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[2015] ZAFSHC 76
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Ntsoereng and Another v Sebofi and Another (4518/2012) [2015] ZAFSHC 76 (19 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: 4518/2012
In the matter
between:-
TEBOHO
VINCENT NTSOERENG
…..............................................................................
1
st
APPLICANT
MOHOKOANE
ANGELA NTSOERENG
…...................................................................
2
nd
APPLICANT
and
ANDRIES
HENRY SEBOFI
…......................................................................................
1
st
RESPONDENT
AE
FOURIE N.O (SHERIFF)
…..................................................................................
2
nd
RESPONDENT
JUDGEMENT:
MOENG
AJ
HEARD
ON:
19
FEBRUARY 2015
DELIVERED
ON:
19
MARCH 2015
[1] This is an
application for the rescission of a joinder order granted on 17
October 2013, in terms of which the second applicant
was joined as
second respondent in a Rule 46(1 )(a)(ii) application. Applicant also
seeks an order that the Rule 46(1 )(a)(ii)
order granted on 7 August
2014 , in terms of which the property described therein was declared
specially executable, be rescinded
and set aside.
[2]
The relevant facts can briefly be summarised as follows: the first
respondent was the plaintiff in the main action whereas the
first
applicant was the defendant. First respondent issued summons against
the first applicant during November 2012 and resultantly
obtained
default judgment in his favour after the latter failed to defend the
action. A writ of execution against the first applicant’s
movable property was obtained but a
nulla
bona
return
was issued by the Sheriff. The first respondent resultantly issued an
application in terms of Rule 46(1 )(a)(ii) to declare
the first
applicant’s immovable property specially executable.
[3] It was only
during the Rule 46(1 )(a)(ii) proceedings that it transpired that the
first applicant was married in community of
property to the second
applicant. This prompted the first respondent to issue an application
to join the second applicant as second
respondent to the Rule 46(1
)(a)(ii) proceedings. On 17 October 2013, an order by agreement was
granted by Monaledi AJ, joining
the second applicant as second
respondent to the Rule 46(1 )(a)(ii) proceedings and on 7 August
2014, Lekale J declared the immovable
property specially executable
in terms of Rule 46(1 )(a)(ii).
[4] The applicants
contend that both the joinder, as well the Rule 46(1 )(a)(ii) order,
was granted due to a mistake common to the
legal representatives of
both parties and the orders are as such rescindable in terms of the
court’s inherent powers under
the common law. They contend that
both parties were under the misapprehension that a writ of execution
against immovable property
could be issued against the second
applicant despite the fact that no judgment was entered against her.
They further contend that
the first respondent is guilty of
fraudulent conduct as judgment was obtained against the first
applicant in his personal capacity
whereas same should have been
obtained against T.V.N Transport and Projects CC. Mr Majola for
applicants argued that it was peremptory
that second applicant should
have been sued jointly with the first applicant in the main action.
He however abandoned the fraud
argument during deliberations.
[5]
It is trite that once judgment is given in a matter it is final and
it may only be altered on appeal. The Judge becomes
functus
officio
and
may not ordinarily, except in limited cases where judgment was
obtained by fraud or i
ustus
error,
vary
or rescind his own judgment. The crucial issue is whether there was a
mistake common to the parties which led to the joinder
and Rule 46(1
)(a)(ii) orders.
[6]
In
Tshivhase
Royal Council and Another v Tshivhase and
Another:Tshivhase and Another
v Tshivhase and Another
[1992] ZASCA 185
;
1992
(4) SA 852
(A) the following was stated with regard to a mistake
common to the parties:
‘
...there
must have been a 'mistake common to the parties'. I conceive the
meaning of this expression to be what is termed, in the
field of
contract, a common mistake. This occurs where both parties are of one
mind and share the same mistake; they are, in this
regard,
ad
idem
(see
Christie
Law of
Contract in South Africa
2nd
ed at 382 and 397-8). A mistake of fact would be the usual type
relied on. Whether a mistake of law and of motive will suffice
and
whether possibly the mistake must be reasonable are not questions
which, on the facts of our matter, arise.’
[7]
The mistake applicants rely on in
casu,
is
not a mistake of fact but of the law. The purported mistake relates
to the liability of the joint estate in a marriage in community
of
property where judgment was only obtained against one of the spouses.
According to Christie
Law
of Contract in South Africa
6
th
ed at 343, It has generally been regarded as settled that a common
mistake of law has no effect on the validity of a contract.
The
effect of this view in
casu
would
therefore lead to the conclusion that even if the parties were under
the mistaken belief that the joint estate was bound,
applicants
cannot get rid of their liability even if the legal position is
different from what they thought initially.
[8]
In
Hodqetts
Timbers (East London) (Pty) Ltd v HBC Properties
(Pty)
Ltd
1972
4 SA 208
(E), Kannemeyer J held at 213 that:
‘
It
is desirable, at this stage, to consider the legal position which
arises when parties to an agreement are mutually mistaken as
to its
legal effects. In
Sampson
v Union and Rhodesia Wholesale Ltd. (in Liquidation),
1929
AD 468
at p. 481, WESSELS, J.A., explained the position thus:
The general
proposition of law is that if you think the meaning of a clause is
such and such, you cannot get rid of your liability
when you discover
that the true legal meaning is different from what you thought, for
you cannot be heard to say you did not know
the law. And if the other
party innocently expresses his opinion that the legal meaning of the
clause is the same as you read it,
then if both put a wrong legal
construction on the clause you are still bound because the law is
presumed to be equally within
the knowledge of both parties.’
[9]
In contrast, Van Blerk JA in
Mouton
v Hanekom
1959
(3) SA 35
(A) at 39H-40A, permitted rectification for a common
mistake of law. If rectification can be allowed in such circumstances
then
an anomaly lies in the refusal not to permit rescission where
the parties languished under a mistake of law. (See Christie
Law
of Contract in South Africa
6
th
ed at 343). I should however pause to state that this aspect was not
raised by either party during deliberations or in their heads
of
argument, I will therefore for purposes of the facts at hand,
determine whether the purported mistake in law warrants rescission
of
the orders in question. What therefore has to be determined is
whether second applicant’s joinder and the resultant writ
of
execution against the immovable property was the result of an error
common to the parties as no judgment was obtained against
second
applicant. First respondent maintains that there existed no common
mistake relating to the legal position.
[10]
The judgment in
casu
was
obtained against the first applicant in his personal capacity and
although tbe applicants appear to take issue with the fact
that
judgment should have been obtained against T.V.N Transport and
Projects CC, and not the first applicant in his personal capacity,
the said judgment has not been rescinded and the Rule 46)(a)(ii)
order was granted on the basis of that judgment.
[11]
Mr. Cilliers correctly referred to
Bezuidenhout
v Patensie Sitrus
Beherend
Bok
2001
(2) SA 224
(E) that an order of a court of law stands until set aside
by a court of competent jurisdiction. Until that is done the court
order
must be obeyed even if it may be wrong
(
Culverwell
v Beira
1992
(4) SA 490
(W) at 494A - C). A person may even be barred from
approaching the court until he or she has obeyed an order of court
that has
not been properly set aside
(
Bvlieveldt
v Redpath
1982
(1) SA 702
(A) at 714). The first applicant was barred by an order
issued by Van Zyl J on 30 January 2014 from proceeding with the
application
for rescission of judgment until the first respondent’s
costs in respect of a previous application was paid within 21 days
from the date of service of the Taxing Master’s allocator.
These costs were not paid as aforementioned. Their attempted attack
on the validity of the default judgment in these proceedings is
therefore clearly aimed at raising an issue that has to be raised
in
the application for rescission, that they have been barred from
proceeding with until the costs have been paid.
[12] It is trite
that both spouses in a marriage in community of property have equal
powers with regard to the contracting of debts
which bind the joint
estate, and the management of the joint estate. A spouse in such a
marriage may perform any juristic act with
regard to the joint estate
without the consent of the other spouse. This, however, is subject to
the provisions of section 15(2)
and 15(3) of the Matrimonial Property
Act 88 of 1984 (“the Act”), which curtails the powers of
a spouse to bind the
joint estate single-handedly in respect of
certain specifically defined transactions. Even if a spouse binds the
joint estate contrary
to the provisions of the Act, and such a
contract can be regarded as void according to the normal principles
of the law of contract,
section 15 (9)(a) of the Act safeguards the
interests of such a bona fide third party if the provisions of the
subsection are complied
with. Such a third party will still be able
to hold the contracting spouse and the joint estate liable to the
contract.
[13]
One of the proprietary consequences of a marriage in community of
property is that, during the subsistence of such a marriage,
all the
liabilities of either spouse become the joint liability of both
spouses and therefore the joint estate. All the debts,
incurred by
either spouse, are therefore primarily debts payable by or out of the
joint estate. In fact, section 17(5) of the Act
explicitly states
that a third party can always institute proceedings against the
spouse who incurred the debt or both spouses
jointly may be sued
therefor. The main purpose of section 17(5) is therefore to safeguard
creditors who deal with spouses who,
unbeknown to those creditors,
were married in community of property. This section aims at avoiding
situations were defenses of
joinder or non-joinder, as in
casu,
will
be raised should action be instituted against the parties.
[14]The
defence raised by applicants’ in the matter at hand is similar
to the one raised in
BP
Southern Africa (Pty) Ltd v Vilioen en 'n
Ander
2002
(5) SA 630
(O) wherein the wife contended that she was not liable for
the debts owed by her husband, with whom she was married in community
of property, because she was never sued by the applicant and the
applicant had not obtained judgment against her. Hancke J held
that
it was clear from case law that the preferred view regarding the
liability of divorced spouses previously married in community
of
property for debts incurred during the marriage was that the spouse
who had incurred the debt was liable for the full amount
outstanding,
while the other spouse was liable for half the amount outstanding.
The wife was thus liable for at least half the
amount of the default
judgment obtained against the husband irrespective of the fact that
judgment was not obtained against her
in person.
[15]
If the principles enunciated in
BP
Southern Africa (Pty) Ltd v
Vilioen
en 'n Ander
supra,
are
applied in
casu,
and
being mindful of the fact that the applicants in
casu
are
not divorced, it is clear that a spouse married in community of
property need not be joined in an action where the other spouse
is
sued for the joint estate to be held liable for the debts incurred by
the ‘guilty’ spouse. It would in fact be absurd
to sue a
spouse that was not contractually or delictually liable to a
plaintiff.
[16]
Mr. Majola placed reliance on
Weeks
and Another v Amalgamate
Agencies
Ltd
1920
AD 218
that a third party’s goods cannot be taken in execution
or attached and that such an attachment and sale would be illegal.
Those facts are distinguishable from the facts in
casu.
The
parties in
Weeks
and Another
were
not married to each other and there existed no joint estate, but the
parties were private individuals.
[17]
The only conceivable reason why the second applicant was joined in
casu
was
because, as occupant and co-owner of the property, she had an
interest in the outcome of the Rule 46(1 )(ii) application. Where
an
order is sought to declare immovable property specially executable,
and that property is the home of a person, the court is
enjoined to
consider “all the relevant circumstances”. It was
therefore incumbent to join her. The sole object of the
joinder was
simply to establish whether her constitutional right to adequate
housing was breached by the order that first respondent
sought.
[18] Further
reliance was placed on the provisions of section 15(6) of the Act. It
was argued that the liability was incurred “in
the ordinary
course of first applicant’s business” and such liability
was not for the joint estate. This argument is
in my view
misconstrued. Section 15 of the Act deals with the powers of spouses
in a marriage in community of property, to perform
juristic acts with
regard to the joint estate, with or without the consent of the other
spouse. Subsection (6) accords to a spouse
acting in the ordinary
course of his business, the power to enter into transactions without
the consent of the other spouse. As
indicated above, the judgment has
been granted against the first applicant and still stands until set
aside by a court of competent
jurisdiction. Such a defence, if
meritorious, would best be raised in an application for rescission of
judgment.
[19] I will
therefore make the following order:
1. The application
is dismissed with costs.
L.B.J. MOENG, AJ
On behalf of the
applicants: Mr. NN Majola
Instructed by:
MAJOLA ATTORNEYS.
BLOEMFONTEIN
On behalf of the
respondents: Adv. HJ Cilliers
Instructed by:
SYMINGTON AND DE
KOCK
BLOEMFONTEIN