“My husband and I are in the process of divorce. We are married in community of property and as a result one of the aspects that needs to be adjudicated upon is the division of the joint estate. Currently we are at loggerheads pertaining to the division of the joint estate as we cannot agree if the money received by me from the Road accident fund as compensation for an injury sustain in a motor vehicle accident falls within the joint estate and should be divided.”

In order to answer this conundrum above, we will have to start with the Act and particularly the interpretation of Section 18 (a) thereof. There after I will deal with a recent judgment being Lonwabo Hlakanyane v Ziyanda Hlakanyane[1] in which this question was asked and answered.

Section 18 of the Act states:

“Certain damages excluded from community and recoverable from other spouse

18 - 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;

Upon the clear reading of the subsection above, protection is given to a spouse who has suffered patrimonial loss/damages as a result of a delict (which includes a motor vehicle collision) in that the cost of damages received does not fall within the joint estate and as such cannot be divided.

The simple answer therefore to the conundrum indicated above is that NO the compensation received from the Road Accident Fund does not fall within the joint estate, HOWEVER!!!

The question posed in the factual example above is silent regarding WHEN this compensation was received. Two distinctions should be drawn, the one where the patrimonial damages/loss were received prior to the marriage and one where the patrimonial damages/loss were during the marriage. The main reason for the distinction is that the party receiving the patrimonial damages/loss only become owner of such amount after receipt thereof.

This distinction was made in the matter Lonwabo Hlakanyane v Ziyanda Hlakanyane, which I intent to discuss hereunder.

In this matter the parties were married in community of property on 22 December 2015. In 2011, Me Hlakanyane was involved in a motor vehicle accident and was awarded non-patrimonial damages in the amount of R800 000.00. She invested an amount of R550 000.00 with Standard Bank in an interest-bearing account.

The issue before the SCA concerned the interpretation and application of Section 18(a) of the act, specifically whether this award formed part of the joint estate.

The majority judgment held that the investment does form part of the communal estate for the purpose of division of the estate and that from the clear reading of section 18 (a) the protection granted by this section ONLY applies to damages recovered during such a marriage.

It did not apply to damages recovered prior to such a marriage, and therefore it did form part of the joint estate.

So in conclusion, whether the amount received from the Road Accident Fund or any damages sustain as a result of a delict falls within the joint estate, will have to be establish from the factual evidence provide i.e. whether the amount of damages received was so received prior to the marriage or within the marriage, if the answer is within then such an amount must be excluded in terms of Section 18 (a) of the Act, but if such is received prior to the marriage this amount will be considered as part of the joint estate.

Reference List:

• Matrimonial Property Act, Act 88 of 1984
• Lonwabo Hlakanyane v Ziyanda Hlakanyane (775/2020) [2021] ZASCA 130 (30 September 2021)