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[2018] ZALMPPHC 57
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Mogola v Mogola and Others (HCA30/2017) [2018] ZALMPPHC 57 (19 October 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCA30/2017
In
the matter between:
MANKOPANE
OTHARNIA MOGOLA APPELLANT
IDENTITY
NUMBER: […]
and
MAHLOGONOLO
MOGOLA FIRST
RESPONDENT
IDENTITY
NUMBER; […]
NEDBANK SECOND
RESPONDENT
THE
MASTER OF THE HIGH COURT THIRD
RESPONDENT
(LIMPOPO
HIGH COURT, POLOKWANE)
JUDGMENT
Order
On
Appeal
:
Appeal against the judgment of Semenya J sitting as court of first
instance.
The
appeal is upheld with costs.
Coram:
M.G
Phatudi J: ( Kganyago J, concurring)
A.
INTRODUCTION:
[1]
This
is an appeal against the Judgment and order of Semenya J sitting as
court of first instance. The appeal, in the main, orbits
around the
correct interpretation of the provisions of Section 15 (2) (c) of the
Matrimonial property Act, 1984
[1]
(“the Act”). The matter came on appeal with leave of the
court
a quo.
B.
FACTUAL
BACKGROUND:
[2]
The Appellant on 26 October 2016 (applicant in the
court
a quo)
launched
an urgent application against the present Respondents for a Rule nisi
interdicting the Second Respondent from paying out
the proceeds of a
fixed deposit otherwise alleged to be a donation investments, ([…]
held at Nedbank) which fixed deposit
was invested by one
Shemy
Abram Makawa
, now
deceased (“the deceased”) in the name of the First
Respondent pending finalization of the relief sought in Part
B.
2.1.
The Appellant in Part B sought a declaratory order in terms of which
the fixed deposit or donation investment referred to above,
be
declared null and void, and further that, the relevant investment be
paid by the First Respondent into the deceased estate reported
to the
Third Respondent under Estate No: 7132/2015. The Appellant also
prayed for costs of application on party and party scale.
2.2. The relief sought in
Part A of the application be granted provisionally pending the return
day of the
Rule nisi
.
2.3.
The
Court
a quo
in its judgment delivered on 19 May 2017, discharged the provisional
order granted on 03 November 2016, and dismissed the application
with
costs.
[2]
2.4. It was the order and
the judgment of Semenya J that gave rise to the issues of proper
interpretation of Section 15 (2) (c)
of the Act which appears to be
res nova
in our legal literature. I consider it
apposite therefore to set out a rubric in order to throw light on the
matter.
C.
THE FACTS:
[2]
The Appellant averred in her founding
affidavit that she and the deceased were lawfully married to each
other in community of property
on 11 April 1986. Their marriage was,
however, dissolved upon the deceased’s death on 25 September
2015.
[3]
Prior to his demise and during the
currency of their marriage, the deceased invested as a donation an
amount of Eight Hundred Thousand
rand (R800 000.00) in the name
of the First Respondent, his niece. The said investment was initially
made at First National
Bank (“FNB’) and as it generated a
minute interest, the deceased subsequently transferred it to the
Second Respondent.
This transaction, according to the First
Respondent’s answering affidavit, happed when the Appellant and
the deceased were
extra – judicially estranged from each other.
[4]
The Appellant, in support of Part A
of the application contended that the said donation investment which
was fixed as a deposit
at FNB, was made and transacted without
her knowledge and consent in contravention of Section 15 (2) (c
) of the Act.
I propose to revert to the provisions of this section
in the course of this judgment.
[5]
It
was submitted further that after the deceased’s death, and on
29 January 2016, the Appellant was appointed an executrix
by the
Third Respondent to administer her late husband’s estate. Her
appointment as executrix of the deceased’s estate
was effected
in terms of Letters of Executorship annexed to the founding
affidavit.
[3]
[6]
According to her, she only became aware of the existence of the
investment referred to after she has had sight into the deceased’s
banking statements for which he received monthly interest in the
amount of R5 343.00 from the Second Respondent. Possessed
with
these statements, and after certain enquiries, the Appellant was
furnished with a copy initiating the investment account better
described as “donation investment” in the amount of
R800 000.00 which was in a form of a fixed deposit product.
Its
maturity date as computed from its inception date on 01 November 2010
was 01 November 2011. The beneficiary of the investment
is the First
Respondent, who then was 14 years old.
[7]
I hasten to remark that when the
deceased initiated the investment in favour of the First Respondent
as a beneficiary, the parties’
civil marriage was still
in
esse
, but for
their extra-judicial separation during February 2011.
[8]
Prior to the parties’
estrangement, the Appellant alleged that she assisted the deceased
with “the administration side
of the business” as well as
in his taxi and used vehicle sale business”. Furthermore, in
2004, the parties jointly
invested an amount of R500 000.00 with
the Second Respondent, which was made in the deceased’s name.
D.
COMMON CAUSE
FACTS:
[9]
The following brief facts are common
cause :-
9.1
The Appellant and her deceased husband were civilly married to each
other in community of property on 11 April 1986, which marriage
was
dissolved upon his death on 25 September 2015.
9.2.
Before their separation and while cohabiting as husband and wife,
both parties invested an amount of R800 000.00 with
the Second
Respondent, (the people’s bank) a banking institution of which
the Appellant was an employee from 1998 until June
2016, when she
resigned. This fact is not denied by the First Respondent in her
Answering affidavit.
9.3
The Appellant was duly appointed Executrix of the deceased’s
estate on 29 January 2016.
9.4
The deceased died on 25 September 2015 after he was allegedly shot
and killed.
9.5
The parties became estranged in February 2011.
9.6
Out of this wedlock, 2 children were born.
9.7. The First Respondent
does not deny that the subsequent transferred investment account in
dispute had been opened by the deceased
in her favour.
E.
LEGAL
FRAMEWORK
:
[10]
I consider it plausible to mention
although orbiter that Chapter II
of
the Act contains provisions abolishing marital power previously
located in the common law. Section 11 (1), in particular, provides
as
follows:-
Section
11 (1):
“
The
common law rule in terms of which a husband obtains the marital power
over the person and property of his wife is hereby abolished
.”
[11]
Chapter III, which is relevant in the
instant matter, provides for equal powers of spouses married in
community of property. The
provisions of Chapter III apply to every
marriage in community of property regardless of the date on which
such marriage was solemnized.
That
said, it follows that both spouses whose matrimonial regime is one in
community of property enjoys the
same
powers with regard to the disposal of assets of the communal estate,
debt and other contractual matters that might bind the
joint estate,
and its general management.
[4]
.
This
power is, however, not entirely unfettered so as to curb one spouse
from making profligate decisions.
[12]
Furthermore, Section 15, empower a
spouse within a marriage in community of property to perform
any
juristic act
pertaining to the communal estate
without
the consent of the other spouse
,
subject of course, to the limitations of subsection 15 (2); (3) and
(7) of Section 15. It is with one of the limitations in Section
15(2)
(c) that this matter is concerned.
[13]
The important exception or proviso
in
casu
to the aforementioned
empowering
Section 15 (1) is that “such a spouse shall
not
without the
written consent of the other spouse – (own underlining)
(a)
………………………
.
(b)
………………………
.
(c)
“
Alienate,
cede, or pledge any shares, stock, debentures 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”
[5]
[14]
I must mention, as a point of
departure, that many of past case
law,
did not authoratively pronounce specifically on the proper
interpretation of this provision, in particular, on the power if
any
of a spouse to alienate or otherwise encumber those investments
or perform any juristic act specified in section 15(2)
( c), “
by
or on behalf of the spouse
”
in a financial institution, which investments
forming
part of the joint estate.
It
is the words “any investment by or on behalf of the other
spouse,” in a financial institution “forming part
of the
joint estate,” that require closer scrutiny as the notion
present not only juridical interpretational difficulty,
but also
raise a legal novelty on this aspect of the law.
[15]
It is trite law, that “when
interpreting any legislation and when
developing
the common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill
of Rights”
[6]
In other words, the spirit, purport and objects of the phrase denotes
the values which underpin the constitution and its objectives
as a
whole. What therefore Section 39 (2) seeks to potray, is that all
statutory enactments must be interpreted through the prism
of the
Bill of Rights enshrined in the constitution.
[16]
Section
15 (2), properly construed, clearly attach a proviso to Section 15
(1) and the powers it confers on a spouse when perfoming
certain
juristic acts. Section 15 (2) accordingly requires that the caveat
set out be examined as to what its true function and
effect is. The
proper approach to the interpretation of a rider is “the effect
of an excepting or qualifying proviso, according
to the ordinary
rules of construction, is to except out of the proceeding portion of
the enactment, or to qualify something enacted
therein, which but for
the proviso would be within it, and such proviso cannot be construed
as enlarging the scope of an enactment
when it can be fairly and
properly construed without attributing to it that effect.
[7]
[17]
Turning to the facts in the present
matter, as already indicated, the First Respondent does not deny the
fact that while the Appellant
and her late husband cohabited together
under the same roof, they in 2004 jointly invested and made as a
capital injection of an
amount of R800 000.00 into a financial
institution, the second Respondent. This investment was made
in
the decease’s name by the parties
jointly, nor was it deposited “on behalf of the other spouse,”
either. It, therefore, becomes necessary to trace the
primary source
of this investment as jointly made by the parties.
[18]
The primary source of the initially
invested fixed deposit made in 2004 derived, in my view, from the
joint estate of the parties.
It was only on 01 November 2010 that the
deceased without the knowledge or written consent of the Appellant,
that the initial fixed
deposit was transformed into a “donation
investment” in favour of the First Respondent with an interest
rate of 5.30%
per annum, with maturity date on 01 November 2011,
subject to further re-investment guaranteed on 05 November 2016 for
payment.
[19]
It
was this alienation by the deceased of the fixed deposit made by the
parties jointly in 2004, that offends the proviso contained
in
Section 15 (2) (c). The deceased in performing this juristic act by
alienating the fixed deposit from the joint estate in November
2010,
without express written consent in favour of the First Respondent
was, in my view, a flagrant violation of Section 15 (2)
(c). Such a
transaction, needless to say, was intended to undermine the parties’
equal entitlement to the future regulation
or disposal of the
investment as an asset they both deposited by way of fixed deposit
forming part of the joint estate. By the
same token, whether the
deceased framed it a “donation investment”, is neither
here nor there. What remains is that
such a donation falls within the
prohibited ambit of Section 15 (3) (c). The navigation from the
parties’ fixed deposit,
albeit in the deceased’s name,
but made jointly by the spouses within the context of their marriage
to the names of the First
Respondent, was in my opinion made probably
to unreasonably prejudice the (financial) interest of the other
spouse in the joint
estate…”
[8]
)
(Insertion is own emphasis)
[20]
That said, I am of the view that the
finding made by the court
a
quo
in paragraph 17
of the judgment that:-
“
Subsection
(7) of Section 15 permits one spouse to alienate a deposit in one’s
name at a building society or banking institution
without the written
consent of the other spouse”
was
a misconstruction of the relevant section and therefore misdirection
.
20.1
What Section 15 (7) permits is not alienation of fixed deposits but
alienation, cession or pledge of a “deposit”
held in
his/her name at a building society or banking institution which could
without consent of either spouse so alienated or
encumbered. There is
therefore a marked difference between alienation of a fixed deposit
without written spousal consent and an
ordinary deposit which
requires no spousal consent, the legal consequences of which should
be differentiated for the purposes of
proper interpretation of
Section 15 (2) (c).
[21]
Furthermore,
Semenya J’s finding that ‘the applicant’s reliance
on Subsection 2 (c ) is misplaced in that the
money was deposited by
the deceased on behalf of the First Respondent and not by or on
behalf of the applicant
[9]
and
proffered as a reason to have rejected the Appellant’s claim
was, once again, an error in law. This is particularly so
in that the
Learned Judge failed to have probed into the primary source of the
initial fixed deposit before it was without written
consent navigated
into a “donation investment”. As already shown, the fixed
deposit which in any event was not countervailed
by the First
Respondent, was sourced out of the spouse’s joint estate
therefore it was not far to seek it fell within the
prohibited
provisions in Section 15 (2) (c).
In
consequence, this court is at large to intervene and come to the
Appellant’s rescue in the appeal before us.
F.
CONCLUSION:
[22]
Having considered the facts in this
instance, and having reviewed the authorities which otherwise did not
settle the interpretation
of Section 15 (2) (c) under consideration
before us, and further that, we did not come across any caselaw that
specifically dealt
with and laid down precedent on the matter, it is
our view that the proper interpretation ought to be one laid down in
Paragraph
[19] of this judgment.
In
consequence, if I may propose and order, I would deem the following
order appropriate:-
(a)
The appeal is upheld
with costs.
(b)
The judgment and order
of the court
a quo
is set aside and is substituted with the following Order:-
(i)
The fixed/donation
investment with investment/investor No.: […] made by the
deceased (Mr Shemy Abram Makuwa) in the name
of the First Respondent
with the Second Respondent is declared null and void;
(ii)
The said fixed
deposit/donation investment be and is ordered to be paid into the
Estate late Shemy Abram Makuwa No.: 7132/2015,
with immediate effect.
(iii)
That the costs of the
application be paid by the First Respondent.
___________________
M.G
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION
I
agree
_______________________
M.F
KGANYAGO
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION
Muller J:
[23]
I
have had the privilege of reading the judgment prepared by MG Phatudi
J in this matter. I regret that I do not agree with his
interpretation of or the applicability of section 15(2)(c) of the
Matrimonial Property Act.
[10]
[24]
The
appellant instituted an urgent application in two parts against the
first respondent in whose name a fixed deposit of R800 000.00
was
held at the second respondent (Nedbank). The first respondent opposed
the application. In Part A the appellant claimed an interim
interdict
restraining the second respondent from paying out the proceeds of the
fixed deposit which was taken out by the spouse
[11]
of the appellant pending finalization of the main application as set
out in Part B of the notice of motion which was granted by
Ndlokovane
AJ on 1 November 2016.
In Part B of the notice
of motion the appellant sought an order in the following terms:
“
1.
That the fixed deposit/donation investment with investment/investor
number […] made by the late Shemy Abram Makuwa in
the name of
the first respondent with the second respondent be declared null and
void
2 That the said fixed
deposit/donation investment be paid to the deceased estate of Shemy
Abram Makuwa estate number 7123/2015.
3. That the costs of this
application be paid by the first respondent on party and party
scale.”
[25]
On 19 May 2017 Semenya J dismissed
the application under Part B and discharged the interim order with
costs. Leave to appeal was
granted by the learned Judge to the full
court on 29 June 2017.
[26]
The salient background facts are that
appellant and the deceased married each other on 11 April 1996 in
community of property. The
marriage was dissolved as a result of the
untimely death of the deceased on 25 September 2015. The appellant
was duly appointed
as the executrix in the deceased estate on 29
January 2016. There are three major children born of the marriage.
[27]
The deceased and the appellant
invested an amount of R500 000.00 in 2004 with the second respondent
in a fixed deposit account.
The marriage relationship became strained
which caused the appellant to move out of the marital home during
2011.
[28]
After the burial of the deceased the
appellant obtained copies of his bank statements as well as a Nedbank
application form for
a fixed deposit of R800 000.00 in the name of
Mahlogonolo Mogola (ID […]) (the first respondent) in a
“Donation Investments
–NMCF” account for a term of
12 months from 1 November 2010. The maturity date of the fixed
deposit was 1 November
2011. The interest earned over the twelve
month period is payable on date of expiry The appellant is of the
opinion that the investment
matured during 2009 and that the deceased
invested the proceeds of the investment to which he added an
additional amount of money
to have enabled him to investment an
amount of R800 000.00 in a fixed deposit account in the name of the
first respondent. The
deceased signed the application form and also
supplied his contact details
ex
facie
the
application document.
[29]
The proceeds of the fixed deposit of
2010 after it matured in 2011 were again re-invested in a fixed
deposit account in the name
of the first respondent for a period of
five years with a maturity date of 5 November 2016.
[30]
The
entries in the bank statement attached to the papers indicate that
the bank account
[12]
of the deceased which is held by the second respondent were credited
with the amounts of R5 343.44 on 5 September 2015 and the
amount of
R5 171.07 on 5 October 2015. His account was credited with funds
described as:
“
INT
EASYACCESS […]”
[31]
I pause here to add that there is no
dispute that the second respondent confirmed that the money invested
in the “Donation
Investment” fixed deposit account was
re-invested for a period of five years in 2011 and that the deceased
had received monthly
payment from the latter investment.
[32]
The first respondent did not dispute
that the parties were married in community of property and admitted
receipt of an amount R800
000.00 which she claimed the deceased
bequeathed to her and which was invested in her name with the consent
of the appellant for
her future education. The first respondent
stated that she was the niece of the deceased and that it was common
knowledge that
the deceased intended to donate the amount of R800
000.00 to her. It was contended by the first respondent because the
deceased
intended to exclude the amount from the joint estate the
said fixed deposit does not form part of the joint estate.
[33]
In reply the appellant denied that
she had any knowledge of the investment in the name of the first
respondent until after the death
of the deceased. The appellant
contended that the investment falls foul of the provisions of section
15(2)(c) and 15(3) of the
Act.
[34]
The
Act introduced a new legal regime in terms whereof both spouses in a
marriage in community of property were granted the same
powers which
previously vested in the husband alone with regard to acquiring, and
disposal of assets and the management, generally,
of the joint
estate. In the previous dispensation the husband had the marital
power to deal with assets forming part of the joint
estate and was
able to dispose and donate assets belonging to the joint estate to
third parties to the prejudice of the wife. Notwithstanding
the
powers afforded to both spouses in terms of the Act, the power of the
spouses is limited by section 15(2) and (3). The existing
law, as
governed by the Act, was explained in
Strydom
v Engen Petroleum Ltd
[13]
as follows:
“
The
starting point under section 15(1) is that either 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.
That right is however made subject to the limitations
of contained in
ss 15(2) and (3), which impose the requirement of the consent of the
other spouse, written in the cases described
in s 15(2), but not in
the cases described in s 15(3), in order to undertake certain
financial transactions.”
[14]
[35]
It must be accepted as a starting
point, therefore, that the deceased was perfectly entitled to utilize
money of the joint estate
to make a fixed deposit in his name at a
banking institution with or without the prior approval of the
appellant. The first fixed
deposit was made in 2004 with the
concurrence of the appellant. However, when the term of that fixed
deposit expired, the deceased
without the consent of the appellant
utilized the proceeds together with an additional amount and invested
the money in further
fixed deposit for a period of twelve months but
on this occasion in the name of the first respondent.
[36]
I do agree with MG Phatudi J that the
money invested in the fixed deposit in 2004 was the primary source
for the fixed deposit in
the name of the first respondent in 2010.
However I do not agree, with respect, that the 2010 fixed deposit
transformed the initial
fixed deposit into a donation investment in
contravention of section 15(2)(c) and 15(3)(c) of the Act. He held
that the deceased
alienated the fixed deposit in the name of the
first respondent from the joint estate in November 2010 without the
consent of the
appellant.
[37]
A
fixed deposit during it currency cannot be transformed from a loan
into a different contract or be transformed to the extent that
one
party is substituted by another unless the parties to the contract
performed some juristic act to bring such a change about.
[15]
There is no evidence that the deceased at any time approached the
second respondent to bring such a transformation about or that
the
second respondent has done so.
[16]
[38]
There is, in my mind no doubt
whatsoever that the fixed deposit contract concluded in the name of
the deceased came to an end when
it expired and debt was discharged
by the second respondent. The proceeds of the expired fixed deposit
were then re-invested in
another fixed deposit in the name of the
first respondent. Put differently: it is the money received the fixed
deposit when it
expired that is re-invested on each occasion, not the
fixed deposit as such.
[39]
Section 15(2)(c) reads:
“
2
Such a spouse shall not without the written consent of the other
spouse-
(a)….
(b)….
(c) alienate, cede or
pledge any shares, stock, debentures, debenture bonds, insurance
policies, mortgage bonds, fixed deposits
or similar asserts, or any
investment by or on behalf of the other spouse in a financial
institution, forming part of the joint
estate;”
[40]
Section 15(2)(c) is directed at a
spouse who wishes to alienate, cede or pledge a current fixed deposit
in the name of the other
spouse without his/her consent. The
deceased, on the evidence, never on any occasion, alienated, ceded or
pledged, to the first
respondent, a fixed deposit held in the name of
the appellant. The first deposit was in the name of the deceased. It
was the proceeds
of that fixed deposit, which were used to make two
further successive fixed deposits in the name of the first
respondent. Section
15(2)(c) on the evidence presented cannot come to
the assistance of that appellant.
[41]
However, section 15(7)(b)(i)
provides:
“
Notwithstanding
the provisions of subsection (2) (c), a spouse may without the
consent of the other spouse –
(b) alienate, cede or
pledge –
(i) a deposit held in his
name at a building society or banking institution.”
[42]
Neither
the appellant nor the second respondent adduced any evidence that the
deceased alienated ceded or pledged a fixed deposit
held in his name
to the first respondent or anyone else.
[17]
Indeed the proceeds of the fixed deposit were used to enter into
contracts of loan subsequent to the second respondent discharging
the
debts in terms of those fixed deposits. It follows, therefore, that
section 15(7)(b)(i) similarly, cannot find application
in the present
circumstances.
[43]
The first respondent, as stated
earlier, contended that the deceased donated the amount of R800
000.00 to her to pay for her future
education and also that the
deceased intended that the amount so donated be excluded from the
joint estate.
[44]
Section 15(3)(a) and (c) states:
“
A
spouse shall not without the consent of the other spouse-
(a) alienate, pledge or
otherwise burden any furniture or other effects of the common
household forming part of the joint household.
(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 section”.
[45]
A spouse may, with the acquired
consent, donate or alienate assets from the joint estate which do not
and probably will not unreasonably
prejudice the interest of the
other spouse in the joint estate and which is not an alienation of a
mortgage, burden with a servitude
or conferral of any real right in
any immovable property forming part of the joint estate contrary to
the provisions of section
15(2)(a). However, terms of the proviso
contained in section 15(3)(c) consent from the other spouse is not
necessary in respect
of assets that are excluded from the joint
estate.
[46]
The
Act contains no definition of the concepts “alienate” and
“donate.” The word “alienate”
generally
refers to an act in terms of which ownership is transferred.
[18]
The
Collins
Concise Dictionary
defines “alienate” “to transfer the ownership of
(property etc.) to another person”.
[19]
[47]
Section 15(3)(c) refers donations of
assets of the joint estate to third parties or the alienation of such
assets to third parties
without any value.
[48]
A
donation can be described as an agreement which has been induced
solely by beneficence whereby a person under no legal obligation
undertakes to give something (either directly or indirectly) in
return for which the donor receives no counter-performance nor
expects any future advantage.
[20]
Any payment purporting to be made in discharge of an existing
obligation is in effect a donation if no obligation exist to make
such payment.
[21]
[49]
There
is no reason to give section 15(3)(c) a narrower interpretation than
the ordinary meaning of the words “donation to
another person…
or alienate such asset without value” The section should be
given a generous interpretation. In the
context of section 15(2) and
(3) “alienate” should be interpreted to refer to every
act in terms whereof a spouse parts
with assets of the joint estate
whether corpus, a sum of money, or a right of action.
[22]
[50]
Section 15(8) comes into play if it
has been established that an asset belonging to the joint estate has
been donated or alienated
without consent. It provides:
“
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.”
[51]
The court is tasked with the duty to
determine whether the donation or alienation does not or will not
prejudice the interest of
the other spouse by taking into account the
factors mention in section 15(8). The court is vested with a wide
discretion and may
take any other factor into account which in the
opinion of the court is relevant.
[52]
In my judgment the money used to make
a fixed deposit in 2010 by means of the application attached to the
papers in the name of
the first respondent was money which belonged
to the joint estate and as such was an asset of the joint estate. It
is the evidence
of the first respondent that a fixed deposit was made
as a consequence of a donation in an amount of R800 000.00 to the
first respondent
as a gift to pay for her future education. The
application form is not evidence of the donation but is evidence a
fixed deposit
in the amount of R800 000.00 in the name of the first
respondent.
[53]
Despite
the
prima
facie
evidence of the fixed deposit
ex
facie
the
application, I am nevertheless unconvinced that a donation of the
amount of R800 000.00 to the first respondent was intended
or that
the deceased indeed donated the money to the first respondent. It has
been established that the deceased received monthly
interest payments
into his bank account from the Easyacess account each month. If the
deceased indeed donated such a large sum
of money to the first
respondent for her future education she, not the deceased, would have
been entitled to the interest that
accrued from the fixed deposit.
The first respondent also stated that the said amount was bequeathed
to her by the deceased.
[23]
That statement cannot be accepted as correct simply because the
deceased was alive at the time the fixed deposits were made. The
probabilities point to the deceased using an asset of the joint
estate to fraudulently making a fixed deposit in the name of the
first respondent with the intention to deprive the appellant and the
joint estate of an asset of considerable value for his own
benefit,
using his young niece, who was a minor at the time, to cover in his
fraudulent scheme.
[54]
Her evidence that the deceased
donated such a large sum of money to her (who was a minor) for her
education and that the appellant
was aware of the donation together
with her acquiescence, when the appellant had her own family to
consider, is in my view totally
improbable, false and is rejected.
[55]
For this reason the fraudulent
donation of the amount of R800 000.00 to the first respondent was for
an unlawful purpose and is
null and void.
[56]
In the event that I am wrong in my
assessment of the evidence as stated above, the provisions of section
15(8) must be considered
to establish whether the asset of the joint
estate which was donated or alienated was excluded from consent from
the appellant.
[57]
For that purpose the parties were
estranged for a lengthy period of time and a divorce in the near
future was a reality. It is not
an uncommon occurrence that spouses
endeavour in anticipation of divorce proceedings being instituted to
hide certain assets of
the joint estate. The deceased resorted to
fraud to hide a large amount of money from the appellant, and would
in all probability
have succeeded had he not met an untimely death.
Both parties were gainfully employed at the time and no doubt
maintained a reasonable
standard of living. The loss of such a large
amount from the joint of money unduly prejudiced the interest of the
appellant in
the joint estate. The deceased estate is also
prejudiced. In conclusion, it is my view that the deceased alienated
an asset of
the joint estate without consent which unduly prejudiced
the interest of the appellant in the joint estate which rendered the
alienation
null and void.
[58]
The court
a
quo
held that the
evidence of the appellant that the first fixed deposit in the name of
the deceased of R500 000.00 contradicted the
evidence of the
appellant that she discovered after the death of the deceased that he
had made a deposit in the name of the first
respondent in the amount
of R800 000.00. I disagree. The appellant simply explained that she
was aware that the deceased had made
a fixed deposit in his own name
and that she discovered after his death that when that fixed deposit
expired that he had made a
fixed deposit in the amount of R800 000.00
in the name of the first respondent.
[59]
I am in agreement with the court
a
quo
that any
reliance by the appellant on section 15(2)(c was misplaced. The
enquiry does not end there. The provisions of section
15(3)(c) could
not be overlooked as it was contended that the deceased donated a
large sum of money to the first respondent which
by all accounts
belonged to the joint estate and by doing so expressed his intention
to exclude the amount from the joint estate.
The court
a
quo
took too a
narrow view of the facts which, as a consequence, brought about a
failure to apply the provisions of section 15(3)(c)
to determine
whether the deceased made a valid donation or alienation, or whether
requirements of section 15(8) were met.
[60]
I agree that appeal should be upheld
with costs payable by the First Respondent.
___________________
G.C
MULLER
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION
REPRESENTATIONS:
1.
For the appellant: Ms M
de Klerk
c/o
DDKK Attorneys Inc
POLOKWANE
2.
For the 1
st
Respondent: Adv H.C Choma
Instructed
by B Maluleke Attorneys
SIBASA
3.
For 02
nd
and 03
rd
Respondent: No appearance
4.
Date heard: 10 August
20
5.
Date delivered: 19
October 2018
[1]
Act 88 of 1984, as amended
[2]
Paginated Index, P28, Vol I, Record.
[3]
Annexure “MOM” Paginated Index, P49, Record.
[4]
Section 14 of the Act. See, also Strydom v Engen Petroleum
2013 (2) SA 187.
Para: [5] on effect of abolition of the husband’s
mamus
over his wife married in community of property.
[5]
Section
15 (2) ( c) - It is the interpretation of these provisions that
forms the hardcore of the present – appeal.
[6]
Section 39 (2), The Constitution of the RSA, 1996 (Act 106 of 1996)
[7]
Passage quoted from Botha JA in Mphosi V Central Board for
Co-operative Insurance Ltd 1974 (4) SA . 633 (A) at 645E
[8]
Section 15 (3) ( c)
[9]
Paragraph [22] of the judgment of the
court
a quo
[10]
Act
88 of 1984 as amended (hereinafter referred to as “the Act”).
[11]
Hereinafter
called “the deceased”.
[12]
Account
number 2671066899 held at second respondent.
[13]
2013
(2) SA 187
SCA par 6.
[14]
Amalgamated
Banks of South Africa Bpk v De Goede en ‘n Ander
1997
(4) SA 66
(HHA) at 74B-E.
[15]
The
bank should play a part in so doing.
[16]
Exactly
how the transformation was brought about is unclear.
[17]
None
of the parties during argument suggested that he had done so.
[18]
Cronje
NO v Paul Els Investments (Pty) Ltd supra
188A.
[19]
In
Cronje
NO v Paul Els Investments (Pty) Ltd
1982
(2) SA 179
(TPA) at 187F-G
the
court referred to the
Shorter
Oxford Dictionary
description of alienate as “the action of transferring
ownership to another”.
[20]
Owens
PR “Donation” in
Joubert
WA Ed
The
Law of South Africa
Vol 8 (Butterworths 1979) 148 par 116. In
Avis
v Verseput
1943
AD 331
348
Watermeyer
ACJ with reference to Savigny‘s treatise on Roman Law stated
“that a donation to which the rules and restrictions
apply is
a transaction
inter
vivos
between donor and donee whereby the donee is enriched and the donor
correspondingly impoverished, such transaction being accompanied
by
an intention on the part of the donor at his expense to enrich the
donee.”
[21]
Estate
De Jager v Whittaker and Another
1944
AD 246
250-251.
[22]
Grobler
v Trustee Estate De Beer
1915
AD 265
272.
It
seems to me that the word “alienate” as used in section
15(3)(a) is restricted to the alienation of movables assets
such as
furniture and other effects which are part of the common household.
[23]
There
is no evidence that the deceased executed a will with the first
respondent named as a beneficiary.