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[2009] ZAGPJHC 36
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Walljee and Another v Botto and Another (A5044/08) [2009] ZAGPJHC 36 (7 August 2009)
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NUMBER A5044/08
In
the matter between
RAYMOND
WALLJEE FIRST APPELLANT
CHARMAINE
WALLJEE SECOND APPELLANT
and
KENNETH
JOHN BOTTO FIRST RESPONDENT
CHARMANNE
ISABEL BOTTO SECOND RESPONDNET
______________________________________________________________
J U D G M E N T
VAN
OOSTEN J:
[1] At issue in this
appeal is the validity of an agreement of sale of an immovable
property (the agreement). The first appellant,
who is married to the
second appellant, purchased the property concerned from the
respondents in terms of a written agreement of
sale. Six months after
its conclusion the respondents relying on the provisions of s
15(2)(g) of the Matrimonial Property Act 88
of 1984 (the Act) sought
to resile from the agreement for want of the second appellant’s
consent to the transaction. The
appellants in the court
a
quo
launched an application in which they in essence sought to interdict
the respondents from alienating or disposing of the property
and for
transfer thereof in their name. The matter was argued before Mlonzi
AJ who dismissed the application with costs. The appeal
now serves
before this Court with leave of the learned judge.
[2] Although a number of
issues were raised and dealt with by the judge
a
quo
, it
is in the view I take of the matter only necessary to determine one
thereof which is the question whether the agreement is
one
contemplated by s 15 of the Act. The undisputed background facts
relevant to this issue are briefly these. The appellants were
married
to each other in community of property on 7 September 2002.
Subsequent to the conclusion of the marriage the appellants
applied
to this Court for an order to change the proprietary regime of their
marriage in terms of s 21 of the Act. The application
was successful
and pursuant thereto a notarial postnuptial contract was duly
registered on 22 August 2005. Prior to that on 1 April
2005 and while
the appellants were thus still married in community of property the
agreement was concluded. It is common cause
that the agreement was
concluded by the first appellant as purchaser without the written
consent of the second appellant as contemplated
in s 15 of the Act.
In terms of the agreement the first appellant purchased from the
respondents the immovable property more fully
described as Stand 605
Bez Valley, 225 and 225a Eighth Avenue, Bez Valley, for “the
purchase price of R358 500.00, payable
in cash upon registration of
transfer of the property into the name of the purchaser which amount
shall be secured by a suitable
guarantee from a registered financial
institution within 15 days from date of grant of loan” within
10 days from the date
of signature of the agreement. Merely to
complete the history of the matter, I may mention that on 26 October
2005 the second appellant
in writing ratified the agreement “in
so far as is necessary in terms of
s 15(4)
and (5) of the
Matrimonial
Property Act&rdquo
;.
[3] Section 15(1)(g) of
the Act prohibits a spouse in a marriage in community of property
without the written consent of the other
spouse, to “as a
purchaser enter into a contract as defined in the Alienation of Land
Act, 1981 (Act No 68 of 1981) (the
Alienation of Land Act), and
to
which the provisions of that Act apply”. “Contract”
according to
s 1
of the
Alienation of Land Act
(a) means a deed of
alienation under which land is sold against payment by the purchaser
to, or to any person on behalf of, the
seller of an amount of money
in more than two installments over a period exceeding one year;
(b) includes any
agreement or agreements which together have the same import, whatever
form the agreement or agreements may take;
In the court
a
qu
o the
argument on behalf of the appellants that the agreement was not a
contact as contemplated in the
Alienation of Land Act, received
short
shrift and was brushed aside by the judge as “mischievous”.
Having referred to sub sec (b) of the definition
of “contract”
in the
Alienation of Land Act, the
judge reasoned
The meaning to be
assigned to the phrase “same import” include giving same
significance. The most significant act in
the agreement to alienate
land is the agreement to alienate which stands as the ultimate
outcome. Moreover payment on registration
of transfer, and paying an
amount of money in more than two installments over a period exceeding
one year, have the same import,
invariably the same significance
namely
exchange
of land with money
(underlining
in original).
With respect to the
learned judge, I am unable to follow the logic of her reasoning. Full
payment of the purchase price of an immovable
property against
transfer has always been held to be a cash transaction. It cannot in
any way be equated to payment of more than
two instalments over a
period exceeding one year. The agreement is unambiguous in its terms:
it provides for a cash transaction
and there is simply no provision
for the payment of any instalments. In argument before us counsel for
the respondents submitted
that the agreement should be read in
conjunction with the provisions of the mortgage agreement securing a
loan entered into between
the appellants and the grantor of the loan
secured, Standard Bank. This, counsel concluded, resulted in two
agreements having the
same import as contemplated in
s 1(b)
of the
Alienation of Land Act. There
is no merit in the argument. The
mortgage agreement constituted an independent obligation by the
appellants as security to the
bank for repayment of the loan granted
by the bank (see
Gounder
v Top Spec Investments (Pty) Ltd
[2008] ZASCA 52
;
2008
(5) SA 151
(SCA)) and therefore did not constitute an “instalment”
payable by “the purchaser” to “the seller”
within the meaning thereof in the definition of “contract”
in
s 1
of the
Alienation of Land Act. The
second appellant moreover
signed a written consent for her husband (the first appellant) to
enter into the loan agreement, and
in the same document acknowledged
that the mortgage bond would secure the indebtedness arising from the
loan. It follows that the
agreement was not hit by the prohibition
contemplated in s 15(1)(g) of the Act. The respondents’
reliance on the section
accordingly was misplaced. This conclusion
renders it unnecessary to deal with the other issues raised on
appeal.
[4] For these reasons
the appeal must succeed.
[5] Finally, it is
necessary to deal with the costs of the previous hearing of this
appeal on 4 June 2009. On this occasion the
first respondent appeared
in person and informed us that his attorneys due to a lack of funds
had withdrawn as the respondents’
attorneys of record. He
accordingly applied for a postponement in order to obtain legal
representation. Although the appellants
were ready to proceed, the
indulgence sought was granted. There is no reason why the respondents
should not be liable for the costs
of the first hearing. The
appellants are successful in this appeal and entitled to the costs of
the appeal which renders it unnecessary
to make a separate order as
to the costs of the first hearing.
[6] In the result the
following order is made:
The appeal is upheld
with costs.
The order of the court
a
quo
is
set aside and replaced by the following
The
first and second respondents are interdicted from alienating or
taking any steps aimed at alienating or disposing of the immovable
property known as STAND 605 BEZVALLEY, 225 AND 225a – 8
TH
AVENUE, BEZVALLEY (“the property”) except in terms of
the agreement entered into between the first applicant and
the
respondents on 1 April 2005 (“the agreement”).
In
the event of the first and second respondents failing to honour
their obligations in terms of the agreement within 10 days
of the
date of this judgment the sheriff or his deputy are authorised and
directed to sign all documents and to do all things
necessary on
behalf of the respondents to affect the sub-division and transfer of
the property into the name of the first applicant.
The first and second
respondents are ordered to pay the costs of the application.
_______________________
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
I agree.
__________________________
FR MALAN
JUDGE OF THE HIGH
COURT
I agree.
_________________________
RRD MOKGOATHLENG
JUDGE OF THE HIGH
COURT
COUNSEL FOR THE
APPELLANTS ADV FJ NALANA
APPELLANT’S
ATTORNEYS GARLICKE BOUSFIELD INC
COUNSEL FOR THE
RESPONDENTS ADV AI CAJEE
RESPONDENTS’
ATTORNEYS WITS LAW CLINIC
DATE OF HEARING 4
JUNE
& 27 JULY 2009
DATE OF
JUDGMENT 7 AUGUST 2009