IRM 1501
INTRODUCTION TO RESEARCH FOR LAW
AND CRIMINAL JUSTICE
2022
ASSIGNMENT 2 / SEMESTER 1
Written by
Camecia Cass
BUY ME TO VIEW THE REST OF THE ANSWER
Question:
Find and summarise the case of Mans v
Mans (CCT 95/19) [2020] ZACC 09 by
highlighting the facts of the case, legal
question, the reasons for the decisions or ratio decidendi and the
final decision of the court.
Total = 20 Marks
1
, Mans v Mans (CCT 95/19) [2020] ZACC
Facts of the case
The issue here is married people's contractual freedom. The primary question is
whether a contract entered into between married people that differs from the terms
of their prenuptial agreement may be regarded lawful and enforceable. The
legitimacy and enforceability of a postnuptial agreement entered into by the parties
during their marriage without judicial supervision, which the applicant wanted in
order to "allay her fears of insecurity in the case of a divorce," was the subject of the
question. Another concern is whether section 21(1) of the Matrimonial Property Act
is properly interpreted (MPA). Another question is whether a correct interpretation of
section 21(1) of the Matrimonial Property Act3 (MPA), which prohibits spouses from
changing their matrimonial property regime without the court's permission,
precludes the enforceability of agreements entered into by spouses (who are
married out of community of property) that were not entered into in anticipation of a
divorce.
Mrs. Mans (the applicant) and Mr. Mans (the respondent) married on August 28,
1993, out of community of property and without the accrual system. The parties
have two children, a son and daughter. The daughter was a minor at the start of the
litigation. During their marriage, the applicant drafted an agreement (the
agreement) that purported to set aside certain terms of the ante nuptial contract and
entitle the applicant to half of the respondent's estate as well as maintenance from
him. The respondent signed the agreement on November 10, 2014, and the parties
continued to live together as husband and wife after that date, according to a
common cause. The respondent did not declare his desire for a divorce until
November 30, 2014.1
The respondent filed for divorce in Mpumalanga's Regional Court (Regional Court). 2
The applicant filed a counterclaim, requesting, among other things, a declaration
that the agreement was valid and binding, and signed in settlement of all claims or
disputes arising from the divorce action. The Regional Court dismissed the
applicant's counterclaim.3 It held that the agreement wasn't made in anticipation of a
divorce and that allowing parties to opt out of their marital regime without the
mechanism provided for in section 21(1) of the MPA would be against the law and
public policy.
The Regional Court issued a divorce decree. The applicant sought leave to appeal
from the High Court, Gauteng Division, Pretoria (High Court). The appeal upheld by
the High Court overturned the Regional Court's decision. It held that the agreement
reached was enforceable because it was in anticipation of a divorce and it aimed to
serve as a settlement agreement.
1
Mans v Mans (CCT 95/19) [2020] ZACC 09 at para. 6.
2
Heinrich Mans v Anita Mans, unreported judgment of the Regional Court for the Regional Division of
Mpumalanga, Case No MRCD33/15 (27 July 2016) (Regional Court judgment) at para 1.
3
Mans v Mans (CCT 95/19) [2020] ZACC 09 at para. 11.
2
INTRODUCTION TO RESEARCH FOR LAW
AND CRIMINAL JUSTICE
2022
ASSIGNMENT 2 / SEMESTER 1
Written by
Camecia Cass
BUY ME TO VIEW THE REST OF THE ANSWER
Question:
Find and summarise the case of Mans v
Mans (CCT 95/19) [2020] ZACC 09 by
highlighting the facts of the case, legal
question, the reasons for the decisions or ratio decidendi and the
final decision of the court.
Total = 20 Marks
1
, Mans v Mans (CCT 95/19) [2020] ZACC
Facts of the case
The issue here is married people's contractual freedom. The primary question is
whether a contract entered into between married people that differs from the terms
of their prenuptial agreement may be regarded lawful and enforceable. The
legitimacy and enforceability of a postnuptial agreement entered into by the parties
during their marriage without judicial supervision, which the applicant wanted in
order to "allay her fears of insecurity in the case of a divorce," was the subject of the
question. Another concern is whether section 21(1) of the Matrimonial Property Act
is properly interpreted (MPA). Another question is whether a correct interpretation of
section 21(1) of the Matrimonial Property Act3 (MPA), which prohibits spouses from
changing their matrimonial property regime without the court's permission,
precludes the enforceability of agreements entered into by spouses (who are
married out of community of property) that were not entered into in anticipation of a
divorce.
Mrs. Mans (the applicant) and Mr. Mans (the respondent) married on August 28,
1993, out of community of property and without the accrual system. The parties
have two children, a son and daughter. The daughter was a minor at the start of the
litigation. During their marriage, the applicant drafted an agreement (the
agreement) that purported to set aside certain terms of the ante nuptial contract and
entitle the applicant to half of the respondent's estate as well as maintenance from
him. The respondent signed the agreement on November 10, 2014, and the parties
continued to live together as husband and wife after that date, according to a
common cause. The respondent did not declare his desire for a divorce until
November 30, 2014.1
The respondent filed for divorce in Mpumalanga's Regional Court (Regional Court). 2
The applicant filed a counterclaim, requesting, among other things, a declaration
that the agreement was valid and binding, and signed in settlement of all claims or
disputes arising from the divorce action. The Regional Court dismissed the
applicant's counterclaim.3 It held that the agreement wasn't made in anticipation of a
divorce and that allowing parties to opt out of their marital regime without the
mechanism provided for in section 21(1) of the MPA would be against the law and
public policy.
The Regional Court issued a divorce decree. The applicant sought leave to appeal
from the High Court, Gauteng Division, Pretoria (High Court). The appeal upheld by
the High Court overturned the Regional Court's decision. It held that the agreement
reached was enforceable because it was in anticipation of a divorce and it aimed to
serve as a settlement agreement.
1
Mans v Mans (CCT 95/19) [2020] ZACC 09 at para. 6.
2
Heinrich Mans v Anita Mans, unreported judgment of the Regional Court for the Regional Division of
Mpumalanga, Case No MRCD33/15 (27 July 2016) (Regional Court judgment) at para 1.
3
Mans v Mans (CCT 95/19) [2020] ZACC 09 at para. 11.
2
