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[2012] ZAGPJHC 108
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B v B (2010/50006) [2012] ZAGPJHC 108 (28 May 2012)
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NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
APPEAL
CASE
NO: 2010/50006
DATE:28/05/2012
In the matter between:
B
,
JM
..............................................................................................................
Appellant
and
B
,
DH
.............................................................................................................
Respondent
J U D G M E N T
SUTHERLAND J:
[1] The appellant and respondent
were formerly married to one another. They were divorced on 12 May
2009. Among the disputes addressed
in a contested divorce action was
the question of whether or not the respondent was entitled to
transfer of a one third share in
a house at Erf 59 Honeyhills,
Johannesburg, which was, at all times, registered as the sole
property of the appellant. The judgment
on trial held that he was
entitled to transfer and made a corresponding order.
[2] The appeal is against that
part of the trial judgment’s order.
[3] The basis of the claim by the
respondent is that the provisions of clause 8 of an antenuptial
contract, drawn on 22 September
1993 conferred such a right. That
text reads:
“
EIGHT
That
the assets of either party, which are listed hereunder, and all
liabilities presently associated therewith, or any other asset
acquired by such party by virtue of his possession or former
possession of such asset, shall not be taken into account as part
of
such party’s estate at either the commencement or dissolution
of the marriage:
That
of Daniel Hugo Bath to be:
1/3
share of Erf 59 Honeyhills Township R120,000
Erf
1829 Ramsgate Township 16,000
Stamp
collection
2000
[over
page]
Wood
and woodwork equipment R10,333,00
All
paintings by F Coetzee
4,000,00
Ford
Prefect 1946
12,000,00
Antique
sewing machine 1000,00
Chemical
scale
3000,00
1940
Radio
500.00
All
firearms
27,500.00
That
of Joy Moonjean Usswald
2/3
share Erf Honeyhills Township R 240 000
3
Tier antique bookcase
3000,00
Pearls,
emerald ring, gold bracelet 5000,00
Antique
teak desk
5000,00
Lladro
porcelain collection
10,000,00”
[4] It is common cause that the
assertion of a right to transfer of fixed property must satisfy the
provisions of Section 2 of the
Alienation of Land Act 68 of 1981
.
That text reads:
“
No
alienation of land after the commencement if this section shall,
subject to the provisions of
section 28
, be of any force or effect
unless contained in a deed of alienation signed by the parties
thereto or by their agents acting on
their written authority
.”
..............................
”.
The concept of “land”
includes, in terms of
Section 1
, ‘
any
right to claim transfer of land’.
[5] In support of his contention
that he is entitled to a transfer of the third share, as recorded in
the ANC, the respondent testified
that he and the appellant reached
an oral agreement. The agreement arose from the respondent’s
payment of a sum to the appellant’s
then, about to be,
ex-husband, Usswald, to discharge her indebtedness to Usswald in
respect of Uswald’s entitlement to a
share in the value of her
estate by reason of his disbursements to pay the bond on the house.
In return for the respondent’s
payment on her behalf, the
appellant agreed to give him a third of the property. Although this
account was disputed by the appellant,
and gallantly corroborated by
Usswald, we prefer the version of the respondent because of the poor
showing of the appellant as
a witness and because the probabilities
are overwhelmingly in favour of the respondent’s version. On
the appellant’s
version no plausible reason was given for what
appears in clause 8 of the ANC. Her professed ignorance of its
provisions is unconvincing.
However, for the reasons that follow, it
is unnecessary to address the credibility of the parties any further.
[6] The essential difficulty with
the case for the respondent, despite acceptance of his testimony on
the origins of the provisions
of clause 8, is the absence of evidence
to demonstrate a valid and enforceable agreement in the terms that he
alleges.
[7] The primary impression upon
the reader of clause 8 is that the parties have recorded a schedule
of property each asserts they
own. The purpose of the clause is to
identify plainly which of their assets are to be expressly excluded
from their estates subject
to accrual. The text does not purport to
record the actual transfer or an obligation to transfer or a right to
receive transfer.
Signally absent is any reference to a causa for the
passing, from the appellant to the respondent, of an entitlement;
rather, the
text, at best, presumes the existence of the fact of the
entitlement, which, in turn, would be premised upon a valid agreement
to pass transfer of fixed property.
[8] Self evidently, a
bona
fide
belief in a given
state of fact may be incorrect in law. This case illustrates exactly
that.
[9] It is plain that there is no
other writing of any sort upon which the respondent can rely to
assert his claim.
[10] It is argued that the text
of clause 8 can be read to mean that it was within the contemplation
of the contracting parties
when concluding the ANC that the third
share was ‘to be ‘transferred in the future. The premise
for this contention
rests wholly upon the use of the words ‘to
be’ in the preamble to the schedule of the respondent’s
excluded assets.
Those words are not used in the preamble to the
appellant’s schedule. The argument is that, with regard to
that contrast,
the text envisages a future transfer of the third
share.
[11] There seem to be two reasons
why that contention cannot be sustained. First, there are 10 items of
property in the respondent’s
schedule, of which 9 items were
already his property. The preamble must be read to apply to all the
items. Logically, the notion
of future acquisition cannot apply
selectively to one and not the others. Secondly, Clause 7 of the ANC
also employs the words
‘to be’ in respect of the parties
declarations about the present value of their estates subject to an
accrual. The
sentence reads: “
...the
intended spouses declared the net value of their respective estates
to be as follows: ...
”.
The usage of the words ‘to be’ in that clause could not
mean a future acquisition of assets up to the given
values.
[12] It seems more likely that
the drafting was inept in not keeping to a consistent structure, a
conclusion which is fortified
by the fact that both clauses 7 and 8
begin with the word ‘that’ which was superfluous and
grammatically incorrect
given that the clauses are all subordinate to
the introductory mantra which ends:
‘....,
they have contracted and agreed, as by these presents, that: ...’
None of the other subordinate clauses commit this error.
[13] The harsh reality is that,
notwithstanding a de facto intention to make over to the respondent
an interest in the house, because
the legal formalities for that
transaction were not fulfilled, that undertaking cannot be enforced.
The very point of the
Alienation of Land Act is
to compel prescribed
writing to be effected and to penalise non-compliance with
invalidity. The very words of the statute “
No
alienation of land ... shall, ... .be of any force or effect unless
contained in a deed of alienation signed by the parties
”
eliminates any doubt.
The whole contract to effect a valid alienation must be in writing
and no room exists to supplement it (
Leal
v Johnston
1978 (4) SA
706
(W) at 711A). Although it is now uncontroversial that in the
exercise to interpret any writing recording a contract, ambiguities
in the writing can be resolved by reference to evidence of the
context (
KPMG Chartered
Accountants (SA) v Securifin Ltd & Ano
2009 (4) SA 300
(SCA) at [39], per Harms DP) there can be no
amplification of the record created by the contracting parties. The
unavoidable implications
of the contentions on behalf of the
respondent are that the court is indeed asked to supply exactly such
an amplification.
[14] The consequence is that the
respondent has no enforceable right to a transfer of a third share of
the house because there is
no written instrument which confers that
right upon him, as contemplated by
Section 2
of the
Alienation of
Land Act.
[15] In the circumstances, the
appeal must succeed.
[16] In addition, it must follow
that as the appellant remains the owner of three thirds of the house;
but, only two thirds were
excluded from the accrual, a third of the
value of the house must be taken into the reckoning for the
calculation of any accrual.
[17] It is unnecessary for us in
this judgment to make any findings about the question of Unjust
Enrichment, if any, that has resulted
from the failure to reimburse
the respondent for his outlay which has enriched the appellant.
[18] As to costs, as the
appellant has been wholly successful, and resistance by the
respondent was persisted with to the end, no
circumstance exists of
sufficient weight which might persuade the court to vary the usual
consequence that costs follow the result.
[19] Accordingly, an order is
made as follows:
The appeal is upheld.
Orders 2, 3, 4 and 5 of the judgment a quo are set aside.
The respondent shall pay the appellant’s costs.
_____________________________
RT SUTHERLAND J
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree, and it is so ordered:
_____________________________
K
SATCHWELL J
JUDGE
OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree:
_____________________________
B
A
MASHILE AJ
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Date
of Hearing : 26 April 2012
Judgment
handed down : 28 May 2012
For
Appellant : Adv HL Haskins SC
Shapiro
& Shapiro Inc
Reference
: Shapiro/N Oosthuizen/b0032/amn
For
Respondent : Attorney M W Verster
BMV
Attorneys
Ref : MARIUS
VERSTER / KDL /B8060
Email:
michelle@bmvlaw.co.za