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[2018] ZAWCHC 18
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Broodie NO v Maposa and Others (1990/2017) [2018] ZAWCHC 18; 2018 (3) SA 129 (WCC); [2018] 2 All SA 364 (WCC) (19 February 2018)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
No: 1990/2017
Before: The Hon. Mr Justice Binns-Ward
Hearing: 7 and 12 December 2017
Judgment:
19 February 2018
In
the matter between:
EPHENIA
MOGOGODI BROODIE
N.O.
Applicant
(In
her capacity as the executrix of the estate of the
late
SAMUEL BROODIE appointed by the Master
of
the High Court, Johannesburg under ref. no. 904/17)
and
KGOMOTSO
COMFORT MAPOSA (neé
LEDWABA)
First
Respondent
KGOTHATSO
THEODOR
LEDWABA
Second
Respondent
MOKGOHU
MARTHA
LEDWABA
Third
Respondent
SEEPUNT
EIENDOMME
CC
Fourth
Respondent
THE
REGISTRAR OF DEEDS, CAPE
TOWN
Fifth
Respondent
THE
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION
Sixth
Respondent
JUDGMENT
BINNS-WARD J:
Introduction
[1]
The applicant is the widow of the late
Samuel Broodie, to whom I shall refer as ‘the deceased’.
They were married to
each other on 26 April 1967. The
marriage was in community of property, in terms of s 22(6) of
the Black Administration
Act 38 of 1927. The deceased died
intestate on 4 December 2016. By letters of executorship
granted by the Assistant
Master of the High Court, Johannesburg, on
18 January 2017, the applicant was appointed as the executrix of the
joint estate of
herself and the deceased. In that capacity she
instituted the current application on Friday, 3 February 2017.
[2]
The applicant sought an order that the
registered transfer by the deceased, on 12 May 2014, of a 25 per
cent member’s
interest in Seepunt Eiendomme CC (‘the
close corporation’) to each of the first, second and third
respondents, respectively,
be declared unlawful and void, together
with an order interdicting those respondents from alienating or
encumbering their registered
interests in the close corporation
pending the determination of the application for the declaratory
relief. An interdict
pendente lite
in similar terms was also sought against the close corporation itself
(which was cited as the fourth respondent). Costs were
sought
against the first, second and third respondents on the
attorney-client scale.
[3]
The third respondent is a woman with whom
the deceased had a longstanding extramarital relationship that
commenced in or about 1986
and continued until his death. The
deceased even went through the rites of a customary marriage with the
first respondent
in 1988. It was common ground at the hearing
that the putative customary marriage between the deceased and the
third respondent
was legally invalid by virtue of his pre-existing
civil marriage with the applicant. Two children were born of
the relationship
between the deceased and the third respondent.
They have both since reached adulthood. They were joined in the
proceedings
as the first and second respondents, respectively.
[4]
The close corporation has at all material
times been the registered owner of fixed property in Regent Road, Sea
Point, on which
stands a building that is let out to various tenants
for mixed commercial and residential purposes. The deceased was
the
only registered member of the close corporation during the period
2001 to 12 May 2014. As he was based in Gauteng,
the
deceased entrusted the administration of the close corporation’s
affairs during most of that period to a firm of attorneys
in Cape
Town. An attorney, Mr Meyer de Waal, and a secretary, Ms Heila
du Toit, were the persons at the firm most closely
involved in
dealing with the close corporation’s business on the deceased’s
behalf. Mr de Waal’s mandate
was terminated in May 2012.
It is apparent from the correspondence exchanged at that time
and the fact that she had
accompanied the deceased to a meeting
concerning the close corporation’s affairs at the attorneys’
offices on 17 May
2012 that the third respondent had by that
stage become closely involved in the management of the deceased’s
interest in
the corporation.
[5]
On 12 May 2014, a 25 per cent member’s
interest in the close corporation was registered in the names of each
of the first
to third respondents. The deceased remained as the
registered holder of the residual member’s interest, with the
result
that from that date each of the four of them held an equal
registered holding in the close corporation.
[6]
The
application to have the registration of the transfer of the member’s
interest in the close corporation to the first, second
and third
respondents set aside is advanced on three grounds. The
applicant contends that the transfer was invalid because
- (i) it
occurred without her consent, and thus in breach of sub-secs 15(2)
and/or (3) of the Matrimonial Property Act
88 of 1984; (ii) it
had been fraudulently procured by the third respondent;
[1]
and (iii) the deceased had lacked the necessary mental capacity
to appreciate the nature of his actions when the transfer
was
effected.
History
of the litigation to date
[7]
The application for the interim
interdictory relief was set down for hearing as an urgent matter on
Monday, 6 February 2017.
[8]
An order was taken by agreement before Van
Staden AJ on 6 February 2017 postponing the hearing of the
application for
the declaratory relief to 24 April 2017, with
directions on the exchange of papers and heads of argument. The
agreed
order also incorporated interim interdictory relief
substantially in accordance with the notice of motion. The
directions
recorded the applicant’s intention to supplement her
founding papers on or before 24 February 2017, noted that the
first
to fourth respondents did not concede her entitlement to do so,
and indicated that the applicant would therefore seek the required
leave. The direction that the respondents would deliver their
answering papers by 17 March 2017 carried the implication
that
the respondents might respond provisionally to any material in the
supplementary founding affidavits contingently on the admission
of
such affidavits with their agreement, or notwithstanding their
opposition. Costs of the proceedings on 6 February
2017
were stood over for later determination.
[9]
The applicant did not comply with the
timetable incorporated in the directions given on 6 February
2017. She applied
for the introduction of her supplementary
affidavit (
jurat
8 March 2017) in terms of an application that was delivered on
9 March 2017. The respondents’ answering papers
were
delivered on 31 March 2017.
[10]
The application was not heard on 24 April
2017, as the applicant wished to file a set of replying papers.
An order by
agreement was taken from the Judge President further
postponing the matter to 28 June 2017. The applicant was
directed
to file her replying affidavits by 12 May 2017.
The costs of the proceedings on 24 April were also stood over
for
later determination.
[11]
In the event, the applicant’s
replying papers were delivered only on 8 June 2017. The
hearing of the application
was thereafter further postponed to
22 August 2017 in terms of an order taken by agreement before
Dlodlo J on 21 June
2017. The costs occasioned by
that postponement were also stood over for later determination.
[12]
On 28 June 2017, the first to third
respondents gave notice of their intention to apply at the hearing on
22 August to
strike out various parts of the applicant’s
replying affidavits, including those parts that cross-referenced to
the applicant’s
supplementary founding affidavit,
jurat
8 March 2017, which, the notice to strike out noted, had not
(yet) been admitted by the court.
[13]
By notice dated 8 August 2017, the
applicant indicated her intention to apply at the hearing of the
application on 22 August
for the admission of a further replying
affidavit by herself,
jurat
10 August 2017.
[14]
The
hearing of the application did not proceed on 22 August,
however. The matter was further postponed for hearing on
24 October 2017, with the respondents being given until
22 September to deliver any responses they might wish to the
aforementioned supplementary founding and replying affidavits
delivered by the applicant. The costs incurred in respect of
the abortive set down of the matter for hearing on 22 August
were stood over for later determination. (The applicant
contended in written argument that the terms of the order made in
August impliedly admitted her aforementioned supplementary
affidavits.
The order was taken by agreement. The
respondents, however, contended that the provision in it for the
delivery of responses
had been merely to facilitate the hearing of
the matter without further delay should the court decide in October
to admit the applicant’s
supplementary affidavits. At the
hearing before me the applicant’s counsel did not seem to
persist with the contention
advanced in the heads of argument, and
appeared, advisedly so in my view, to accept that the admission of
those affidavits still
had to be decided.)
[15]
The applicant had in the meantime brought
an application under the same case number as the current matter for
an order directing
the respondents to produce certain of the close
corporation’s financial documentation and to provide an
accounting in respect
of the corporation’s business from
1 March 2012. An order was also sought placing the
corporation under the management
of an independent third party
pending the hearing of the main application. That application
was determined by Hlophe JP
on 5 September 2017, and
appears to have taken on a life of its own with the subsequent
delivery by the respondents of an
application for leave to appeal.
Leave to appeal was refused on 26 October. The only
reason for referring to the
application decided by Hlophe JP is
because the costs of the proceedings before the Judge President on
5 September 2017
were stood over for determination in the
current proceedings.
[16]
In what by then had become typical of the
conduct of the main application, papers were not delivered in
accordance with the timetable
fixed in terms of the order postponing
the hearing to 24 October 2017. Presumably in consequence
of that, the hearing
was put off yet again when Dlodlo J made an
order on that date postponing the application
sine
die
. There is no record in the
court file that the registrar issued a copy of the order made on
24 October. The endorsement
by the judge’s registrar
on the file cover suggests that no order was made as to costs.
[17]
The matter was then set down by special
arrangement for hearing on 7 December 2017, when it came up
before me.
[18]
There were a number of preliminary issues
for decision; namely, the respondents’ application for striking
out and the applicant’s
applications to introduce the
aforementioned supplementary founding and replying affidavits.
There was also an issue concerning
the introduction of an affidavit
by an assistant director in the Department of Home Affairs concerning
the matrimonial property
regime of the marriage between the applicant
and the deceased, which the applicant had obtained only during
November 2017.
A copy of the declaration made by the applicant
and the deceased in terms of s 22(6) of Act 38 of 1927
confirming that their
marriage was contracted in community of
property – an issue in contestation in the main application –
was attached
to the affidavit. The respondents had also taken a
point of non-joinder, contending that the applicant was a necessary
party
in her personal capacity.
[19]
The affidavit by the assistant director was
admitted at the beginning of the hearing, against the opposition of
the respondents.
I indicated at the time that my reasons for
admitting the affidavit would be furnished in this judgment.
They follow.
Reasons
for admitting the affidavit of the assistant director: Home Affairs
[20]
The evidence that the applicant and the
deceased had been married in community of property was centrally
relevant, being dispositive
of a contentious question that was
fundamental to the applicant’s standing in respect of the claim
advanced on the basis
of the allegation that the registration of the
member’s interest in the close corporation in the names of the
first to third
respondents had occurred contrary to sub-secs 15(2)
or (3) of the
Matrimonial Property Act. As
mentioned, the
marriage between the applicant and the deceased had been contracted
in terms of the Black Administration Act.
In order for it to be
in community of property, the parties to the marriage would have had
to make a declaration, as contemplated
in terms of s 22(6) of
the Act.
[21]
The record of the declaration made by the
applicant and the deceased was kept by the Department of Home Affairs
as part of the population
register maintained by the Department in
terms of the
Identification Act 68 of 1997
.
[2]
The population register is not accessible to members of the public,
save with the special consent of the Director-General.
[3]
The Department had informed the applicant that it would produce a
certified copy of the declaration only if subpoenaed to do so.
The
applicant accordingly procured the issue and service of a subpoena.
The affidavit by the assistant director was
made in compliance with
the subpoena. It proclaimed itself to be a ‘
Declaration
in terms of Section 212 of the Criminal Procedure Act …,
Section 23
of the
Identification Act … and
Civil Proceedings
Act (Act 25 of 1965 – Sections 18, 19 and 20)
’.
[22]
The respondents’ counsel contended
that the procurement of the subpoena had been an irregular step
because the rules of court
do not make provision for the procurement
of evidence by subpoena in motion proceedings. I agree that it
was irregular in
the circumstances for the applicant to have procured
the issue of the subpoena. Faced with the quandary presented by
the
Department’s position, the applicant should have sought
directions from the court. I have no doubt that had it done
so,
effective directions would have been given to facilitate the
procurement of the evidence. However, in the peculiar
circumstances,
where obtaining the evidence had plainly been in the
interests of justice, as it consisted of officially recorded material
that
was conducive to the proper determination of a fundamental issue
in the case, I considered this to be an instance in which substance
had to prevail over form. I was therefore willing to overlook
the irregularity.
[23]
The admission of the affidavit did not
occasion any cognisable prejudice to the respondents. The
argument that they should
be entitled to interrogate the information
contained in the affidavit was decisively rebutted by the provisions
of
s 23
of the
Identification Act, to
which the deponent
referred. As mentioned, a copy of the declaration in terms of
s 22(6) of Act 38 of 1927 made by the
applicant and the deceased
was attached to the affidavit. The Director-General is
empowered in terms of
s 23(1)
of the
Identification Act to
make
reproductions of any document from which the population register is
compiled.
Section 23(2)
provides: ‘
A
reproduction referred to in subsection (1) shall,
notwithstanding anything to the contrary contained in any other law,
for
all purposes be deemed to be the original document from which it
was reproduced. and
a copy of
such reproduction which has been certified by the Director-General as
a true copy, shall in any court of law be conclusive
proof of the
contents of the relevant original document
’
(underlining supplied).
[4]
[24]
The respondents also objected to the
affidavit on the grounds that the attesting commissioner of oaths’
qualification to commission
the affidavit did not appear on the face
of the document, as required in terms of reg. 4(2) of the Regulations
Governing the Administering
of an Oath or Affirmation.
[5]
I was not persuaded that there was any merit in the point.
[25]
The commissioner’s full names and
business address were printed below his signature. The
endorsement by the attesting
commissioner also indicated that he was
a ‘director’. In the context of the document read
as a whole, it was
discernible from his address that the
commissioner’s position as a director was in the Department of
Home Affairs at its
head office. All officers in the
administrative, professional, clerical, technical or General A and
General B Divisions of
the Public Service occupying a post with a
salary scale the minimum notch of which is equivalent to or higher
than the minimum
notch of salary level 2 applicable in the
Public Service have been appointed as commissioners of oaths
ex
officio
.
[6]
There are 16 salary levels in the Public Service.
[7]
The top four levels (levels 13-16) apply in respect of the senior
management service. It is common knowledge that the
most senior
ranks in the Public Service comprise of the directors-general, deputy
directors-general, chief directors and directors,
or positions with
different appellations having equivalent ranking to one or other of
the aforementioned. The probability
is therefore that the
attesting commissioner of oaths is in the senior management service
and therefore very comfortably above
salary level 2. In
the absence of proof to contrary, I considered this to be a
matter in which the maxim
omnia
praesumuntur rite esse acta
should be
applied.
Non-joinder
[26]
The non-joinder point fell away when Mr
Guldenpfennig
SC,
who (together with Mr
Ferreira
)
appeared for the applicant, placed on record that the applicant would
abide by the judgment of the court in her personal capacity.
(The applicant had sought in any event to advance the case in her
personal capacity in certain sections of the founding papers
in which
she purported to invoke an entitlement under the Maintenance of
Surviving Spouses Act.
[8]
)
Admission
of supplementary founding and further replying affidavits
[27]
It is convenient now to consider the
applicant’s applications for the admission of her supplementary
founding affidavit (
jurat
8 March 2017) and her further replying affidavit,
jurat
10 August 2017. In deciding these matters the court is
called upon to exercise a true discretion on the given facts,
bearing
in mind that the interests of the administration of justice are
ordinarily best served by observance of the rules concerning
the
number of sets and sequence of affidavits in motion proceedings.
That is why the adequacy of the explanation offered
for any deviation
from the rules is always an important consideration. Another
obviously important factor to be weighed is
the prejudice (if any)
that might be occasioned to the other party by the deviation.
As Holmes J held in
Milne NO v Fabric
House (Pty) Ltd
1957 (3) SA 63
(N), at
65, fairness should be done to both sides. In principle I share
the view expressed by Williamson J in
Transvaal
Racing Club v Jockey Club of South Africa
1958 (3) SA 599
(W), at 604A-E, that if there is an explanation that
negatives any suggestion of mala fides or culpable remissness for the
failure
to put the evidence before the court at the earlier stage,
courts should incline towards allowing the affidavits to be filed.
[9]
[28]
The intention to deliver a supplementary
founding affidavit was presaged in the founding affidavit. At
paragraph 17 of the
founding affidavit the applicant explained that,
because of the perceived need for the interim relief sought in the
notice of motion
to be obtained on an urgent basis, she had not had
sufficient opportunity to gather all the evidence she wished to place
before
the court in support of the claim for the setting aside of the
transfer of the member’s interest to the first, second and
third respondents. She was awaiting documents from the close
corporation’s auditors and from the Companies and Intellectual
Property Commission. She indicated that she would wish to
supplement the founding papers ‘in order to file affidavits
dealing with the first to third respondents’ fraud, unlawful
conduct and matters germane thereto’.
[29]
As matters transpired, the applicant was
not able to obtain the documentation that she had hoped to get.
The supplementary
affidavit set out her allegations concerning the
circumstances in which this happened, and included various further
allegations
in support of her allegation that the third respondent
had abused her position to defraud the deceased out of the member’s
interest in the close corporation. It contained nothing of
substance to supplement the case already made out that the applicant
had not consented to the alienation of the member’s interest,
which, as will appear presently, is the only substantive matter
for
determination before me in these proceedings.
[30]
Bearing in mind that there was a two
pronged application before the court – one for interim relief
and the other for final
relief – and that the founding papers
made it clear that the contemplated supplementary papers would canvas
the final relief,
and would be delivered in a manner that would allow
the respondents to answer that part of the application once the
founding papers
were in a complete state, I do not consider that the
principle that an applicant must make its case out before the
respondent is
called upon to answer was substantively detracted
from. A plausible reason for the course adopted by the
applicant had been
set out in the initial founding affidavit.
As it was, the respondents held back from delivering their answering
papers until
the founding papers had been completed. I consider
that the objection to the admission of the supplementary affidavit
was
unduly technical in the circumstances and lacking in substantive
merit. The supplementary affidavit will accordingly be
admitted.
[31]
The first to third respondents treated of
the supplementary founding papers very superficially in the answering
affidavit that was
made on their behalf by the third respondent.
It was asserted that this was done on the basis that they were under
no obligation
to deal with their content before they were admitted.
I do not agree that that was so. In my view it was implicit in
the terms of the order made by Van Staden AJ, to which the
respondents agreed, that they would provisionally deal with the
content
of the supplementary founding papers. Had they
understood that any other course had been intended they could have
been expected
to have delivered their answering papers before the
founding papers were supplemented and to have objected to the
production of
the supplementary papers when they came to hand.
Instead, they took the period of 15 days for the delivery of their
answering
papers from the date of the delivery of the applicants’
supplemented founding papers. It was quite unacceptable for
the
respondents, if they thought they had not been bound to provisionally
answer the supplementary founding papers, to have been
privy to the
matter continuing with further exchanges of paper in terms of a
series of further orders obtained from the court without
having the
issue of the admissibility of the supplemented papers that the court
had provisionally authorised the applicant to deliver
determined
first. The respondents were in any event afforded a further
opportunity to respond to the supplemented founding
papers by the
order, described above, made on 22 August 2017.
[10]
As matters have turned out, the respondents’ failure to engage
in any depth with the supplementary founding papers
did not affect
the determination of the applicant’s case based on
s 15
of
the
Matrimonial Property Act, which
, as will appear, was separated as
the only substantive issue for determination in this stage of the
proceedings. To the extent
necessary, the case based on
allegations of fraud can be fully ventilated in the context of the
directions that will be given if
the applicant’s case based on
the separated issue is dismissed.
[32]
In her further replying affidavit,
jurat
10 August 2017, the applicant responded to the denial by the
respondents of her allegation that she had been married in community
of property by virtue of having made a declaration in terms of
s 22(6) of the Black Administration Act. In paragraph
140
of her answering affidavit the third respondent had averred that she
had been unable ‘to present documentary evidence
in support of
[her] allegations’, and she requested that the question be
referred for determination on oral evidence. The
applicant put
in a copy of her original marriage certificate, which bore a stamp
imprint indicating that the marriage was in community
of property in
terms of 22(6), under the further replying affidavit. She also
explained the complicated bureaucratic process
that she had had to
negotiate to obtain the document. I would have had no
difficulty in admitting the affidavit in the circumstances.
As
it is, the issue has been overtaken by the admission of the affidavit
by the Assistant Director of the Department of Home Affairs
discussed
earlier.
The
respondents’ application to strike out
[33]
The first to third respondents applied to
strike out substantial parts of the applicant’s replying
papers. I do not
intend to traverse that application in
detail. Suffice it to say that a considerable part of the
matter to which objection
was taken concerned the case founded on
allegations of fraud or misappropriation, which, as will appear, were
not dealt with in
the principal hearing before me. I have been
persuaded that only the following parts of the applicant’s
replying papers
should be struck out on the grounds that the content
thereof is inadmissible hearsay or is scandalous, vexatious and/or
irrelevant:
i.
The
following words in para. 89 of the applicant’s replying
affidavit,
jurat
7 June 2017: ‘
and the Third
Respondent did not resign, she was fired by her employer at the time,
I was told
’.
ii.
The
following words in para. 89 of the applicant’s replying
affidavit,
jurat
7 June 2017: ‘
as is all of the
Third Respondent’s evidence. She has specifically lied to
hide her fraud and falsification
’.
iii.
The
entire affidavit of Peter Potjie Ledwaba,
jurat
30 May 2017.
In view of the very limited success that the respondents enjoyed in
their application for striking out and the little time spent
on the
application at the hearing, I shall make no order as to its costs.
Separation
of issues
[34]
At the hearing, the applicant’s
counsel conceded that the allegations of fraud or the alleged mental
incompetence of the deceased
could not be determined without oral
evidence. They requested the court to determine the case based
on the effect of the
Matrimonial Property Act, and
if the applicant
did not succeed on that basis, to refer the other bases for it for
determination on oral evidence. The respondents’
counsel
was content to argue the matter on the narrow basis suggested, but
contended that if the application did not come home
on the statutory
question, it should be dismissed because the contingent request by
the applicant’s counsel for a reference
of the other bases to
oral evidence lacked a proper foundation.
Claim
based on lack of consent in terms of the
Matrimonial Property Act
[35
]
Section
15
of the
Matrimonial Property Act 88 of 1984
provides as follows
insofar as pertinent in the current case:
Powers of spouses
(1) Subject to the provisions of subsections (2), (3)
and (7), a spouse in a marriage in community of property may perform
any juristic
act with regard to the joint estate without the consent
of the other spouse.
(2) Such a spouse shall not without the written consent
of the other spouse-
(a) alienate, mortgage, burden with a servitude or
confer any other real right in any immovable property forming part of
the joint
estate;
(b) enter into any contract for the alienation,
mortgaging, burdening with a servitude or conferring of any other
real right in
immovable property forming part of the joint estate;
(c) alienate, cede or pledge any shares, stock,
debentures, debenture bonds, insurance policies, mortgage bonds,
fixed deposits
or any similar assets, or any investment by or on
behalf of the other spouse in a financial institution, forming part
of the joint
estate;
(d) … ;
(e) … ;
(f) … ;
(g) as a purchaser enter into a contract as defined in
the Alienation of Land Act, 1981 (Act 68 of 1981), and to which the
provisions
of that Act apply;
(h) … .
(3) A spouse shall not without the consent of the other
spouse-
(a) … ;
(b) … ;
(c) donate to another person any asset of the joint
estate or alienate such an asset without value, excluding an asset of
which
the donation or alienation does not and probably will not
unreasonably prejudice the interest of the other spouse in the joint
estate, and which is not contrary to the provisions of subsection (2)
or paragraph (a) of this subsection.
(4) The consent required for the purposes of paragraphs
(b) to (g) of subsection (2), and subsection (3) may, except where it
is
required for the registration of a deed in a deeds registry, also
be given by way of ratification within a reasonable time after
the
act concerned.
(5) The consent required for the performance of the acts
contemplated in paragraphs (a), (b), (f), (g) and (h) of subsection
(2)
shall be given separately in respect of each act and shall be
attested by two competent witnesses.
(6) The provisions of paragraphs (b), (c), (f), (g) and
(h) of subsection (2) do not apply where an act contemplated in those
paragraphs
is performed by a spouse in the ordinary course of his
profession, trade or business.
(7) … .
(8) In determining whether a donation or alienation
contemplated in subsection (3)(c) does not or probably will not
unreasonably
prejudice the interest of the other spouse in the joint
estate, the court shall have regard to the value of the property
donated
or alienated, the reason for the donation or alienation, the
financial and social standing of the spouses, their standard of
living
and any other factor which in the opinion of the court should
be taken into account.
(9) When a spouse enters into a transaction with a
person contrary to the provisions of subsection (2) or (3) of this
section, …
, and-
(a) that person does not know and cannot reasonably know
that the transaction is being entered into contrary to those
provisions
…, it is deemed that the transaction concerned has
been entered into with the consent required in terms of the said
subsection
(2) or (3), …;
(b) that spouse knows or ought reasonably to know that
he will probably not obtain the consent required in terms of the said
subsection
(2) or (3), … , 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.
[36]
The third respondent averred in the first
instance that the member’s interest in the close corporation
had been acquired and
held by the deceased for her and their two
children; in other words, as I understood the argument articulated by
the respondents’
counsel, that the deceased had never been the
beneficial owner of the member’s interest in the close
corporation. However,
insofar as might be held, contrary to
that contention, that the deceased had been the owner, it was
contended that the applicant
had consented to the donation of the
member’s interest to the first to third respondents;
alternatively, that those respondents
did not know and could not
reasonably have known that the deceased had been married in community
of property or that she had not
consented to such donation.
[37]
The third respondent testified that she had
been aware, when she went through the process of contracting a
customary marriage with
the deceased in 1988, that he was already
married to the applicant, but had not given any consideration to the
nature of the preceding
marriage. The applicant called
the third respondent’s claim to have been through any marriage
rites with the
deceased into question. It is indeed peculiar on
the third respondent’s version that she would not have expected
to
be introduced to the deceased’s first wife had she been
properly married under customary law. I do not think, however,
that there is any proper basis to reject her evidence on affidavit
that she went through the formalities of a customary marriage.
As mentioned, the third respondent accepts, in the light of her
subsequent discovery that the marriage between the deceased and
the
applicant was a civil one, that her subsequent putative customary
marriage was invalid.
[38]
There is also no reason to reject the third
respondent’s evidence that the deceased was the father of the
first and second
respondents and had paid for their education at
private schools and university. In the context of the applicant
having elected
to prosecute a claim for final relief on paper, the
court must also accept the third respondent’s evidence about
how the
deceased divided his time between his two family households,
spending approximately half his time living with third respondent in
Dennilton and the other half with the applicant in Shoshanguve, over
the applicant’s testimony that he overnighted in Dennilton
(where he had a business) only once a week, at most. Moreover,
the evidence of Mr de Waal and Ms du Toit (who made
supporting founding affidavits) corroborates the third respondent’s
evidence that she was closely engaged with the deceased’s
proprietary affairs up until at least 2012.
[39]
Against that background, the third
respondent’s evidence that the deceased had informed her that
he would make separate provision
for his two families, and, in that
context, that the Sea Point property was earmarked for his family by
the third respondent, is
by no means inherently improbable, at least
conceptually. Accordingly, whilst its truth might be tested
should the case based
on fraud go to oral evidence, it must be
accepted for the purposes of the determination on the papers of the
case based on the
Matrimonial Property Act.
[40
]
The third respondent’s evidence that
the deceased did not ever hold a beneficial proprietary interest in
the close corporation
is farfetched, however. The notion that
the deceased would hold the registered member’s interest only
nominally but
subject to an agreement that he might have exclusive
and unfettered enjoyment of the income defies credulity. There
could
be no conceivable purpose in the member’s interest being
registered in the name of the deceased in such circumstances if,
as
the third respondent sought to explain, it was subject to the right
of the first, second and third respondents to claim registration
of
their alleged aliquot shares in their own names whenever they
wished. Any such arrangement is also difficult to reconcile
with the deceased’s allegedly agreed exclusive entitlement to
the net profits of the close corporation. It is, furthermore,
completely inconsistent with the deceased’s conduct. If
he were merely the nominal holder of the registered member’s
interest, one would have expected him (and, indeed, the third
respondent) to have communicated that information to the attorneys
appointed to administer the close corporation’s affairs over a
period of nearly 11 years. The deceased’s appropriation
of the profits during the period in which the administering attorneys
kept the close corporation’s financial records shows
that a
considerable portion thereof was paid to the Broodie Family Trust, of
which the applicant and her children are the only
beneficiaries.
The family meetings attended by the first, second and third
respondents and the deceased in January 2014 described
by the third
respondent are also inconsistent with the scheme that the third
respondent claims had been put in place in 2001 before
the deceased
acquired the Sea Point property. The subsequent transfer of 75
per cent, rather than 100 per cent, of the member’s
interest to
the respondents is similarly incongruent. No explanation has
been offered as to why the deceased would have retained
25 per cent
of the member’s interest registered in his own name.
[41]
The third respondent’s evidence
concerning an agreement with the deceased at the time that the
interest in the close corporation
was acquired in the deceased’s
name in 2001 that he would hold it on her behalf is also difficult to
square with the content
of correspondence addressed, ostensibly by
the deceased, but sent from the third respondent’s email
address, to Mr Meyer
de Waal in April 2012, in which
instructions for the transfer of the fixed property into the
deceased’s name were given and
ignorance was expressed that at
the time of acquisition the property had been registered in the name
of a close corporation.
[11]
If the deceased had not appreciated that the property was held
through a close corporation, as the correspondence purports
to
convey, he could hardly have entered into the arrangement with the
third respondent that she has alleged.
[42]
It is not necessary to make a determination
on these questions, however, because an acceptance
ex
hypothesi
of the third respondent’s
claim that she and her children obtained the proprietary interest in
the close corporation in 2001,
in accordance with her version, would
not detract from the notion that its acquisition at that stage would
have been by way of
a donation by the deceased. Moreover, the
donation would have been of the interest in the close corporation;
not
, as
the respondents’ counsel argued, of the funds used to acquire
it. The deceased did not give the respondents the
money to
acquire the member’s interest. He acquired it himself -
not as the respondents’ agent, but, on the respondents’
version, for the purpose of giving it to them.
[43]
In the result, insofar as the case falls to
be decided with reference to the effect of
s 15
of the
Matrimonial Property Act, the
transfer of the registered member’s
interest to the respondent must be treated as a donation within the
meaning of
s 15(3).
[12]
(I think it is clear enough, when one reads the section as a whole,
that the disposition by a spouse of the member’s
interest in a
close corporation for consideration qualifies as an ‘alienation’
governed by
s 15(2)(c)
, whilst a disposal of such an interest
for no consideration would be a ‘donation’ or ‘alienation
without value’
as contemplated by
s 15(3)(c).)
It is
immaterial for the purpose of deciding the case, whether the
disposition occurred in 2001 as the third respondent would
have it,
or in 2014 when the transfer of the member’s interest into the
respondents’ names was registered. There
is nothing on
the papers to suggest that the state of the respondents’
knowledge concerning the legal character of the deceased’s
marriage with the applicant differed in 2014 from what it had been in
2001.
[44]
Mr
van der
Merwe
argued on behalf of the
respondents that the onus was on the applicant to establish that she
had not consented to the donation
and, if she succeeded in doing so,
also to show that the respondents should have known about the
marriage in community of property
and of the absence of her consent
to the donation. These being motion proceedings, determining the
established facts is governed
by the well-known evidentiary rules for
deciding cases on paper.
[13]
Those apply in the same way irrespective of whether the incidence of
the onus is on the applicant or the respondent.
[14]
[45]
In relation to the question whether the
applicant had not consented, the answer must be in the applicant’s
favour unless it
can be said the respondents have raised a genuine
dispute of fact in answer to her averment that she did not. As
to the determination
of the matter raised by the respondents’
reliance on
s 15(9)(a)
, their evidence that they did not know
that the deceased was married to the applicant in community of
property is by no means farfetched
and must therefore be accepted as
a given fact. Whether they could not reasonably have known that
the donation was being
effected contrary to those provisions requires
a ‘juristic evaluation’. The conclusion is one of
law based on
the established facts; cf.
S
v Basson
[2004] ZACC 13
;
2005 (1) SA
171
(CC);
2004 (6) BCLR 620
(CC), at para. 50-53. The incidence
of the onus therefore bears no practical significance.
[46]
The third respondent has not offered any
evidence to directly counter the applicant’s assertion that she
did not consent to
the donation of the member’s interest.
She has, however, pointed to the fact that the documentary records of
the search
conducted by the applicant’s attorneys that
uncovered evidence of the registration of the member’s interest
in the
respondents’ names indicated that the information had
been obtained during June 2016, several months before the deceased’s
death. The third respondent contends that the applicant’s
failure thereafter to immediately contest the legality of
the
transfer supported the inference that she had tacitly consented to,
alternatively, ratified the donation.
[47]
In my judgment the inference that the third
respondent would have the court draw in this regard is not
sustainable. The evidence
makes it clear that the applicant and
her family were disapproving of the deceased’s relationship
with the third respondent,
and hostile to and unaccepting of her and
the first and second respondents. Any supposition that in those
circumstances the
applicant would have consented to a significant
donation by the deceased to the respondents would be farfetched.
The very
fact that the applicant had apparently engaged attorneys to
investigate the member’s interest in the close corporation is
fundamentally irreconcilable with the notion that she had consented
to its alienation. On the respondents’ version,
it would
have been unlikely that the deceased would have sought the
applicant’s consent. They described his conduct
of his
affairs as ‘patriarchal’, implying that he would have
made the decision to give the member’s interest
in the close
corporation without regard to the applicant’s views.
Indeed, a conspectus of the papers suggests that
the deceased kept
his dealings with the affairs of his respective households with the
applicant and the third respondent conspicuously
discrete. In
all these circumstances the applicant’s evidence that she did
not consent to the donation falls to be
accepted.
[48]
The applicant averred that she became aware
of the registration of the member’s interest in the
respondents’ names only
sometime in November 2016. Having
regard to the search undertaken by her attorneys in the middle of the
year, that seems
improbable. It is not, however, necessary to
determine the date on which she obtained the knowledge. I shall
assume
for present purposes that she learned of the facts in late
June 2016, as contended by the respondents. I am not persuaded
that the applicant’s failure to institute proceedings or
protest the transfer of the member’s interest as soon as her
attorneys had confirmed the fact established that she had ratified
the donation. In my view, the provisions of
s 15(4)
of the
Matrimonial Property Act,
>
[15]
which posit that the required consent might be ‘given by way of
ratification within a reasonable time after the act concerned’,
contemplate an express ratification, or conduct unambiguously
indicative of an intention to ratify; not mere passivity in the face
of knowledge of the alienation. One cannot do what is required
to be done within a reasonable time by doing nothing at all,
unless
the particular inaction falls to be assessed in the context of an
obligation, if one is possessed of the relevant facts,
to act within
a given time in the circumstances.
[16]
Implying the requirement of an express act of ratification or conduct
unambiguously indicative of ratification would, moreover,
be
appropriate having regard to the fact that the relevant provisions of
s 15(4)
create an exception to the general rule that an act done
contrary to the law is incapable of ratification.
[49]
In the circumstances of the current case,
accepting, as I do, that the applicant would have been entitled in
her personal capacity
to institute proceedings for the return of the
donated interest in the close corporation to the joint estate,
[17]
she was not obliged to act immediately. The five months that
may have passed between the search of the close corporation’s
public records and the death of the deceased would not have stood in
the way of the applicant to institute recovery proceedings;
her claim
would not have been extinguished by prescription. It is
impossible then to conceive how her mere inactivity during
that
period could, without more, have constituted a ratification of the
donations.
[18]
In short, the established facts do not support a conclusion that the
applicant (in her personal capacity) ratified the acts
of donation by
the deceased.
Section
15(9)(a)
of the
Matrimonial Property Act
[50
]
The findings made thus far bring a
consideration of the respondents’ reliance on
s 15(9)(a)
of the
Matrimonial Property Act to
the fore.
[19]
That provision deems the transaction concerned to have been entered
into with the required consent if the person to whom
the disposition
was made did not know and reasonably could not have known that it was
effected contrary to
s 15(2)
or (3). It has already been
found that the respondents did not know that the applicant and the
deceased were married in community
of property. It is also
apparent that they did not make any enquiries into the matrimonial
property regime of the deceased
and the applicant. The question
is whether they reasonably could not have known that that disposition
was being effected
contrary to
s 15(3).
[51]
The enquiry is an objective one, and falls
to be determined with reference to the knowledge that the reasonable
person in the position
of the respondents would have been expected to
have or have obtained. The determination is not an abstract
exercise.
It takes place with reference to the facts of the
given case. Van Coppenhagen J gave a useful rehearsal
of the
concept of the reasonable person in this context in
Distillers
Corporation Ltd v Modise
[2001] ZAFSHC
2
;
2001 (4) SA 1071
(O) at para. 5. The learned judge
stressed that caution should be exercised by courts not to put the
standard unrealistically
too high. That approach corresponds in
substance, I think, with that reflected in
S
v Bochiris
1988 (1) SA 861
(A), at
865G, where the Appellate Division (per Nicholas AJA), in a
conceptualisation subsequently cited with approval by
the
Constitutional Court,
[20]
described the reasonable man as ‘the embodiment of the social
judgment of the Court, which applies “common morality
and
common sense to the activities of the common man”.’
[52]
The applicant’s counsel argued that
s 15(9)(a)
puts persons in the position of the respondents under
a duty of enquiry. In this regard they placed considerable
emphasis
on certain dicta in the judgment in
Visser
v Hull
[2009] ZAWCHC 77
;
2010 (1) SA
521
(WCC), which, if read in isolation from the facts of that case
and the actually quite narrow basis for the decision in that matter,
might be understood to place quite an onerous duty of enquiry on a
third party in any transaction to which
s 15(2)
and (3) of the
Matrimonial Property Act applies
. In
Visser
,
the ‘guilty’ spouse had, without the knowledge or consent
of his wife, to whom he was married in community of property,
sold
the family home in the village of McGregor to two of his blood
relatives and their spouses. He declared in the transfer
papers
that he was unmarried, but the court held that in a small close knit
community the purchasers could not but have been aware
of the
relationship between the guilty and innocent spouses and of the fact
that the innocent spouse had been living in the property
for many
years and that the couple’s children were raised there.
[53]
A proper reading of the judgment in
Visser
shows that the learned judge (Dlodlo J) accepted that what might
be expected from the outside parties in a transaction affected
by
s 15(2)
or (3) depended on the peculiar circumstances of the
case. So, at para. 11, he held:
The circumstances or the property in question might
sometimes provide an answer. The third person’s special
knowledge concerning
the marital circumstances of the spouse with
whom he contracts, could conceivably also be a factor. Looking at the
circumstances
of this case, it was argued that the third parties had
special knowledge since they were closely related to the deceased
husband
with whom they had contracted for the purchase of the house.
I accept this submission. In my view, the Respondents knew very well
that the transaction was being conducted behind the Applicant’s
back. They connived with the deceased and the purpose was
obviously
to prejudice the Applicant’s interests on this asset of the
joint estate. They did not take any steps at all in
satisfying
themselves about the nature of marriage between the deceased and the
Applicant. It is reasonable to have expected them
even to come and
ask the Applicant and/or any of her children. They could also have
asked the members of the community. McGregor
is a very small place
where everybody knows virtually everything about each other. It was
easy to find out. They never investigated
because they knew that they
were assisting their relative (the deceased) to succeed in
compromising the interests of the Applicant
in this matrimonial
asset.
It is
clear therefore that in
Visser
the court found the outside
parties to have been complicit in the fraudulent conduct of the
seller of property in the joint estate.
A third party in that
position could never hope for protection in terms of
s 15(9)(a)
;
his conduct would be about as far removed from the standard of the
reasonable man as could be imagined.
[54]
Semenya AJ rejected a similar
undiscriminating reliance on
Visser
by the applicant in
M v M and Others
[2015] ZALMPHC 4 (30 November 2015),
[21]
notwithstanding the distinguishable circumstances of the case. In
M
,
the ‘guilty’ spouse sold fixed property to the second
respondent that he had acquired by deed of grant shortly before
his
marriage in community of property to the applicant. The deed of
grant reflected his marital status as single and, when
concluding the
deed of sale, he falsely made a ‘declaration confirming status’
indicating that he was single.
The learned acting judge held
(correctly in my respectful view) that the second respondent, who had
no independent knowledge of
the seller’s circumstances, was
reasonably entitled in that context to accept that he did not require
spousal consent to
conclude the transaction.
[22]
[55]
What might in
Visser
be construed as suggesting that a third party is always under a duty
of independent enquiry into the alienating spouse’s
marital
status, even in the face of representations by the alienating
spouse,
[23]
must be understood in the context of the factual matrix of that
case. As discussed earlier, the facts in
Visser
were such that the purchasers of the family home could not reasonably
have been taken in by the seller’s representation.
Indeed, as also mentioned earlier, the court in
Visser
actually found that the purchasers had been complicit in the
seller-spouse’s dishonesty. Whether a third party may
reasonably rely on the alienating spouse’s representations
concerning his marital status or legal capacity to conclude the
affected transaction will depend on the facts of the given case.
[56]
In
Distillers
Corporation v Modise
supra, the court
held that a third party, which did not have knowledge of the marital
status of the defendant who had bound himself
in its favour as
surety, was entitled to be satisfied on the basis of the
incorporation in the deed of suretyship of a representation
by the
defendant that ‘
Ek/ons verklaar
hiermee dat die waarborgakte deur myself/onsself voltooi is of in ons
teenwoordigheid voltooi is, en dat ek/ons
regtens bevoeg is om dit te
verly
’,
[24]
that the defendant had the legal authority to enter into the
contract. The judgment in
Distillers
Corporation
was subjected to stringent
criticism by the academia in an article by Professor L Steyn
,
When a third party ‘cannot
reasonably know’ that a spouse’s consent to a contract is
lacking
119 (2002) SALJ 253
.
[57]
Professor Steyn expressed the opinion that
the learned judge had misconstrued
s 15(9)(a)
and consequently
placed the bar for third parties to obtain the protection afforded by
the provision too low. In Steyn’s
view, there is always a
duty of enquiry on a third party entering into any transaction of the
nature to which
s 15(2)
and (3) apply. According to Steyn
(at p. 256) –
The word ‘cannot’ in the phrase ‘cannot
reasonably know’, I submit, implies that a duty is cast upon
the
third party to take reasonable steps to investigate whether, in
the circumstances, consent is required and, if so, whether it has
been obtained. This duty was overlooked by the court in the
Distillers Corporation
case.
As already mentioned, according to Van Coppenhagen J's
formulation of the test for liability, the matter must be considered
from
the point of view of a reasonable person and the conclusion must
be arrived at which a reasonable person would have reached (at
1075H–I). This may be correct as far as it goes, but it does
not go far enough. The third party must also take the steps
which a
reasonable person would take to investigate whether consent is
required and, if so, whether it has been obtained. This
is necessary
because the third party must be satisfied that the reasonable person
cannot know that consent is lacking.
Steyn
cites the writings of a number of other academic writers in support
of her thesis that the provision puts a positive duty
of enquiry on
third persons contracting with a ‘spouse’.
Reference to the other sources in fact suggests widespread
uncertainty amongst the writers about the precise import of
s 15(9)(a).
[25]
Professor Steyn herself suggested that its wording might be improved
to promote clarity. It is therefore not
without
significance that the judgment in
Distillers
Corporation
and the criticism it
elicited have not conduced to any amendment of the provision in the
intervening 15 years since her note was
published .
[58]
In my view the criticism of the judgment in
Distillers Corporation
fails to take sufficiently into account that the provisions of
s 15
are centrally directed at imposing obligations
inter
se
on the parties to a marriage in
community, not on outside parties. It seems clear that a
transaction entered into by one
of the spouses contrary to the
provisions of
s 15(2)
or (3) is not
ipso
facto
void, as would ordinarily be the
case in a contract concluded in breach of a prohibitory statutory
provision. Those transactions
referred to in sub
sec 15(4)
are
amenable to ratification, and all of the listed transactions are
potentially liable to imputed validity in terms of
s 15(9)(a).
[59]
As noted by Professor Steyn, certain
provisions in
s 15
, in particular subsections (6) and (9)(a), are ‘to
balance the interests of the third party with those of the
non-contracting
spouse and, on a more fundamental level, to minimize
any disruption caused by the consent provisions to the free flow of
commercial
trade’.
[26]
The provisions of
s 15(9)(a)
afford protection to a third party
who does not know that the affected transaction is being entered into
contrary to the provisions
of
s 15(2)
and (3) and whose
ignorance in the circumstances is understandable and excusable.
They do not place the third party under
a duty of enquiry in every
case.
[60]
The phrase ‘does not know’ in
s 15(9)(a)
posits a factual situation. If the third party
does know that transaction is being entered into contrary to the
scheme of
s 15
, then he or she cannot derive any protection from
s 15(9)(a).
If the third party was not ignorant, one does
not reach the second leg of the test for protection in terms of
s 15(9)(a).
Passing the first leg (which is entirely fact
based) engages the second leg, which calls for an answer to the
question whether
the established ignorance was reasonable in the
peculiar circumstances. That is the import of the phrase ‘
and
cannot reasonably know’.
[27]
[61]
The object of
s 15(9)(a)
would be
nugatory if an enquiry by the third party was required in every
case. The third party would be called upon to require
production of a marriage certificate before entering into any of the
transactions covered by
s 15(2)
and (3), or to make enquiries at
the Department of Home Affairs; for that is the obvious nature of the
indicated enquiry if the
effect of the provision is that a third
party is always put on enquiry irrespective of any representation
that the contracting
spouse might have made. Such a requirement
would not only stultify commerce, it would also detract from the
intended empowering
effect of
ss 14
and
15
(1) of the
Matrimonial Property Act for
women married in community of property.
I do not consider that such a requirement can properly be
imputed on a proper construction
of the provision. Most of the
commentators appear to accept as much, but they are not agreed about
what exactly is required
because what is required falls to be
determined by the criterion of reasonableness - something that does
not lend itself to definition
in the abstract. I would
therefore reiterate that whether an enquiry by the third party is
indicated, and if so, its nature,
will be determined by the peculiar
circumstances of the given case. Any representation made by the
contracting spouse and
the context in which it is made are relevant
considerations in determining what might reasonably be expected of
the third party.
[28]
[62]
In my view any assessment of what might
reasonably be expected of a third party must take into account that
social norms and the
law do not expect persons to regulate their
dealings on the basis of suspecting illegality or fraud on the part
of those with whom
they transact. In the absence of good reason
to believe otherwise, there is something almost in the nature of a
presumption
that people conduct themselves honestly and in accordance
with the law; cf. e.g.
Gates v Gates
1939 AD 150
, at 155, where Watermeyer JA noted that the
reasonable mind is not so easily convinced by allegations of criminal
or immoral
conduct ‘because in a civilised community there are
moral and criminal sanctions against illegal and immoral conduct and
consequently probabilities against such conduct are stronger than
they are against conduct which is not immoral or criminal’.
Those sentiments reflect the prevailing social (and legal) norm
that everyone is, in general, entitled to treat with third
parties
accepting their bona fides.
[63]
In my judgment the actions of the deceased
in proposing and purporting to contract a customary marriage with the
third respondent
necessarily implied a representation by conduct that
he was lawfully entitled to enter into such a union.
[29]
In other words, in the context of the given facts, where the deceased
had made no secret of his existing prior marriage with
the applicant,
his conduct constituted a representation to the third respondent that
there was no impediment to his ability to
contract a co-existing
second marriage with her. The deceased’s conduct implied
a representation to the third respondent
that his first marriage was
a customary marriage. The essence of the third respondent’s
evidence is that the deceased’s
conduct gave her no reason to
suspect that he was not ordering his life in accordance with North
Ndebele tradition and custom.
Nothing appears to have been done
to disabuse her about the validity of her putative marriage to the
deceased. Knowing of
the relationship between the deceased and
the third respondent and of the children born of it, the applicant
does not appear to
have done anything to confront the deceased or the
third respondent about it in the ensuing years before the donation in
issue
was made.
[64]
I do not think that it was incumbent on the
third respondent in such circumstances to investigate the legal
character of the deceased’s
first marriage before she accepted
the donation. Adopting the approach applied in
Distillers
Corporation
and
M
supra, I am unable to hold that the
third respondent acted unreasonably by failing to challenge or
interrogate the deceased’s
representation. In the result
I have concluded on the papers that the third respondent’s
position is protected by
s 15(9)(a)
of the
Matrimonial Property
Act and
it is deemed that the donation was made with the consent
required in terms of
s 15(3).
[65]
The position of the first and second
respondents is materially indistinguishable for relevant purposes
from that of the third respondent.
They were reasonably
entitled to accept in the circumstances that they were the issue of a
customary marriage between the deceased
and their mother and that
their father was entitled to dispose of his property accordingly.
Further
disposal of the case consequent upon the upholding of the
respondents’ reliance on
s 15(9)(a)
[66]
The respondents’ counsel submitted
that in the event of my reaching such a conclusion the application
should be dismissed.
Mr
van der
Merwe
contended that the alternative
bases for the claim, namely fraud
[30]
or lack of mental capacity, should not be referred for determination
on oral evidence because a prima facie case on those grounds
had not
been made out by the applicant. I take a different view.
It is undesirable, in the context of the decision
that I have come to
in this respect, that I should expatiate about why I consider that
the applicant has said enough on the papers
to warrant the issues of
fraud and lack of mental capacity being sent to trial. I would
not wish anything I might have to
say in that regard to colour the
further proceedings that will ensue. Suffice it to say that in
paragraph 261 of her answering
affidavit the third respondent
expressly acknowledges her recognition that the case for the setting
aside of the registration of
the member’s interest in the
respondents’ names was brought by the applicant ‘
relying
on three grounds being fraud, alternatively, the lack of mental
capacity of the Deceased alternatively she never consented
thereto
’.
[31]
The bases for the case on each of those grounds were indeed made out
cognisably in the founding papers. Whether the
claim should be
sustained on the basis of fraud or lack of mental capacity is not up
for decision in this stage of the proceedings.
[67]
It seems to me that to refer the claims
based on the allegations of fraud and the deceased’s lack of
capacity to oral evidence
on the papers would conduce to an untidy
hearing. Their efficient disposal would be better addressed if
they were sent to
trial after an exchange of pleadings.
[68]
Mr
van der
Merwe
stressed, however, that the
applicant’s resort to motion proceedings in this matter had
been inappropriate because material
disputes of fact had been
manifestly foreseeable. He submitted that this was also in
itself reason enough to dismiss the
application entirely. I
agree that the disputes of fact that have emerged on the papers were
foreseeable and that, save for
the application for interim relief,
motion proceedings were not indicated. Indeed, whether the
applicant was well-advised
to have sought the determination of even
the separated question on the papers is open to doubt. Whether
to dismiss the application,
as might well have been appropriate in
the circumstances (cf.
Standard Bank of
SA Ltd v Neugarten and Others
1987 (3)
SA 695
(W) at 699A-B), or send the matter to trial is a decision to
be made in exercise of the court’s discretion.
[69]
In the current matter there are extant
interdicts in place that were plainly intended to regulate matters
until the final determination
of the dispute. If the
application were to be dismissed and proceedings in respect of the
two undecided bases for the applicant’s
claim to be pursued in
action proceedings to be instituted
de
novo
, the extant interdicts would
lapse. That would, no doubt, precipitate a re-run of the
applications for interim relief to
afford the applicant extended
protection pending the final determination of the case in the freshly
instituted main case proceedings
that would inevitably follow.
This would be inconvenient and impose unduly on judicial resources.
I have therefore
determined to direct that the outstanding issues
should go to trial, with the notice of motion and the relief prayed
for in terms
of paragraphs 2 – 4 thereof to stand as the simple
summons.
Reserved
costs and related matters
[70]
The applicant will be ordered to pay the
respondents’ wasted costs, if any, in respect of the abortive
set down of the application
for hearing on 24 April, 21 June and
22 August 2017, respectively. Costs of the proceedings on
6 February 2017
and those reserved in terms of the order made by
Hlophe JP on 5 September 2017 will be further reserved for
determination
by the court seized of the trial. The interim
interdicts granted in favour of the applicant on 6 February and 5
September
2017 shall remain in force pending the determination of the
action.
[71]
The following orders are made:
(a)
The applicant’s supplementary
founding affidavit,
jurat
8 March 2017, and her further replying affidavit,
jurat
10 August 2017, and the accompanying papers are admitted.
(b)
The following parts of the
applicant’s replying papers are struck out:
i.
The following words in para. 89 of the
applicant’s replying affidavit,
jurat
7 June 2017: ‘
and the Third
Respondent did not resign, she was fired by her employer at the time,
I was told
’.
ii.
The following words in para. 89 of the
applicant’s replying affidavit,
jurat
7 June 2017: ‘
as is all of the
Third Respondent’s evidence. She has specifically lied to
hide her fraud and falsification’
.
iii.
The entire affidavit of Peter Potjie
Ledwaba,
jurat
30 May 2017.
There is no order as to costs in the striking out application.
(c)
The claim based on the deceased’s
non-compliance with the consent requirements in terms of
s 15
of
the
Matrimonial Property Act 88 of 1984
, which was argued as a
separated issue on 7 and 12 December 2017, is dismissed.
(d)
The applicant is directed to pay the
respondents’ costs incurred in respect of the separated issue,
subject of the order made
in terms of paragraph (c)
above.
(e)
The determination of the claim based
on the allegations of fraud and the alleged mental incapacity of the
deceased is referred to
trial on the following directions:
i.
The notice of motion and the relief sought
in terms of paragraphs 2 – 4 thereof shall stand as the simple
summons and the
first to third respondents’ notice of
opposition shall stand as their notice of intention to defend as the
first to third
defendants in the action.
ii.
The applicant shall, as plaintiff in the
action, within 20 days of the date of this order deliver a
declaration, in which the grounds
for the claim shall, save otherwise
with the consent of the defendants or the leave of the court, be
limited to those founded in
the allegations of fraud and the
deceased’s lack of mental capacity contained in the applicant’s
supplemented founding
papers.
iii.
The applicant shall procure that a copy of
this order together with a copy of the applicant’s declaration
shall be served
by the Sheriff on each of the fourth, fifth and sixth
respondents, who shall be entitled to plead thereto as the fourth,
fifth
and sixth defendants in the action if so advised.
iv.
The further exchange of pleadings and
pre-hearing procedures, including discovery and the request for and
provision of trial particulars,
shall be regulated by the Uniform
Rules of Court in respect of action proceedings and the judicial case
management practices of
this Court.
v.
The interim interdicts granted in favour of
the applicant on 6 February and 5 September 2017, respectively, shall
remain in force
pending the determination of the action, or the
deemed dismissal of the application in terms of paragraph (h)
below.
(f)
The applicant is ordered to pay the
first to third respondents’ wasted costs, if any, in respect of
the abortive set down
of the application for hearing on 24 April,
21 June and 22 August 2017, respectively.
(g)
Subject to paragraph (h)
below, the costs of the proceedings on 6 February
2017 and those reserved in terms of the order made by Hlophe JP on
5 September
2017 are further reserved for determination by the
court seized of the trial, together with the costs of the application
that have
not been determined by paragraphs (d)
and
(f)
of this order.
(h)
In the event of the applicant
failing to deliver a declaration as directed in terms of paragraph
(e)(ii) above within the period
therein stipulated, the application
shall thereupon be deemed to have been dismissed with costs,
including the costs further reserved
in terms of paragraph (g)
above.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s
counsel:
S. Guldenpfennig SC
A. Ferreira
Applicant’s
attorneys:
Van Wyk Fouchee Inc
Paarl
Heyns and Partners Inc
Cape Town
First
to Third Respondents’
counsel:
Dirk van der Merwe
First
to Third Respondents’
attorneys:
Hayes Inc
Cape Town
[1]
The claim based on what has loosely been described as
‘fraud’ is actually more accurately described as one
founded
on an allegation of theft or misappropriation. It has
various aspects to it, including the allegation that the third
respondent
must have misrepresented to the Companies and
Intellectual Property Commission that the deceased was party to the
transfer of
the member’s interest. As will appear,
precise characterisation of the basis of the claim is not necessary
for present
purposes and I have therefore found it convenient to
adopt the label used by the applicant and her legal representatives
in the
judgment.
[2]
See s 5 read with
s 2
of
the
Identification Act. In
terms of
s 8(e)
, the
population register contains in respect of every citizen and
permanent resident ‘
the
particulars of his or her marriage contained in the relevant
marriage register or other documents relating to the contracting
of
his or her marriage, and such other particulars concerning his or
her marital status as may be furnished to the Director-General
’.
[3]
See
ss 6
and
21
of the
Identification Act.
[4
]
In terms of
s 4
of the
Identification Act the
Director-General is authorised to assign his
powers and functions under most provisions of the Act (including
s 23) to an
officer in the public service. The deponent
averred at para. 3 of the affidavit that he had ‘
been
authorized by the Director-General in terms of the
Identification
Act … to
exercise and
perform duties relating to these records
[i.e. the original registrations in respect of all births, marriages
and deaths in the Republic of South Africa]
conferred
or imposed upon by
(sic)
the
Director-General’
.
[5]
Made in terms of
s 10
of the
Justices of the Peace and Commissioners of Oaths Act 16 of 1963 and
published under GN R 1258 in GG 3619 of 21 July 1972,
as
subsequently amended,
inter
alia
, by GN 1648
published in GG 5716 on 19 August 1977. Regulation 4(2)
provides:
The
commissioner of oaths shall –
(a)
sign the declaration and print his full name and business address
below his signature; and
(b)
state his designation and the area for which he holds his
appointment
or the office held by him if he holds his office
ex
officio
.
[6]
See item 49 in the schedule to the
‘Designation of Commissioners of Oaths in Terms of Section 6’
made by the Minister
of Justice and published under GN 903 in GG
19033 of 10 July 1998, as subsequently amended on various
occasions, most recently
by GN 1255 published in GG 40346 of
14 October 2016.
[7]
Determined by the Minister in terms
of reg. 47 of the Public Service Regulations, 2016, published in
Regulation Notice 877 published
on 29 July 2016. The
Minister’s determinations are published in the handbooks
contemplated by s 42 of the
Public Service Act 103 of 1994.
[8]
Act 27 of 1990.
[9]
See
Zarug
v Parvathie
NO
1962 (3) SA 872
(D). at 873H-874D for a discussion of the generally
applicable principles with reference to the authorities. See
also
South African
Post Office Ltd v Chairperson, Western Cape Provincial Tender Board,
and Others
2001
(2) SA 675
(C), at para 24.2.
[10]
See paragraph [14]
above.
[11]
The following statement was made in
an email to Meyer de Waal, copied to ‘Heila’, dated 17
April 2012, and sent from
the email address of ‘martha
ledwaba’, marthaledwaba@yahoo.co.uk, but signed in the
deceased’s name: ‘…
it
just came to my attention that See Punt Eiendomme was registered as
a CC and that it owed annual returns from 2009 and as a
result it
has been de-registered. As a way forward, I’ve already
paid the outstanding amounts and currently getting
it restored.
In that regard all I’m asking from you is that if you’ve
got the original CC/CK documents, I will
need to attain ownership of
them during my above mentioned visit to Cape Town.
’
(Annexure HT2 to the affidavit of Heila du Toit
jurat
6 March 2017.)
[12]
Whether it actually was a donation
or not would be affected by the determination of the applicant’s
allegations of fraud
and/or lack of contractual capacity.
[13]
Plascon-Evans Paints (Tvl) Ltd. v
Van Riebeck Paints (Pty) Ltd.
[1984]
ZASCA 51
;
[1984] 2 All SA 366
(A);
1984 (3) SA 623
at 634E-635C
(SALR); and see also
National Director
of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (1) SACR 361
(SCA);
2009 (2) SA 277
;
[2009] 2 All SA
243
;
2009 (4) BCLR 393
, at para. 26-27. The incidence of the
onus would be pertinent only to determine whether the facts
established applying
the rule in
Plascon-Evans
justify the relief that has been sought; in other words, in
determining whether the requirements for the grant of the remedy
have been satisfied.
[14]
Ngqumba and Another v State
President and Others; Damons NO and Others v State President and
Others; Jooste v State President
and Others
[1988] ZASCA 23
; 1988(4) SA 224 (A), at 259C-263D (SALR), approving
the following statement by Kannemeyer J in the court a quo:
‘
The approach
laid down in Plascon-Evans Paints Ltd v. Van Riebeeck Paints (Pty)
Ltd 1984(3) SA 623 (AD) is not concerned with
the question of onus.
It determines the evidence upon which an application on notice of
motion must be decided when there is
a conflict of fact on the
affidavits
’.
[15]
See para. [35]
above, for the text of the
provision.
[16]
The position is fundamentally
distinguishable from that which obtained in
Naidoo
and Another v Naidoo and Others
[2008] ZAKZHC 73
(29 September 2008);
[2009] JOL 22674
(N), in which
the respondents, who sought to avoid a settlement agreement entered
into by their spouses on the grounds that they
had not consented
thereto, were held, on account of their knowledge of the settlement
negotiations and presence at the signing
of the deed, to have
tacitly consented by failing to protest at the time. They had
also signed the transfer documentation
to enable the terms of the
settlement agreement to be carried out. (The judgment in
Naidoo
was reversed on appeal for reasons unconnected with the point taken
by the respondents in reliance on
s 15
of the
Matrimonial
Property Act; see
Naidoo
NO and Others v Naidoo and Another
[2010] ZAKZPHC 41; 2010 (5) SA 514 (KZP).)
[17]
See
Bopape
and another v Moloto
[1999] 4 All SA 277 (T), 2000 (1) SA 383.
[18]
The applicant could not competently
have ratified the donations after the death of the deceased for that
would have prejudiced
the rights of the other intestate heirs to the
deceased estate; cf. the discussion in
Smith
v Kwanonqubela Town Council
[1999] ZASCA 58
;
[1999] 4 All SA 331
(A);
1999 (4) SA 947
, at
para 12-13.
[19]
See para. [35]
above,
for the text of the provision.
[20]
In
S
v Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
, at para. 52.
[21]
Also reported as
PM v TM
2016 JDR 0171 (GP).
[22]
In
M
,
the court accepted an argument that
s 15(9)(a)
gave rise to ‘a
presumption’ in favour of the third party that the other
spouse had given the requisite consent for
the transaction; an
interpretation to which I am, with respect, unable to subscribe.
It seems clear to me, however, that
the outcome of the case did not
depend on the attributed existence of ‘the presumption’,
but rather on the court’s
evaluation of what might reasonably
have been expected of the second respondent in the circumstances.
In my judgment
s 15(9)(a)
is, like
s 15(6)
, in essence, a
proviso to
s 15(2)
and (3); see
Strydom
v Engen Petroleum Ltd
[2012] ZASCA 187
;
[2013] 1 All SA 563
(SCA);
2013 (2) SA 187
, at
para. 14-15 and
Gounder
v Top Spec Investments (Pty) Ltd
[2008] ZASCA 52
;
[2008] 3 All SA 376
(SCA);
2008 (5) SA 151
, at
para. 17.
[23]
At para. 8 of
Visser
the learned judge remarked ‘
I
agree with Professor Steyn that a third party is expected to do more
than rely upon a bold assurance by another party regarding
his or
her marital status. An adequate inquiry by the third party is
required
’.
[24]
‘
I/we hereby declare that the
deed of suretyship has been completed by me/us, or in our presence,
and that I am/we are legally
empowered to enter into it.’
(My translation.)
[25]
S Jacobs and L Steynberg, in an
article entitled
Artikel
15(9)(A) van die Wet op Huweliksgoedere 88 Van 1984 –
Betekenis van “Nie redelikerwys kan weet nie”
2003 (66) THRHR 510
, at p. 514, identified two schools of thought on
the construction and application of
s 15(9)(a).
They
state:
[Dit
wil]
dus voorkom of daar basies twee standpunte is oor wat
presies van ’n redelike persoon (soos bedoel in a 15(9)(a) van
die
Wet) in die posisie van die eiser verwag kan word:
(a)
Die handelsverkeer mag nie onnodig ingeperk word nie en daarom kan
’n gewone besigheidsman (soos in die feite van hierdie
saak)
hom bloot verlaat op ’n kliënt se mededelings, sonder om
verdere ondersoek te loods (Van Wyk
[Van
Wyk,
Gemeenskap van goedere en
aanwasbedeling volgens die Wet op Huweliksgoedere, 1984
,
1985
De Rebus
22]
en Sinclair
[June
Sinclair
An
introduction to the Matrimonial Property Act 1984
(1984)]
); en
(b)
die gewone besigheidsman kan nie met ’n algemene, niksseggende
verklaring (soos in
Modise
die geval was) tevrede wees nie, maar moet verdere en meer
ekstensiewe ondersoek doen (Schäfer
[“Matrimonial Property”
Family law service vol 1 29]
en
Visser en Potgieter
[
Inleiding tot die familiereg
(1998)
128]
)
.
(
Eng
.
‘[It would] therefore appear that there are basically two
standpoints about what precisely might be expected of a reasonable
person (as contemplated in s 15(9)(a) of the Act):
(a)
Commercial dealings must not be unnecessarily restricted and
therefore an ordinary businessman (as on the facts of the
Distillers
Corporation
case) is entitled to rely entirely on the customer’s
representations without undertaking further investigation (Van Wyk
and Sinclair); and
(b)
The ordinary businessman cannot be satisfied with a general
non-particularised declaration, but must undertake further and
more
extensive investigation (Schäfer and Visser and Potgieter).’
My translation.)
[26]
Op cit supra, at p. 253.
[27]
Italicisation for emphasis.
[28]
In
Sishuba v Skweyiya
[2008] ZAECHC 25
(6 March 2008) Plasket J expressed the view that
s 15(9)(a) placed a duty of enquiry on the third party.
It seems
to me, however, from the learned judge’s reference,
without disapproval, in the pertinent passage of his judgment to
Distillers Corporation
and his pointing out that the respondent in the case before him had
not, amongst other matters that she could have raised, suggested
that there had been any misrepresentation by the contracting spouse,
that he would have allowed that in the circumstances of
a given case
the need for or extent of enquiry might be affected by the
representations made by the contracting spouse.
See especially
para. 21-26 of the judgment.
[29]
The applicant delivered an affidavit by a professor in
the law faculty at the University of South Africa, which raised
various
questions about the extent to which the process of the
conclusion of the third respondent’s putative customary
marriage
complied with the requirements for a customary union in
accordance with Northern Ndebele customs and traditions. It is
not necessary for the purposes of deciding this part of the case to
determine issues of compliance. It is accepted that the
union
was invalid because of the deceased’s pre-existing civil
marriage. Whatever questions might be raised about
the
orthodoxy of the customary marriage process that the third
respondent went through with the deceased, I have no reason, when
determining the question on paper, not to accept the third
respondent’s evidence that she believed herself to have been
party to a customary marriage with him in consequence of having gone
through the processes she described..
[30]
See note 1
above.
[31]
In his heads of argument, Mr
van
der Merwe
submitted that it was ‘
clear
from the founding papers that the principal ground upon which
[the applicant]
relies …is that
[the]
transfer was fraudulent
.’