'n Leë dop is soms beter as 'n halwe eier / An empty shell is sometimes better than half an egg – Gounden v Master of the High Court [2015] JOL 32896 (KZD) and Govender v Gounden 2019 2 SA 262 (KZN)

Abstract

The KwaZulu-Natal High Court, Durban, recently had the opportunity to interpret section 15(3)(b)(iii) of the Matrimonial Property Act 88 of 1984 within the context of the South African law of succession. This section states that: "A spouse shall not without the consent of the other spouse … receive any money due or accruing to that other spouse or the joint estate by way of … inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse." The question before the court was whether a person who is married in community of property requires the consent of his or her spouse in order to repudiate an intestate inheritance. The following aspects were considered by both the court a quo (Gounden v Master of the High Court [2015] JOL 32896 (KZD)) as well as the full bench on appeal (Govender v Gounden 2019 2 SA 262 (KZN)): the distinction between dies cedit and dies venit; the importance of this distinction in electing to either adiate or to repudiate an inheritance; and the implications for the joint estate of spouses married in community of property. The purpose of this contribution is to analyse and critically discuss the reasoning in the judgments in relation to these three aspects.