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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 842/2007

DATE HEARD:21/2/08

DATE DELIVERED: 6/3/08

NOT REPORTABLE

In the matter between:

ANDILE GIDEON SISHUBA APPLICANT

and

NOMPUCUKO SKWEYIYA 1^ST RESPONDENT

NOMAWETHU JEAN SISHUBA 2^ND RESPONDENT

______________________________________________________________

The applicant purported to sell to his first wife, the first respondent, an immovable property. He did not have the consent of his current wife, the second respondent, with whom he was married in community of property. When she learnt of this, she took steps that put a stop to this purported sale. As the property was still registered in the names of the applicant and the first respondent, from when they had been married to each other in community of property, the applicant required the first respondent to sign the necessary documents to effect transfer of the property to him so that he and his current wife could sell it to buyers they had found. The first respondent refused to co-operate and the applicant applied for an order to compel her to do so. She in turn brought a counter-application for an order declaring that the purported sale of the property to her was valid. She relied on s 15(9) of the Matrimonial Property Act 88 of 1984 which provides, in essence, that where, inter alia, immovable property is alienated without the consent of one of the spouses to a marriage in community of property, the usual consequence of invalidity does not apply, but that consent is deemed to have been given if the third party ‘does not know and cannot reasonably know that the transaction is being entered into’ without that consent. The court held that this provision placed an onus on the first respondent to prove the necessary requirements and that the enquiry was an objective one. The first respondent did not discharge this onus. The main application was granted, the principal relief claimed in the counter-application was refused, the applicant was ordered to pay the first respondent an amount, which he had tendered, to reimburse her for contributions she had made towards the bond repayments for the property, and the first respondent was ordered to pay the costs of the applicant in the main application and the counter-application, and of the second respondent in the counter-application.

JUDGMENT

PLASKET J

[1] The applicant and the first respondent were married to each other in community of property. They were joint owners of erf 3657 situated at 60 Kei Cresent, Komani Park, Queenstown (the property). When they were divorced on 2 June 2001, a consent paper, which was made an order of the Southern Divorce Court, provided that the applicant would ‘retain’ the property ‘as his sole and absolute property’. The title deed was never amended to reflect that the first respondent ceased to be a joint owner of the property.

[2] The applicant duly married the second respondent. This was also a marriage in community of property. When this marriage was on the verge of dissolution, the applicant tried to dispose of the property without the knowledge or consent of his wife.

[3] The applicant first attempted to sell the property to a couple by the name of Mahlombe. After the deed of sale had been signed, the applicant was advised by his attorneys that ‘as the property was registered in my and my ex-wife’s name, it would be necessary for her as joint owner of the property to sign all documentation’. When he approached the first respondent in this regard, she refused to consent to the sale. At much the same time, the second respondent found out that the applicant had been trying to sell the property behind her back. She put a stop to the attempt to sell the property to the Mahlombes.

[4] This did not stop the applicant for long. He then entered negotiations to sell the property to the first respondent. They consulted an attorney who, according to the applicant, ‘advised that instead of effecting a sale of the immovable property, it would be easier if the consent paper was amended to reflect that the respondent would retain the immovable property and would pay to me an amount in consideration therefore’.

[5] To this end, they signed a document entitled ‘Addendum to Consent Paper’ on 20 April 2005. (I shall refer to it as ‘the addendum’.) This document records that the parties wished to amend the consent paper that had been made an order in their divorce and then stated:

‘RE: PARA 5 PROPRIETARY RIGHTS

The defendant shall retain as her sole and absolute property the immovable property commonly known as:

60 Kei Crescent, Komani Park, Queenstown (erf 3657 Queenstown), situated in the Lukhanji Municipality, Division of Queenstown, Province of the Eastern Cape

and shall make payment to the plaintiff, on registration of transfer, [of] the sum of R130 000.00.’

[6] The applicant stated that in addition to the purchase price of R130 000.00 mentioned in the document, the first respondent had agreed to pay an additional amount of R50 000.00 ‘which, for reasons known to herself, were not to be reflected in any agreement’.

[7] Before the property could be transferred, the second respondent learnt of the applicant’s and the first respondent’s scheme. She launched an application against both of them in the Southern Divorce Court to interdict them from transferring the property and for a declarator that she and the applicant were joint owners of the property.

[8] The applicant did not oppose this application but the first respondent did. The applicant states that although the application was withdrawn with the second respondent tendering the first respondent’s costs, it succeeded in stopping the proposed transaction.

[9] Having eventually – and belatedly – come to realize that he would not be able to sell the property without the second respondent’s consent – ‘seeing as the property falls into the communal estate and she is an owner of an undivided half share of the property’ – the applicant changed tack. He and the second respondent decided to sell the property to a couple by the name of Mgudlwa. They entered into a deed of sale to this effect but encountered a further problem.

[10] The property was still registered in the name of the applicant and the first respondent, and she steadfastly refused to sign the necessary documents to enable the conveyanceing attorneys to transfer the property in accordance with the deed of sale.

[11] As a result of this impasse, the applicant launched these proceedings. He claimed an order, inter alia, directing the first respondent to sign the necessary documents. The first respondent opposed the application and has brought a counter-application – in which the second respondent was joined – and in which she seeks, inter alia, a declarator that the addendum is ‘valid’. In the alternative, she seeks an order directing the applicant to pay an amount of R48 290.92 ‘plus all such other additional amounts as the respondent shall have paid towards bond repayments as at the date of this order’ in respect of the property.

[12] The applicant has admitted that the first respondent has been paying the bond and he tenders an amount to reimburse her. For the rest, both he and the second respondent oppose the counter-application.

[13] Two crisp issues arise from these facts. The first is whether the addendum is a valid deed of alienation for purposes of the Alienation of Land Act 68 of 1981. The second is whether the second respondent’s consent to the alienation embodied in the addendum must be deemed to have been given in accordance with s 15(9)(a) of the Matrimonial Property Act 88 of 1984.

[14] On account of the view I take on the second issue, it is not necessary to deal with the first issue. I shall assume in favour of the first respondent, without deciding, that the addendum is a deed of alienation for purposed of the Alienation of Land Act.

[15] Section 15(2)(a) of the Matrimonial Property Act provides that a spouse ‘shall not without the written consent of the other spouse … alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate’. Section 15(5) states that the consent contemplated by, inter alia, s 15(2)(a) ‘shall be given separately in respect of each act and shall be attested by two competent witnesses’.

[16] Section 15(9) reads as follows:

‘When a spouse enters into a transaction with a person contrary to the provisions of subsection (2) or (3) of this section, or an order under section 16(2), and –

1. that person does not know and cannot reasonably know that the transaction is being entered into contrary to those provisions or that order, it is deemed that the transaction concerned has been entered into with the consent required in terms of the said subsection (2) or (3), or while the power concerned of the spouse has not been suspended, as the case may be;

2. that spouse knows or ought reasonably to know that he well probably not obtain the consent required in terms of the said subsection (2) or (3), or that the power concerned has been suspended, as the case may be, and the joint estate suffers a loss as a result of that transaction, an adjustment shall be effected in favour of the other spouse upon the division of the joint estate,’

[17] These provisions seek to regulate marriages in community of property after the abolition of marital power.¹ They must be interpreted and applied within this context – one in which ‘the restrictions which the marital power places on the capacity of a wife to contract and to litigate’ have been abolished;² in which ‘a wife in a marriage in community of property has the same powers with regard to the disposal of the assets of the joint estate, the contracting of debts that lie against the joint estate, and the management of the joint estate as those which a husband in such a marriage had immediately before the commencement of this Act’;³ and in which proper effect must be given to the fundamental right of everyone to equality before the law and the equal protection and benefit of the law.⁴

[18] Section 15(9) is an attempt by the legislature to address the competing interests of spouses who have had assets sold by their partners without their consent, on one hand, and innocent purchasers. It seeks to strike that balance – but has been criticised for not protecting innocent spouses sufficiently⁵ -- by requiring that a purchaser, for his or her interests to trump those of the innocent spouse, must prove that he or she did not know and could not reasonably have known that the consent of the innocent spouse was lacking. If this is proved, then the innocent spouse is deemed to have consented and his or her remedy for any loss suffered as a result is an adjustment in his or her favour when (and if) the joint estate is divided.

[19] If s 15(9) has no application on the facts, then it is clear that the addendum will not be enforceable. Bopape and another v Moloto⁶ is a matter in which a spouse made donations to his lover without the consent of his wife, in conflict with s 15(3)(c) of the Act, a provision that is worded essentially similarly to s 15(2)(a). It was argued that the aggrieved wife was restricted to the remedy provided for in s 15(9)(b) and that the donation could not be reversed. Maritz J rejected this argument. He held:⁷

‘To accomplish a lawful donation or an alienation without value, the consent of both spouses is required. When it is clear that such consent is absent, the alienation cannot be lawful. In my view it follows of necessity that such alienation is void.’

[20] Section 15(2), like s 15(3), is framed in peremptory terms, a point made by Maritz J in relation to s 15(3).⁸ Maritz J’s conclusion is in harmony with what Innes CJ described as a ‘fundamental principle of our law’ in Schierhout v Minister of Justice⁹ that ‘a thing done contrary to the direct prohibition of the law is void and of no effect’. On the basis of these authorities, I conclude that, unless s 15(9) may be successfully invoked by the first respondent, the addendum is void for want of the second respondent’s consent.¹⁰

[21] In Distillers Corporation Ltd v Modise,¹¹ a case involving s 15(2)(h) of the Act which provided in identical terms to s 15(2)(a) that a spouse could not, without the written consent of the other spouse, bind himself as surety, Van Coppenhagen J considered the application of s 15(9). He held that the onus of establishing the requirements of s 15(9)(a) rests on the party seeking to rely on it.¹² He held further that if this party did not actually know that the innocent spouse had not consented, the second leg of s 15(9)(a), that he or she ‘cannot reasonably know’, involves an objective enquiry. He held:¹³

‘Die woord “redelikerwys”, is aanduidend dat as toetssteen by die toegedigte kennis “redelikheid” geverg word, ‘n toets is wat objektief is … .Implisiet in die begrip redelikheid is dat die aangeleentheid oorweeg moet word soos wat die redelike man dit sal doen en dan tot die gevolgtrekking te kom waartoe die redelike man sou geraak het.’

[22] As with the learned judge’s conclusion on the onus, I am in respectful agreement with him as to the objective nature of the enquiry into whether the first respondent could not reasonably have known that the applicant did not have the second respondent’s consent to alienate the property in terms of the addendum. One further aspect requires mention. It is that, in my view, s 15(9)(a) places an obligation on a third party wishing to rely on it to make enquiries. He or she must ‘take reasonable steps to ascertain whether the person with whom he or she is dealing is married and, if so, whether they have obtained whatever consent may be necessary for the particular transaction’.¹⁴

[23] I turn now to the first respondent’s affidavit. The highpoint of her evidence was that she was not a party to the applicant’s devious scheme to alienate the property without the knowledge of the second respondent. From this fact, which amounts to an assertion that, in her dealings with the applicant, she was not mala fide, she concluded as follows:

‘Consequently, I did not know and could not reasonably know that the applicant’s transaction of entering into the addendum to the consent paper with me was being entered into contrary to the provisions of section 15(2) of the Matrimonial Property Act … .’

[24] This goes no further than assert that she had no actual knowledge, an assertion that is conceded by the applicant. It does not address the second aspect of the enquiry, namely whether she could not reasonably have known that the second respondent had not consented. On this issue, her affidavit is silent.

[25] The first respondent knew, from as early as October 2004, at least, that the applicant and the second respondent were married. She stated that it was about then that the applicant informed her that ‘he could no longer afford to pay the bond instalments and that his wife could not either …’. Having herself been married to the applicant in community of property, she must have believed – and a reasonable person in her position would have believed -- that it was likely that the applicant and the second respondent were also married in community of property. Nowhere in her affidavit does she say whether or not she knew that the applicant and the second respondent were married in community of property. She does not allege that the applicant misled her in any way by misrepresenting, or creating the impression, that he had the second respondent’s consent, and the first respondent does not state whether she made any attempts to ascertain whether he had consent. In all of these circumstances, her silence is telling. She did not discharge the onus resting on her to prove that she could not reasonably have known that the applicant did not have the necessary consent.

[26] That being so, s 15(9) of the Act does not apply and the addendum does not create a valid alienation of the property from the applicant to the first respondent. The main application must therefore succeed, although I intend granting relief that differs slightly from what was applied for. The bulk of the counter-application must fail, although I shall make an order to give effect to the applicant’s tender to reimburse the first respondent for her contributions towards the payment of the bond. I requested the parties to calculate the updated amount owed. I have been informed subsequently that the amount, calculated to the end of February 2008, is R 45 919.35.

[27] In my view, as the applicant has been successful in the main application and substantially successful in the counter-application (and no prior demand was made of him to pay what he has tendered), and the second respondent has succeeded in the counter- application, costs should follow the result.

[28] The following order is made in the main application and the counter-application:

(a) The first respondent is ordered to sign, on demand, such documentation as may be required by the applicant’s attorneys, Wheeldon, Rushmere and Cole, in order to facilitate the registration of transfer of erf 3657 situate at 60 Kei Crescent, Komani Park, Queenstown (the property).

(b) In the event of the first respondent failing to sign the documentation contemplated in paragraph (a) above, the Sheriff of this Court is hereby authorised and directed to sign such documentation as may be required by Wheeldon, Rushmere and Cole to facilitate the registration of transfer of the property.

(c) Prayers 1 and 2 of the first respondent’s counter-application are dismissed.

(d) The applicant is directed to pay to the first respondent the amount of R45 919.35, being the amount that the first respondent has contributed towards the bond repayments of the property, and to make that payment within two months of the date of this order.

(e) The first respondent is ordered to pay:

(i) The applicant’s costs in both the main application and the counter-application; and

(ii) the second respondent’s costs in the counter-application.

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C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES

For the applicant: Mr J.R. Koekemoer, instructed by Bekker and Mostert, Queenstown and Wheeldon, Rushmere and Cole, Grahamstown

For the first respondent: Mr T.M. Ntsaluba, instructed by Mlonyeni and Lesele Inc, Grahamstown

For the second respondent: Mr S. Rugunanan, instructed by Nolte, Smit, Grahamstown

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