952/12) [2014] ZASCA 14 (24 March 2014) para 20.

APPEARANCES

For the Appellant:
S Mgxaji
Instructed by:
Mgxaji Incorporated, Mthatha

Matsepe Incorporated, Bloemfontein

For the Respondent:
E Crouse

Mbuyisa Neale Attorneys

Legal Aid South Africa, Bloemfontein