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2023
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[2023] ZAFSHC 275
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M.A.M v T.S.M and Another (3337/2023) [2023] ZAFSHC 275 (19 July 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:3337 /2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO
MAGISTRATES: YES/NO
In
the appeal of:
M[…]
A[…] M[...]
APPLICANT
and
T[…]
S[…] M[...]
FIRST
RESPONDENT
LEBOGANG
MACDONALD SAILA
SECOND
RESPONDENT
PALESA
MAMPESI SAILA
THIRD
RESPONDENT
THE
REGISTRAR OF DEEDS: BLOEMFONTEIN
FOURTH
RESPONDENT
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
06
JULY 2023
The judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and released to
SAFLII on 19 JULY 2023. The
date and time for hand-down is deemed to be 19 JULY 2023 at 11h00
[1]
In Part A of this application, the
Applicant seeks an order to interdict the Second and Third
Respondents from proceeding with their
eviction application
instituted in the lower court and also to restrain them from selling
or alienating immovable property known
as erf…Mangaung
Metropolitan Municipality [Extension 17] (the joint property) pending
an application to be brought in Part
B to nullify and cancel the sale
and transfer of the said joint property to the Respondents. Only the
Second and Third Respondent
(the Respondents) oppose this
application.
[2]
The Applicant and the First Respondent (Mr M[...]) were married in
community of property on 8
December 2000. Their marriage was
dissolved by an order of the court on 27 January 2023. Although the
Applicant says that Mr M[...]
sought an order of forfeiture in the
divorce proceedings, she and Mr M[...] chose not to play open cards
with the court as to the
final relief granted. The evidence tempts
one to believe that the Court ordered the division of the estate.
None of
them chose to attach their final order of divorce to
their papers.
[3]
On 29 July 2022, before the dissolution of the marriage between the
Applicant and Mr M[...], the
latter sold and transferred the joint
property to the Respondents. It is the case for the Applicant that
she was unaware of the
said sale and transfer and she thus did not
consent to said sale and transfer.
[4]
The respondents resist the granting of Part A of this application.
The essence of their case is
that they are the registered owners of
the joint property. They allege that they bought the joint property
from Mr M[...] through
an estate agent after seeing the property
posted on facebook where it was advertised for sale. According to
them, all communication
and dealings towards the conclusion of the
sale agreement were communicated and interacted with the estate agent
and the conveyancing
attorneys. According to them, they did not know
Mr M[...] at all.
[5]
According to the respondents, they only came to know that Mr M[...]
was married after registration
of the joint property in their names.
The high-water mark of their defence is based on the protection
afforded by section 15(9)
of the Matrimonial Property Act 88 of
1988(the Act). The Respondents contend that they had no knowledge
that Mr M[...] was married
or had to obtain the consent of the
Applicant before he sold the joint property to them. They contend
that they were bona fide
purchasers and were entitled to protection.
[6]
The requirements for an interim interdict are trite. In order for the
Applicant to succeed in
securing an interim order, he/she must
establish the following:
i.A
prima facie right even though open to some doubt;
ii.A
well-grounded apprehension of irreparable harm if interim relief is
not granted;
iii.That
the balance of convenience favours the granting of an interim
interdict, and;
iv.That
there is no other satisfactory or adequate remedy available to the
applicant.
[7]
Whether the Applicant has established a prima facie right even though
open to some doubt must
be adjudicated on the undisputed evidence
before the court. It is apt to take note that the Applicant did not
file any replying
affidavit to the answering affidavit of the
Respondents. It is undisputed that the Applicant and Mr M[...] were
married in community
of property during the sale and transfer of the
joint property to the Respondents. It is further not in dispute that
during the
sale and transfer aforesaid the Applicant did not give her
consent to Mr M[...] to sell the joint property.
[8]
From the evidence it is clear that the Applicant relies on section
15(2)(a) of the Act which provides
as follows:
“
(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 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 servitude or
conferring of any real right in an immovable
property forming part of
the joint estate”
[9]
On the other hand, the Respondents rely on section 15(9)(b) of the
Act, which provides as follows:
When
a spouse enters into a transaction with a person contrary to the
provisions of subsections (2) and (3) of this section, or
an order
under section 16(2), and –
a)
that person
does not know and cannot 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 without the consent
required in terms of the said subsection
(2) or 93), 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 division of the
estate.
[9]
The Respondents relied heavily on the case of
Vukeya
v Ntshane and Others
[1]
.
Like
in this case, in
Vukeya,
the
spouses were married in community of property. The sale and
registration of their immovable property was sold by one spouse
without the consent of the other spouse. The non-contracting spouse
was deemed to have consented to the sale because the third
party did
not know and could not reasonably have known that the first
respondent’s consent was lacking. On the version of
the
Respondents it would appear as though this case is on all fours with
the application before me.
[10]
This court heard full arguments on the merits of Part B.
Needless to point out that this
court is not ceased with the final
determination of the rights of any of the parties herein. The alleged
unlawfulness of the sale
of the joint property hinges on the proper
application of sections 15(2)(a) and 15(9) of the Act as set out
above. Unlike in this
case,
Vukey
a dealt with the final
determination of the rights of the parties therein. In this case, I
am not called upon to make such a determination.
I am unable to say
more on the dispute in this case as in my view, the court seized with
Part B of the application would be better
placed to deal with this
impasse.
[11]
In my view, the applicant, married in community of property to Mr
M[...] at the time of the sale and transfer
of the joint property,
has succeeded to establish that she has a prima facie right though
open to some doubt to obtain temporary
relief pending the
finalisation of Part B. Such a right is crystallised by the
allegation that as a co-owner of the joint property,
the same was
sold without her knowledge and consent. Admittedly the court may
after hearing all the evidence order against her
but that is not the
test at this stage.
[12]
The applicant and her children would suffer irreparable harm if this
interim order would be declined.
“…
Under
the
Setlogelo
test the prima facie right a claimant must establish is not merely
the right to approach a court in order to review an administrative
decision. It is a right to which, if not protected by an interdict,
irreparable harm would ensue...”
[2]
The
interests of justice demand also that this court should hold over the
eviction proceedings between the parties pending the final
determination of the rights of the parties herein, The balance of
convenience favours the granting of this order.
[13]
I am satisfied that there is no other satisfactory remedy to afford
protection to the Applicant. I accordingly
order as follows:
ORDER
IT
IS ORDERED THAT:
1.
The
Applicant’s non-compliance with the Uniform Rules of this Court
relating to forms, time periods and rules of service is
hereby
condoned;
2.
Pending the
determination of PART B of this application, the eviction proceedings
in the Magistrate Court under Case number 41541
be stayed;
3.
Pending the
determination of Part B of this application, the Second and Third
Respondents are interdicted/ prohibited from selling
or alienating
ERF 2[…] Mangaung (Extension 17) District Bloemfontein;
4.
The costs
shall be costs in Part B of the Application.
P.
E. MOLITSOANE, J
On
behalf of the Applicant:
Adv.
Mohono
Instructed
by
T
Ndou Attorneys
BLOEMFONTEIN
On
behalf of the Respondents:
Adv.
Steenkamp
Instructed
Bezuidenhouts
Attorneys INC.
BLOEMFONTEIN
[1]
(518/2019)
[2020] ZASCA 167
;2022(2) SA 452(SCA) (11 December 2020).
[2]
National
Treasury v Opposition to Urban Tolling Alliance 2012(6) SA 223 (CC)
para 50.