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[2018] ZALMPPHC 65
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M.O.M v M.M and Others (HCA30/2017) [2018] ZALMPPHC 65 (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:
M
O
M

APPELLANT
IDENTITY
NUMBER: [….]
and
M
M

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.: 402092369997
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 402092369997 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 M M (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 402092369997”
[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(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, provided the alienation
is with value.
[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
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.
[57]
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.
[58]
I am
in agreement with the court
a
quo
that i reliance placed 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.
[59]
I
agree that appeal should be upheld with costs.
I
also agree with the order proposed by M.G Phatudi J.
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
1982
(2) SA 179
(TPA) 188A.
[19]
In
Cronje
NO v Paul Els Investments (Pty) Ltd
supra
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 Durban 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.
Section 15(3)(c) however requires that the alienation
of assets must
for value.
[23]
There is no
evidence that the deceased executed a will with the first respondent
named as a beneficiary.