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(5) In what sense does the court's decision in this case differ from the
decisions in Persad v Persad, Toho v Diepmeadow City Council, Moremi v
Moremi and Koza v Koza?
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(1) The plaintiff (husband) and the first defendant (his wife) were married
out of community of property. During the existence of the marriage,
the husband donated a house to his wife which he had bought with his
own money. On their divorce, the husband claimed that the house was
a patrimonial benefit of the marriage which had to be forfeited by her,
while the wife claimed that the house was not a patrimonial benefit of
the marriage.
(2) The court had to decide whether, in terms of section 9(1) of the
Divorce Act 70 of 1979, the house was a patrimonial benefit of the
marriage and thus could be forfeited.
(3) In agreement with the views of most of the Roman-Dutch writers, the
court decided that the patrimonial benefits of a marriage out of
community of property are stipulated on the conclusion of the
marriage in the parties' antenuptial contract. The court further held
that a donation made during the marriage arises from the relationship
between the parties after the conclusion of the marriage and is not
something that arises from the marriage itself. Since the donation of
the house was made during the marriage and not on the conclusion of
the parties' antenuptial contract, the court found that the house was
not a patrimonial benefit of the marriage.
(4) Hahlo is of the opinion that the case was decided incorrectly. He holds
that the word ``marriage'' is ambiguous. It can refer to the ceremony
itself, or the relationship it gives rise to. He argues that the phrase
``benefits of the marriage'' must be interpreted as benefits which are
derived from the marriage as a continual relationship since this is
more in line with the natural meaning of the words. This would mean
that benefits that were acquired during the existence of the marriage
(such as the house in the case under discussion) could also be forfeited.
However, Sinclair and Kaganas are of the opinion that the case was
decided correctly. They argue that in this connection the word
``marriage'' refers to the marital property regime. The implication is
that only those benefits acquired in terms of the marital property
regime can be forfeited.
(5) The court's decision in this case differs from the decision in Persad v
Persad, Toho v Diepmeadow City Council and Moremi v Moremi in the
sense that in these cases the court applied the view that the benefits in
terms of a tenancy, a residential permit and a statutory lease, which
were acquired in the course of the marriage, can be forfeited. Also in
Koza v Koza the court assumed, without deciding the issue, that in a
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