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Barend B.
Barend B., Legal Consultant
Category: South Africa Law
Satisfied Customers: 1356
Experience:  BLC LLB (Pret) LLM (Augsburg)
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My lawyer in Germany has asked me to obtain further

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My lawyer in Germany has asked me to obtain further information in relation to an antenuptial contract signed in South Africa where one of the party's, my wife is a German National. We need to establish the validity of the contract given the fact no translator was provided prior to signing the contract.An excerpt of the email request from my lawyer is below:
.......................................................................................................................................For a better assessment of the chance of the success of contest a claim against Your antenuptial contract , I need some more information.Please contact a lawyer in South Africa to find out , if or in which cases there is an obligation to have an interpreter and a translation of the contract in German ? for a person like Your wife signing an antenuptial in a foreign language in a foreign country.
Are there any court decisions about the legal consequences if the notary didn't follow this obligation ?
Is the whole contract invalid ?

Good morning,

Did your wife request a translator or a translation of the antenuptial contract? Did she indicate at any stage that she does not understand the terms of the contract?

Regards,

BB

Customer: replied 9 months ago.
Thank you for responding back to quickly. No, my now wife did not request a translator at the time. There was a mediation session before the signing and notarization of the contract where the two pre nuptial contracts were explained in fullThere are different options for prenuptial agreements in South Africa, including:
◦Ante nuptial contract with accrual: The parties will list their nett asset values (assets minus liabilities) at the date of marriage and upon divorce or death the nett asset value of each party will be calculated again and the difference between the nett starting values and the nett ending values will reflect each party’s accrual during the marriage. The party with the larger accrual will then have to pay the party with the smaller accrual 50 % of the difference between the accruals.
◦Ante nuptial contract without accrual: This means the parties will never share assets, either before or after the marriage.The Ante nuptial contract without accrual is the contract that was signed.The notary said at the time that "she would get something i.e. child support, and spousal support" and she replied that "I trust my "husband". So this is a grey area, as I am not entirely convinced the completely understood the contract in its entirety.
She did however understand that this was a pre nup contract, and at the time stated that she would not make any claim on my assets i.e. the house that was bought from the inheritance from my father prior to us getting married. The difficulty is that divorce proceedings will be in Germany, under German law and the concern is how the contract will be interpreted and whether the contract is valid in Germany or not. My lawyer did say that the South African law and the German law was similar in this regard.We are looking for South African Case law to strengthen the validity of the contract as per the original question posted.Please excuse the ramble.

Good morning,

Was the case law provided in the original answer not sufficient?

The citation from R H Christie & G B Bradfield Christie’s the Law of Contract in South Africa (2011) 6 ed at 329-330 as indicated in the original answer is clear that if a party does not understand the language it is his/her duty to indicate such and make an attempt to have the contract translated, even if such an attempt was simply telling you that she does not understand it.

‘However material the mistake, the mistaken party will not be able to escape from the contract if his mistake was due to his own fault. This principle will apply whether his fault lies in not carrying out the reasonably necessary investigations before committing himself to the contract, that is, failing to do his homework; in not bothering to read the contract before signing; in carelessly misreading one of the terms; in not bothering to have the contract explained to him in a language he can understand; in misinterpreting a clear and unambiguous term, and in fact in any circumstances in which the mistake is due to his own carelessness or inattention, . . . ’

(my emphasis)

There is only an obligation to have an interpreter when one party indicates that he/she does not understand the language. In South Africa there are 9 official languages. An interpreter is usually required when a party indicates in court proceedings that he can't speak English. But the situation is a bit different in Contract Law because to conclude a contract is a voluntary act. And when you conclude a contract you must indicate you don't understand the contract, otherwise the citation from Christie's The Law of Contract in South Africa will apply.

In terms of the common law principle caveat subscriptor, when an agreement is reduced to writing and signed by the parties, they are bound to its terms as signature signifies assent thereto. Once the contract has been signed, she can't afterwards claim she didn't understand it.

I could not find any case law that places an obligation to have an interpreter translating the terms and provisions of the contract.

Regards,

BB

Customer: replied 9 months ago.
Thank you for reconfirming your previous response, much appreciated. This will greatly assist my lawyer in Munich who is not fully up-to-speed with South African Law.

Good morning,

It's my pleasure. Kindly be so kind to rate my answer.

Regards,

BB

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