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[2021] ZAGPJHC 503
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N v N and Others (2021/43686) [2021] ZAGPJHC 503 (6 October 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
REPORTABLE:
No
OF
INTEREST TO OTHER JUDGES: No
6/10/2021
Case
No.: 2021/43686
In
the matter between:
E.I.N
Applicant
and
W.J.N
First Respondent
MUNICIPAL
EMPLOYEE GRATUITY FUND
Second Respondent
REGISTRAR
OF DEEDS, JOHANNESBURG
Third Respondent
JUDGMENT
This
judgment was prepared and authored by Acting Judge Gilbert. It is
handed down electronically by circulation to the parties
or their
legal representatives by email and uploading it to the electronic
file of this matter on CaseLines.
Gilbert AJ:
1.
The applicant and the first respondent are
married in community of property and are in the midst of divorce
proceedings. The applicant
seeks urgent interim interdictory relief
pending the finalisation of the divorce proceedings restraining her
husband from alienating,
encumbering, ceding, disposing of or selling
any of the immovable, movable, incorporeal and corporeal assets in
the joint estate,
including from claiming, withdrawing or receiving
any monies due or accruing to him from his pension fund/interests
held with the
second respondent and from alienating or from in any
manner whatsoever encumbering immovable property registered in his
name situated
in Bruma without her knowledge and prior written
consent.
2.
There is no dispute that the interim relief
relates to property falling in the joint estate, including the
immovable property registered
in the first respondent’s name
(which the parties describe as the matrimonial home) and such
interest or benefit he may have
in his pension fund. It is therefore
also common cause between the parties that section 15 of the
Matrimonial Property Act,
1984 (“the Act”) applies and so
that the applicant’s consent as the spouse married in community
of property to
the first respondent is required to alienate, mortgage
or otherwise deal in certain of the assets in the joint estate.
Indeed,
the first respondent’s primary grounds of opposition is
that because the applicant’s consent is required in terms of
section 15 of the Act, it is, to use the words of the first
respondent’s attorney (who argued the matter before me),
legally impossible for the transactions that the applicant fears to
take place and therefore that the relief sought by the applicant
is
unnecessary, and therefore cannot, or should not, be granted.
3.
The applicant’s case is that
notwithstanding that her consent is required in terms of section 15
of the Act, there exists
a sufficiently well-grounded apprehension
that the first respondent will engage in a transaction that requires
her consent, to
her irreparable prejudice.
4.
The describes in her founding affidavit why
she so apprehends. Before turning to those averments, it is to be
appreciated that the
first respondent has elected not to file an
answering affidavit but only to file a notice in terms of Uniform
Rule 6(5)(d)(iii)
raising a question of law. This election has
important consequences, all of which are trite.
5.
The
first is that the averments in the founding affidavit are to be taken
as established facts, as there is no competing factual
version.
[1]
Accordingly, I must accept established as fact those averments made
by the applicant in her founding affidavit.
6.
A second consequence is that it is
impermissible for a respondent to seek to advance a factual version
under the guise of a rule 6(5)(d)(iii)
notice rather than under
oath in an answering affidavit. In the present instance, the first
respondent in his notice contends for
lack of urgency and that the
relief sought is incompetent because the Act, amongst other statutes,
prevents any of the feared transactions
from taking place.
7.
But the first respondent goes further and
seeks to make use of the notice to assert what withdrawals can be
made from pension funds,
that he does not intend to sell the Bruma
property, that he does not intend to withdraw any pension fund
benefits and to complain
about he contends is an illegality committed
by the applicant in herself previously selling immovable property
which formed part
of the joint estate. The applicant goes so far as
to attach documents to his notice in support of the latter.
8.
Of course, this is impermissible as the
notice is not a place for these kinds of assertions, which, if the
first respondent wished
to make them, should have been made under
oath. I will therefore disregard them.
9.
The applicant filed a supplementary
founding affidavit seeking to deal with the averments in the notice.
The applicant sought leave
to file this supplementary affidavit. In
my view, the supplementary affidavit takes the matter no further,
particularly once I
disregard those averments in the notice that do
not belong there.
10.
I can now turn to what the applicant says
in her founding affidavit as to why the relief sought remains
necessary notwithstanding
the protection afforded to her in
section 15 of the Act.
11.
The applicant describes the first
respondent’s historical conduct in dealing with assets falling
within the joint estate notwithstanding
that her consent was required
and not obtained.
12.
The applicant describes that she and the
first respondent were married on 14 December 2017 and that at
the inception of the
marriage she agreed with the first respondent
that a mortgage bond could be registered over the immovable property
situated in
Bruma for an amount of R500,000.00. This property had
been acquired by the first respondent before his marriage and
therefore the
title deeds continue to reflect him as the unmarried
registered owner of the property. The applicant continues that
contrary to
her consent, the first respondent attended to registered
a bond of R1 161 000.00 over the Bruma property. The
applicant
attaches the mortgage bond, which reflects the first
respondent, with an unmarried status, having bonded the property in
the sum
of R1 161 000.00.
13.
As stated, the applicant’s version in
the founding affidavit must be accepted as factually correct in the
absence of an answering
affidavit. There is nothing so inherently
implausible in the applicant’s version that it must be
rejected. It must therefore
be accepted that notwithstanding that the
applicant’s consent to register a bond limited to R500 000.00,
the first respondent
nevertheless went ahead and attended to register
the mortgage bond encumbering the Bruma property for a far greater
amount. What
this demonstrates is that although the parties were
already married in community of property and therefore the
applicant’s
consent was required in terms of section 15(2)(a)
for the Bruma property to be mortgaged, the property was nevertheless
encumbered
contrary to her consent.
14.
This also demonstrates that the first
respondent’s primary submission that it is “legally
impossible” to bring
about a transaction contrary to section 15
is incorrect. It is also not difficult to see how this happens. As
the property
was acquired by the first respondent before he was
married, the records of the Deeds Office continue to reflect that
unmarried
status after he marries. When transactions take place in
relation to the property, it may be that neither the Registrar of
Deeds
nor any third party who has recourse to the records of the
Deeds Office will know that the property now falls within a joint
estate.
Of course, the conveyancer attending to the conveyancing
should make the necessary enquiries, but this does not mean that it
is
impossible for the transaction to take place, and to be registered
in the Deeds Office. Accept as I must the applicant’s factual
version that she only consented to a mortgage bond of R500 000.00,
whatever the conveyancer’s duties may have been,
the bond that
was registered was for a greater amount and demonstrates that the
first respondent did act contrary to section 15(2).
15.
The first respondent’s attorney
argued that the public records of the Deeds Office show that he is
now married in community
of property, and so there is no prospect of
a transaction taking place contrary to section 15 and to the
applicant’s prejudice.
To this end, the first respondent’s
attorney referred to a “
Lexis
WinDeed
” report annexed to the
applicant’s founding affidavit, which on one particular page
shows that the first respondent
is married in community of property.
But the same report also shows earlier that the first respondent is
unmarried. It is also
not clear to me from where the compiler of this
report, LexisNexis, sources this information, and whether it is
exclusively from
the records of the Deeds Office. Although an
antenuptial contract is required to be lodged with the Registrar of
Deeds, no evidence
was led that there is a particular document that
is lodged at a matter of course with the Registrar of Deeds when a
person is married
in community of property, and that would result in
the first respondent’s marital status being updated in the
records of
the Deeds Office.
16.
In the circumstances, I cannot accept the
first respondent’s submission that it is legally impossible to
sell or encumber
the Bruma property without the applicant’s
consent. The first respondent’s previous registration of a
mortgage bond
in excess of the amount to which the applicant
consented is proof of that.
17.
It also does not follow that an alienation
or encumbrance of the Bruma property if alienated or encumbered
without the applicant’s
consent will be void. To the contrary,
section 15(9) provides that when a spouse enters into a
transaction with a person contrary
to the provisions of
subsections 15(2) or (3) and that other 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 subsections. There is therefore a real risk that should the Bruma
property or any other asset
to which sections 15(2) and (3) apply be
alienated or otherwise dealt with by the first respondent without the
necessary consent
from the applicant, and should the
bona
fide
third party not know and could not
reasonably have known that the transaction was entered into without
that consent, that the transaction
will nonetheless be valid.
18.
The first respondent’s attorney
submits that it is not possible for a third person to
bona fide
transact in relation to the Bruma property as he or she would
reasonably know or should reasonably know that the applicant’s
consent is required because the records of the Deeds Office shows
that the first respondent is married in community of property
to the
applicant. But, as I have already set out, it is not clear at all
that this submission is well-founded, particularly in
the absence of
evidence of a person with the appropriate expertise or personal
knowledge as to what information is available to
the public at the
Deeds Office that would reasonably inform a third party that that
parties are married in community of property.
19.
The applicant in her founding affidavit
makes the point that her attorneys have formally sought of the
conveyancers who attended
to register the mortgage bond to furnish
the relevant conveyancing documents to see what in fact the first
respondent told the
conveyancers. Those conveyancers have declined to
release the documents without the first respondent’s consent,
and the first
respondent has avoided giving that consent. Although it
is within the first respondent’s power to be transparent on
this
issue, he has resisted doing so. This fortifies the applicant’s
apprehension that if interim interdictory relief is not granted,
she
may be irreparably prejudiced.
20.
The applicant’s cause for concern
goes further. The applicant describes how during August 2021 she
chanced upon an advertisement
advertising the Bruma property for sale
and that when she contacted the estate agent, she was informed by the
estate agent that
the first respondent had informed the estate agent
that he was already divorced. Again, in the absence of an answering
affidavit,
this averment must be accepted as correct.
21.
The applicant goes further and describes a
further more recent attempt by the first respondent to market and
sell the Bruma property
without her involvement. The applicant avers
that the first respondent informed a different estate agent that a
divorce settlement
agreement had already been finalised and that as
the property is registered only in his name, he retains the property
as his exclusive
property. Again, absent a contrary version, the
applicant’s version must be accepted. Notably this
misrepresentation by the
first respondent to the estate agent is
after undertakings were sought by the applicant on 3 September
2021 in relation to
the Bruma property in order to protect her
position.
22.
The applicant has established three
uncontested incidents which demonstrate that the first respondent has
no regard for the constraints
placed upon him in terms of section 15
of the Act in dealing with property that forms part of the joint
estate. Notwithstanding
the first respondent’s attorney’s
submissions that there is no prospect that a transaction can take
place contrary
to section 15 and that the relief sought by the
applicant is unnecessary and is not urgent, the uncontested evidence
shows
that this already took place in relation to the registering of
the excessive mortgage bond and that the first respondent persists
in
his conduct in seeking to deal with the Bruma property without the
applicant’s necessary consent.
23.
This is fortified by the first respondent’s
erstwhile attorney’s response on 10 September 2021 to the
applicant’s
attorneys request for undertakings. The response is
predicated upon the basis that the first respondent can engage in
selling the
Bruma property provided that the proceeds thereof are
held by a conveyancer in trust. But this misses the point. The first
respondent
cannot sell the property in the first place without the
applicant’s consent and it is not simply a matter of the sale
proceeds,
if sold, being retained in trust. For example, the
applicant has a real and substantial interest in the purchase price
for which
the property is sold, and the terms of that sale. The
response is further demonstrative of a mindset on the part of the
first respondent
that he is entitled to deal in the Bruma property
without the applicant’s consent, albeit that the proceeds are
to be retained
in trust. The first respondent’s present
attorney, perhaps realising this difficulty, in argument described
this response
as superfluous as it was, he submitted, legally
impossible in any event for a sale to take place contrary to the
constraints in
section 15 of the Act. I have already rejected
this submission.
24.
I also find that the applicant, in her
uncontested version, has established the same well-grounded
apprehension in relation to the
first respondent dealing with his
pension fund benefits or interests without her consent as required in
terms of section 15(3)(b)(i)
of the Act. Similarly, the first
respondent’s attorney sought to assert that it would be
impossible for the first respondent
to deal in his pension interests
or benefits without the consent of the applicant because the
applicant’s attorneys had written
to the second respondent’s
fund administrator seeking that a note be made that the first
respondent be precluded from withdrawing
his benefit to the detriment
of the applicant and to which the fund administrator responded. But
that response is ambivalent, which
simply acknowledges receipt of the
request, noting its contents. That the consent required in terms of
section 15(3)(b)(i) is oral
rather than written, also adds to the
reasonable apprehension. The applicant has demonstrated that the
respondent has no qualms
in misrepresenting his marital status, such
as estate agents.
25.
On 26 August, 3 September and 13 September
2021 the applicant asked for undertakings from the first respondent
that he would not
deal in his pension benefits/ interests without her
consent but no such undertaking was forthcoming. Such partial (and
unsatisfactory)
undertaking as was forthcoming, on 10 September 2021,
was limited to the Bruma property, and avoided dealing with the
pension benefits
/ interests.
26.
I am persuaded that there is a
well-grounded apprehension that the first respondent may conduct
himself to the applicant’s
prejudice in relation to the joint
estate’s assets and that a sufficient case of urgency has been
established. I also am
persuaded that the truncation by the applicant
of the usual periods for the exchange of affidavits and the enrolment
of the application
for hearing on the Tuesday chosen by the applicant
is commensurate with the degree of urgency.
27.
What remains to be considered is whether
the applicant has established the requirements for interim relief.
28.
The requirements for an ordinary interim
interdict are well-known:
28.1.
the
existence of a
prima
facie
right,
although open to some doubt;
[2]
28.2.
a well-grounded apprehension of irreparable
harm if the interim relief is not granted and the ultimate relief is
granted;
28.3.
the balance of convenience favours the
granting of the interdict;
28.4.
the
absence of a suitable alternative remedy.
[3]
29.
There is no dispute that the assets in
respect of which the interim relief is sought are those falling
within the joint estate.
Accordingly, the applicant and the first
respondent are co owners of the assets falling within the joint
estate, including
the immovable property. It follows that the
applicant is entitled to protect her proprietary right as co-owner in
the joint estate’s
assets, including the immovable property.
30.
While the position in relation to first
respondent’s pension benefits or interests may be more nuanced
as they may have not
yet vested (an aspect that the urgency of the
matter does not permit to be more closely examined), the applicant
nevertheless has
a sufficient interest in relation to her entitlement
to share in those pension benefits and interests that the
prima
facie
right she seeks to protect is of
a quasi-proprietary nature.
31.
As
the nature of the applicant’s right that she seeks to protect
is of a proprietary and quasi-proprietary nature, as the
case may be,
it is unnecessary for the applicant to demonstrate irreparable harm
if the interim relief is not granted (as such
harm is presumed) or
that there is no other satisfactory remedy.
[4]
32.
In any event, as described above, the
applicant has demonstrated a well-grounded apprehension of
irreparable harm if the interim
relief is not granted. So too is
there no suitable alternative remedy. As already discussed above, it
does not follow that if an
impugned transaction occurs, that
transaction can be set aside as against a
bona
fide
third party.
33.
Section 15(9)(b) of the Act provides that
when a spouse enters into a transaction with a person contrary to the
provisions of subsections
15(2) or of the Act, and that spouse knows
or ought reasonably to know that he probably will not obtain the
required consent, and
the joint estate suffers a loss as a result
thereof, the appropriate adjustment can be made in favour of the
other spouse upon
the division of the joint estate. Thus remedy is
cold comfort if there is insufficient property in the joint estate to
make such
adjustment when division is ordered. The applicant states
under oath that the immovable property, together with the benefits /
interest in the pension fund, are the major assets in the joint
estate. If the immovable property is disposed of, particularly at
a
low market value or if the proceeds are dissipated by the first
respondent, there may be insufficient assets in the joint estate
to
make the appropriate adjustment.
34.
Jacqueline
Heaton in
The
Law of Divorce and Dissolution of Life Partnerships in South
Africa
[5]
writes
that one of the requirements for an interdict is that a suitable
alternative remedy must not be available and that for this
reason the
innocent spouse will have to prove that his or her right to
adjustment on divorce in terms of section 15(9)(b) of the
Act does
not afford a suitable alternative remedy, for example, because the
joint estate would be depleted if the threatened alienation
took
place. In my view, this may overlook that it is unnecessary to
demonstrate a suitable alternative remedy when the right that
the
applicant seeks to protect by way of the interim interdict is of a
proprietary or quasi-proprietary nature, as in the present
instance
case.
35.
Insofar as the remaining requirement
whether the balance of convenience lies in favour of granting the
interim interdict, the first
respondent is in any event not to act in
a manner contrary to section 15(2) and (3) of the Act. The first
respondent has not
filed an answering affidavit setting out what
prejudice he may suffer should he be restrained in the manner sought
by the applicant.
36.
The applicant has accordingly established
the requirements for an interim interdict.
37.
The form of relief sought by the applicant,
particularly in prayer 2.1 of the notice of motion is not
confined to assets that
fall within the ambit of section 15(2) and
(3). The restrictions upon a spouse in dealing with joint estate
assets as provided
for sections 15(2) and 15(3) do not relate to
all and any assets of the joint estate. I do not understand the case
as made
out in the founding affidavit to be directed at all the
assets of the joint estate, but rather at those assets where consent
is
required under section 15, including the Bruma property and
the pension benefits / interests. This is to some extent borne
out by
the reference in the relief in prayers 2.1 and 2.2 to section 15
of the Act. I therefore intend limiting the interim
relief to those
assets falling within the ambit of sections 15(2) and (3).
38.
The applicant seeks in prayer 2.4 of the
notice of motion that the first respondent is interdicted and
restrained from receiving
any proceeds from the sale of the immovable
property without the knowledge and prior written consent of the
applicant. As stated
above, this risk should not arise once the
relief is granted as the immovable property cannot be sold in the
first instance. Nonetheless,
I will accede to granting this relief,
as it is not altogether clear whether or not a sale may already have
been concluded in the
meanwhile in respect of the immovable property.
Although the first respondent in his rule 6(5)(d)(iii) notice
says that he
does not intend to sell the property, this is not said
under oath.
39.
The question of costs remains. The
applicant seeks costs on an attorney and client scale by reason
inter
alia
of the first respondent’s
refusal to give suitable undertakings. In my discretion, a costs
order on the ordinary scale will
suffice. The first respondent’s
attorney’s submissions that relief was not required as there is
sufficient protection
in section 15 of the Act was not entirely
without merit and especially where there is at least some academic
support for the
view that the protections afforded by section 15
may constitute a suitable alternative remedy that might preclude the
grant
of interim relief. Although I have expressed my reservations on
that aspect, it nonetheless exists. The applicant by launching the
proceedings has also brought the first respondent to court, and so
his opposition to the proceedings must not be viewed from an
overly
jaundiced perspective.
40.
The following order is made:
40.1.
The first respondent is interdicted and
restrained:
40.1.1.from
alienating, encumbering, ceding, disposing or selling any immovable,
movable, incorporeal and corporeal assets of the
joint estate that
falls within the ambit of
sections 15(2)
and
15
(3) of the
Matrimonial
Property Act, 1984
;
40.1.2.from
claiming, withdrawing or receiving any monies due or accruing to him
from his pension fund/interests held with the second
respondent;
40.1.3.from
alienating or in any manner whatsoever encumbering the immovable
property described as Sectional Title Unit 17, Scheme
Number [....],
SS B[....] Close, Bruma 24, City of Johannesburg, Gauteng (“the
immovable property”), without the knowledge
and prior written
consent of the applicant;
40.1.4.from
receiving any proceeds from the sale of the immovable property
without the knowledge and prior written consent of the
applicant.
40.2.
The second respondent
is directed to forthwith note the interdict against, and in respect
of, the first respondent’s pension
interest/fund/benefits so as
to reflect and give effect to the restrictions provided for in this
order.
40.3.
The third respondent
is directed to forthwith note the interdict against the immovable
property so as to reflect and give effect
to the restrictions
provided for in this order.
40.4.
The first respondent
is directed, to the extent that same may be required, to provide his
full and timely co-operation for purposes
of noting the interdict
against the immovable property, failing which the Sheriff of the
court in whose jurisdiction the immovable
property is located is
directed and authorised to provide such cooperation in the first
respondent’s place and stead.
40.5.
The interdicts
granted in terms of those order are to remain in force until final
judgment has been granted in the divorce action
proceedings or until
the parties agree otherwise.
40.6.
The first respondent
is to pay the costs of the application.
B
M Gilbert
Acting
Judge of the High Court
Date
of hearing:
5 October 2021
Date
of judgment:
6 October 2021
Counsel
for the Applicant:
Ms A Saldulker
Instructed
by:
Coetzee Martinuzzi Attorneys
Bedfordview
Counsel
for the First Respondent:
Mr L E Thobejane (Attorney)
Instructed
by:
Botha Massyn & Thobejane Attorneys
Kempton Park
[1]
Boxer
Superstores Mthatha and another v Mbenya
2007
(5) SA 450
(SCA) at 452F-G.
[2]
Webster
v Mitchell
1948
(1) SA 1186
(W) at 1189.
[3]
Setlogelo
v Setlogelo
1914
AD 221
at 227.
[4]
Erasmus
Superior
Court Practice
RS 13,
2020, D6-21, 22 and the authorities there cited.
[5]
Juta
(2014) at pp 110-111.