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[2020] ZASCA 23
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Marais N.O. and Another v Maposa and Others (642/2018) [2020] ZASCA 23; 2020 (5) SA 111 (SCA) (25 March 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
In
the matter between:
Reportable
Case
No: 642/2018
JACQUES LE ROUX MARAIS
N.O.
FIRST APPELLANT
SIVUVUYANI JULIAN SHONGWE
N.O.
SECOND APPELLANT
and
KGOMOTSO COMFORT
MAPOSA
FIRST RESPONDENT
KGOTHATSO THEODOR
LEDWABA
SECOND RESPONDENT
MOKGOHU MARTHA
LEDWABA
THIRD RESPONDENT
SEEPUNT EIENDOMME
CC
FOURTH RESPONDENT
REGISTRAR OF DEEDS, CAPE
TOWN
FIFTH RESPONDENT
COMPANIES
AND INTELLECTUAL PROPERTY
COMMISSION
SIXTH RESPONDENT
Neutral
citation:
Marais N.O. and Another v Maposa and Others
(642/2018)
[2020] ZASCA 23
(25 March 2020)
Coram
:
PETSE DP, MBHA, VAN DER MERWE, PLASKET and NICHOLLS JJA
Heard
:
10 March 2020
Delivered:
25 March 2020
Summary:
Matrimonial Property Act 88 of 1984
– spouses married in
community of property – donation of asset of joint estate
requires consent of spouse in terms
of
s
15(3)
(c)
– consent not given – whether consent
deemed to have been given in terms of
s 15(9)
(a)
.
ORDER
On
appeal from:
Western Cape Division of the High Court, Cape Town
(Binns-Ward J sitting as court of first instance):
1. Mr Jacques Le Roux
Marais and Mr Sivuvuyani Julian Shongwe are substituted as appellants
for the late Ms Ephania Mogogodi Broodie.
2. The first, second and
third respondents are directed to pay the costs of the application
for substitution, including the costs
of two counsel.
3. The appeal is upheld.
4. The first, second and
third respondents are directed to pay the appellants’ costs,
including the costs of two counsel.
5. The order of the court
below is set aside and replaced with the following order.
‘
(a)
The transfer of 25 percent each of the members’ interest in the
fourth respondent to the first, second and third respondents
is
declared void.
(b)
The first, second and third respondents are directed to sign all
necessary forms and documentation within five days of the date
of
this order to re-register the members’ interest currently in
their names into the name of the joint estate of the late
Mr Samuel
Broodie and the late Ms Ephania Mogogodi Broodie, and to enable the
sixth respondent to rectify its records to reflect
that the joint
estate is the sole member of the fourth respondent, failing which the
Sheriff for the district of Cape Town is authorized
to sign all
necessary forms and documentation in order to give effect to this
order.
(c)
The first, second and third respondents are directed to pay the
applicant’s costs, including the costs of two counsel.’
JUDGMENT
Plasket
JA (Petse DP, Mbha, Van der Merwe and Nicholls JJA concurring)
[1]
Ms Ephenia Mogogodi Broodie was the executrix of the estate of the
late Mr Samuel Broodie when she brought an urgent application
in the
Western Cape Division of the High Court, Cape Town. At the time of
the death of Mr Broodie on 4 December 2016, he and Ms
Broodie had
been married for almost 50 years. Their marriage was one in community
of property. Ms Broodie launched the application
after she discovered
that 75 percent of her and Mr Broodie’s joint estate’s
members’ interest in the fourth respondent,
Seepunt Eiendomme
CC (Seepunt), had, without her knowledge and consent, been
transferred in equal 25 percent proportions to the
first, second and
third respondents, Ms Kgomotso Comfort Maposa, Mr Kgothatso Theodor
Ledwaba and Ms Mokgohu Martha Ledwaba respectively.
[2]
Ms Broodie sought an order setting aside the transfer of the members’
interest to the first to third respondents, as well
as certain
interim relief. The interim relief was granted by agreement at an
early stage in the proceedings. When the matter finally
came before
Binns-Ward J for determination on the merits, he dealt with a number
of preliminary issues that do not have to be revisited
in this
appeal. He also separated the two principal issues on the merits.
They were, first, the effect of Ms Broodie’s lack
of consent on
the validity of the transfer, in terms of
s 15
of the
Matrimonial
Property Act 88 of 1984
, and, secondly, whether the transfer was
effected fraudulently by Ms Ledwaba and at a time when Mr Broodie
lacked capacity.
[3]
Binns-Ward J dismissed the claim based on Ms Broodie’s lack of
consent, holding that, in terms of
s 15(9)
(a)
of the
Matrimonial Property Act, she
was deemed to have consented to the
transfer. He referred the ‘fraud and capacity’ issue to
trial. Ms Broodie applied
for and was granted leave to appeal to this
court. That leave was restricted to the grounds relating to ‘the
import and effect
of
section 15(9)
of the
Matrimonial Property Act&rsquo
;.
[4]
Ms Broodie died on 26 March 2019, subsequent to the judgment having
been delivered. (Both she and Mr Broodie died intestate.)
At the
hearing of the appeal, an application was brought for an order
substituting, as appellants, the current joint executors
of the
estate of Mr Broodie for Ms Broodie. That application was opposed by
the first to fourth respondents. I shall deal with
it before
proceeding to deal with the central issue in this appeal – the
validity of the transfer.
The application for
substitution
[5]
Rule 15(1) of the Uniform Rules of Court provides that proceedings do
not terminate solely because of the ‘death, marriage
or other
change of status’ of a party, ‘unless the cause of such
proceedings is thereby extinguished’. Rule 15(3)
provides that
when a party dies or is no longer capable of acting as such, ‘his
executor, curator, trustee or similar legal
representative, may by
notice to all other parties and to the registrar intimate that he
desires in his capacity as such thereby
to be substituted for such
party, and unless the court otherwise orders, he shall thereafter for
all purposes be deemed to have
been so substituted’.
[6]
Mr Jacques Le Roux Marais, as a duly appointed executor of the estate
of Mr Broodie, brought an application in terms of rule
15 for the
substitution of himself and his co-executor, Mr Sivuvuyani Julian
Shongwe as appellants, in the stead of Ms Broodie
in her capacity as
executrix of the estate of Mr Broodie. An application, which was not
persisted with, was also brought ostensibly
for the substitution of
Mr Charles Duke Broodie, the executor of the estate of Ms Broodie, in
the stead of Ms Broodie in her personal
capacity. No more need be
said of this.
[7]
It appears that when Ms Broodie died, the Master was prevailed upon
to appoint joint executors, one nominated by the Broodie
family and
the other nominated by the Ledwaba family. Mr Marais was nominated by
the Broodie family and Mr Shongwe was nominated
by the Ledwaba
family.
[8]
In his founding affidavit, Mr Marais stated that Mr Shongwe was
requested to consent to be substituted as an appellant but he
responded by saying that he had decided ‘to stay neutral in
this matter and not appear to take sides in a dispute involving
beneficiaries in the common estate’. He was approached again
but maintained his position, adding that he would not change
it
‘unless compelled by a court order’.
[9]
It is unfortunately necessary to say something about Mr Shongwe’s
attitude. When he was appointed as an executor, he was
not appointed
to champion one of the disputing parties. He was appointed to act in
the best interests of the estate. On the face
of it, a very
substantial asset of the estate has been donated in circumstances
that, at the very least, raise suspicion as to
that transaction’s
validity. It was not open to, or prudent of Mr Shongwe to assert a
position of ‘neutrality’.
I would have expected him to
have agreed to be substituted as an appellant without hesitation.
[10]
Despite having filed opposing papers, the respondents abandoned their
opposition at the hearing of the appeal. It was argued
on their
behalf, however, that in the event of the appeal being dismissed, Mr
Marais ought to be ordered to pay the costs
de bonis propriis
.
As this was never raised in the papers, with the consequence that Mr
Marais never had the opportunity to deal with it, the argument
was
not properly before us and can safely be ignored.
[11]
I am satisfied that Mr Marais ought to be substituted as an
appellant. I also take the view that, despite his unacceptable
abdication of his duty as an executor, Mr Shongwe should be
substituted as an appellant too. The opposition to what ought to have
been a formality was unreasonable, with the result that Ms Maposa, Mr
Ledwaba and Ms Ledwaba must bear the costs of the application.
While
Seepunt, represented by Ms Ledwaba, also purported to oppose the
application, in view of the result of the appeal, there
is no reason
why it should have to pay any costs. I shall make the appropriate
order at the end of this judgment.
The central issue
Background
[12]
In this account of the background to the application before
Binns-Ward J, I set out facts deposed to by Ms Broodie in her
founding affidavit that are either common cause, are not placed in
dispute or cannot effectively be disputed. I shall later consider
Ms
Ledwaba’s version including what she knew of the circumstances
of the marriage of Mr and Ms Broodie.
[13]
Mr and Ms Broodie were married on 26 April 1967. Ms Broodie said in
her founding affidavit that, together, they accumulated
immovable
property, worked together as a team and owned and ran a depot from
which paraffin was sold. They appear to have built
up a substantial
estate over the years.
[14]
The biggest asset in their joint estate was the members’
interest in Seepunt. It owned a building in Sea Point, Cape
Town. The
most recent valuation of the building placed a value of about R20
million on it. The building also generates rental of
approximately
R75 000 per month. Mr Broodie acquired the members’ interest in
Seepunt on 20 April 2001.
[15]
Ms Broodie believed that Ms Ledwaba was employed by Mr Broodie as a
bookkeeper. That is disputed. Ms Ledwaba said that she
was never
formally employed but played an active part in the management of some
of Mr Broodie’s businesses. Ms Broodie became
aware of the
relationship between Mr Broodie and Ms Ledwaba in 1989 and, in 1993,
she found out that Mr Broodie had fathered two
children – the
first and second respondents – by Ms Ledwaba.
[16]
Mr Broodie began to display signs of ill-health in 2013. He appears
to have become forgetful and, at times, confused. In early
2014, it
was determined that he had suffered a stroke. As his mental health
deteriorated, he withdrew from active involvement in
his businesses.
[17]
It is common cause that on 12 May 2014, 75 percent of the members’
interest in Seepunt was transferred from Mr Broodie
to Ms Ledwaba and
her two children, each acquiring 25 percent. Ms Broodie said that
this donation was effected without her knowledge
and without her
consent. She was most surprised that Mr Broodie had not spoken to her
about the donation.
[18]
Ms Broodie only became aware of the donation in November 2016. That
was about two and a half years after it had occurred and
shortly
before Mr Broodie died on 4 December 2016.
The Matrimonial Property
Act
[19]
Section 11
of the
Matrimonial Property Act abolished
the common law
rule to the effect that, unless an antenuptial contract provides
otherwise, the husband in a marriage exercises
marital power over his
wife.
Section 12
provides that one of the effects of the abolition of
marital power was ‘to do away with the restrictions which the
marital
power places on the capacity of a wife to contract and to
litigate’.
[20]
Chapter III of the Act concerns marriages in community of property.
Its first section,
s 14
, makes provisions for the natural consequence
of the abolition of marital power, namely equality between spouses.
It states:
‘
Subject to the
provisions of this Chapter, a wife in a marriage in community of
property has the same powers with regard to the
disposal of the
assets of the joint estate, the contracting of debts which lie
against the joint estate, and the management of
the joint estate as
those which a husband in such a marriage had immediately before the
commencement of this Act.’
[21]
Section 15
, the section with which this appeal is concerned, is
headed ‘Powers of spouses’. Its focus is on the
commercial relationships
of spouses and third parties.
Section 15(1)
provides that ‘[s]ubject to the provisions of subsections (2),
(3) and (7), a 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’.
[22]
Section
15(2)
, the first subsection to which
s 15(1)
is subject, sets out a
number of transactions that not only require the consent of the
non-contracting spouse, but his or her written
consent. The list
includes, by way of example, entering into ‘any contract for
the alienation, mortgaging, burdening with
a servitude or conferring
of any other real right in immovable property forming part of the
joint estate’
[1]
and a
spouse binding himself or herself as a surety.
[2]
[23]
Section
15(3)
, the second subsection to which
s 15(1)
is subject, also
requires the consent of the non-contracting spouse to the
transactions that it lists, but consent to these transactions
need
not be in writing.
Section 15(3)
(c)
provides,
for instance, that a spouse may not, without the consent of the other
spouse, ‘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
subsection’.
[3]
Section
15(8)
provides that ‘[i]n 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’.
[24]
The consent
required by
s 15(3)
, as well as for most of the transactions listed
in
s 15(2)
, may be given after the event: the non-contracting spouse
may ratify the transaction provided that this is done within a
reasonable
time.
[4]
Consent is
not required in respect of certain of the transactions listed in
s
15(2)
– such as a spouse binding himself or herself as a surety
– if those transactions are ‘performed by a spouse in
the
ordinary course of his profession, trade or business’.
[5]
[25]
Section 15(9)
, which is central to this appeal, deals with the
consequences of a transaction requiring consent being entered into
without consent.
It states:
‘
When a spouse
enters into a transaction with a person contrary to the provisions of
subsection
(2) or (3) of this
section . . . and-
(a)
that person does not know and cannot reasonably know that the
transaction is being entered into contrary to those provisions
. . .
it is deemed that the transaction concerned has been entered into
with the consent required in terms of the said subsection
(2) or (3)
. . . ;
(b)
that spouse knows or ought reasonably to know that he will probably
not obtain the consent required in terms of the said subsection
(2)
or (3) . . . and the joint estate suffers a loss as a result of that
transaction, an adjustment shall be effected in favour
of the other
spouse upon the division of the joint estate.’
[26]
The effect
of
s 15
may be summarized as follows. First, as a general rule, a
spouse married in community of property ‘may perform any
juristic
act in connection with the joint estate without the consent
of the other spouse’.
[6]
Secondly, there are exceptions to the general rule. In terms of
ss
15(2)
and (3), a spouse ‘shall not’ enter into any of the
transactions listed in these subsections without the consent of
the
other spouse. Subject to what is said about the effect of
s 15(9)
(a)
,
if a spouse does so, the transaction is unlawful, and is void and
unenforceable.
[7]
This, it seems
to me, flows from what Innes CJ, in
Schierhout
v Minister of Justice
,
[8]
called a ‘fundamental principle of our law’, namely, that
‘a thing done contrary to the direct prohibition of
the law is
void and of no effect’.
[9]
Thirdly, if a listed transaction is entered into without the consent
of the non-contracting spouse, that transaction will nonetheless
be
valid and enforceable if the third party did not know and could not
reasonably have known of the lack of consent. While the
consent
requirement is designed to provide protection to the non-contracting
spouse against maladministration of the joint estate
by the
contracting spouse, the ‘deemed consent’ provision in
s
15(9)
(a)
is
intended to protect the interests of a bona fide third party who
contracts with that spouse.
[10]
[27]
Section 15
thus seeks to strike a balance between the interests of the non-
consenting spouse, on the one hand, and the bona fide third party,
on
the other. Whether the legislature has struck an appropriate balance
has been fiercely debated by academic writers, but is an
issue that
does not have to be engaged with in this judgment.
[11]
In
Sishuba
v Skweyiya and Another
[12]
the context in which
s 15
, and
s 15(9)
(a)
in
particular, is to be interpreted was set out as follows:
‘
These provisions
seek to regulate marriages in community of property after the
abolition of marital power. They must be interpreted
and applied
within this context – one in which “the restrictions
which the marital power places on the capacity of
a wife to contract
and to litigate” have been abolished; in which “a wife in
a marriage in community of property has
the same powers with regard
to the disposal of the assets of the joint estate, the contracting of
debts that lie against the joint
estate, and the management of the
joint estate as those which a husband in such a marriage had
immediately before the commencement
of this Act”; and in which
proper effect must be given to the fundamental right of everyone to
equality before the law and
the equal protection and benefit of the
law.’
[28]
A third
party to a transaction contemplated by
ss 15(2)
or (3) that is
entered into without the consent of the non-contracting spouse is
required, in order for consent to be deemed and
for the transaction
to be enforceable, to establish two things: first, that he or she did
not know that consent was lacking; and
secondly, that he or she could
not reasonably have known that consent had not been given. In terms
of the general principle that
the party who asserts a particular
state of affairs is generally required to prove it,
[13]
the burden of bringing
s 15(9)
(a)
into
play rests on the party seeking to rely on the validity of the
transaction.
[14]
[29]
The
reference to reasonableness in the phrase ‘cannot reasonably
know’ imports an objective standard into the proof
of this
element: it must be established with reference to the standard of the
reasonable person, in terms of what the reasonable
person would do in
the circumstances and the conclusion that the reasonable person would
draw.
[15]
[30]
In other
words, a duty is placed on the party seeking to rely on deemed
consent to make reasonable enquiries. Van Heerden, Cockrell
and
Keightley say:
[16]
‘
Lack of actual
knowledge on the part of the third party is a straightforward enough
stipulation and capable of determination. But
“cannot
reasonably know” is more problematic. It must imply that the
third party is under some sort of obligation to
enquire about the
status of the person with whom he or she is contracting. The third
party is called upon, it is submitted, to
take reasonable steps to
ascertain whether the person with whom he or she is dealing is
married and, if so, whether they have obtained
whatever consent may
be necessary for the particular transaction.’
The
authors make the point that the third party may not do nothing,
because then
s 15(9)
(a)
would
be meaningless.
[17]
To put it
at its lowest, the third party is ‘put on enquiry’.
[18]
[31]
The views
of the academic writers are in harmony with the views expressed in
various high court judgments. For instance, in
Visser
v Hull and Others
,
[19]
Dlodlo J, after referring to the views of Steyn,
[20]
held:
‘
I agree with
Professor Steyn that a third party is expected to do more than rely
upon a bold assurance by another party regarding
his or her marital
status. An adequate inquiry by the third party is required. If this
proposition and interpretation of the liability
of third parties is
accepted, then it could be argued that the third parties in the case
under consideration should have made the
necessary inquiries into the
current state of the applicant and the deceased's marital status.’
The
same conclusion was reached in
Sishuba
v Skweyiya and Another
,
[21]
with reference to the views of Van Heerden, Cockrell and Keightley
replicated in para [30] above.
[32]
I endorse the views expressed in the cases to which I have referred,
as well as the views of the academic writers upon which
they are
based: a duty is cast on a party seeking to rely on the deemed
consent provision of
s 15(9)
(a)
to make the enquiries that a
reasonable person would make in the circumstances as to whether the
other contracting party is married,
if so, in terms of which marriage
regime, whether the consent of the non-contracting spouse is required
and, if so, whether it
has been given. Anything less than this duty
of enquiry, carried out to the standard of the reasonable person,
would render
s 15(9)
(a)
a dead letter. It would not protect
innocent spouses from the maladministration of the joint estate and
would undermine the
Matrimonial Property Act’s
purpose of
promoting equality in marriages in community of property.
The facts
[33]
In what
follows, I set out relevant facts deposed to by Ms Ledwaba. In terms
of the
Plascon-Evans
rule,
[22]
the facts deposed to by her, unless they are uncreditworthy,
far-fetched or untenable, are to be accepted for purposes of
determining
whether a case has been made out for the relief claimed
by Ms Broodie. For present purposes, I shall accept them at face
value
rather than deal with the argument raised on behalf of the
appellants that her version is not, in important respects,
creditworthy
and ought to be rejected on the papers.
[34]
Ms Ledwaba said in her answering affidavit that she met Mr Broodie in
1986 and they became involved in a personal relationship
in that
year. She knew at the time that he was married and had three children
but did not know whether he was married civilly or
by custom. During
1988, Ms Ledwaba and Mr Broodie purported to enter into a customary
union. As Mr Broodie and Ms Broodie were
married civilly, the result
was that the customary union was invalid, although Ms Ledwaba did not
know this until after these proceedings
had been initiated.
[35]
Ms Ledwaba stated that Mr Boodie told her that he had told Ms Broodie
about the customary union. This is, to an extent, consistent
with Ms
Broodie’s evidence that she found out about the relationship
between Ms Ledwaba and Mr Broodie in 1989. It is not
clear from the
papers precisely what Ms Broodie knew of the nature of the
relationship.
[36]
Two children were born of the union. Ms Maposa was born on 21
November 1989. Her brother, Mr Ledwaba, was born on 11 May 1993.
Ms
Broodie’s evidence was that she found out that Mr Broodie had
fathered two children by Ms Ledwaba in 1993.
[37]
Ms Ledwaba resigned from her employment as a nurse and became
increasingly involved in administering one of Mr Broodie’s
businesses, a paraffin distribution business in Dennilton. She also
began to study and in due course completed a Master of Business
Administration degree.
[38]
During the late 1990s, Ms Ledwaba said, Mr Broodie first broached the
topic of providing for their children in the event of
his death. He
wanted to provide for both of his families separately by giving each
of them different properties and businesses.
A few years later, in
2001, he acquired the members’ interest in Seepunt. She said in
this regard:
‘
I pause to advise
that although the Deceased was registered as the sole member of the
CC, in accordance with the usual patriarchal
manner in which he
conducted all his business dealings, we verbally agreed that the
members’ interest in the CC actually
belonged to our children
and myself, although it would only be registered in our names on a
date to be agreed between the Deceased
and myself. Although we did
not discuss such issue, [there] can be no doubt that it was tacitly
or impliedly agreed that we could
immediately demand to be registered
as the members of the CC in the event of his death.’
She
conceded that she and Mr Broodie never entered into a written
agreement of donation in respect of the members’ interest
in
Seepunt.
[39]
During 2013, Ms Maposa asked when her portion of the members’
interest in Seepunt would be transferred to her. This led
to a
meeting, on 7 January 2014, attended by Mr Broodie, Ms Ledwaba and
their two children, at which it was agreed that ‘the
Deceased
would forthwith transfer 75% of his members interest to our children
and me, with each of us to receive a members interest
of 25%’.
It was also agreed that Ms Ledwaba ‘would take all necessary
steps to procure such registration’. Subsequent
to this
agreement she ‘duly acquired the necessary documentation,
arranged for the completion thereof by all parties concerned
and
submitted it to the CIPC, whereupon my children and I became the
registered members of the CC on 12 May 2014’.
Was the donation valid?
[40]
Section 15(3)
(c)
only requires the non-contracting spouse’s
consent if the donation concerned ‘does not and probably will
not unreasonably
prejudice’ his or her interests.
Section 15(8)
provides the means to determine this issue.
[41]
The donation of 75 percent of the members’ interest in Seepunt
constitutes the lion’s share of the joint estate.
In effect,
the respondents claim an asset valued at R20 million for themselves,
leaving a residue of perhaps two or three million
Rand for Mr
Broodie’s ‘first family’. I bear in mind that the
reason given by Ms Ledwaba for Mr Broodie’s
donation was to
make provision, equally it would appear, for both of his families.
This donation certainly does not do that but
rather benefits Ms
Ledwaba and her children in a disproportional manner as compared to
Mr Broodie’s children by Ms Broodie.
These factors, on their
own, lead me to the conclusion that the donation certainly prejudiced
the interests of Ms Broodie, and
therefore required her consent.
[42]
It is not in dispute that Ms Broodie never consented to the transfer
of 75 percent of the members’ interest in Seepunt
to Ms Maposa,
Mr Ledwaba and Ms Ledwaba. As neither Ms Maposa nor Mr Ledwaba have
claimed to have made any enquiries in terms of
s 15(9)
(a)
, and
because Ms Ledwaba, in terms of the agreement, took charge of the
transaction and acted on their behalf, it is to her conduct
that one
must look to determine whether Ms Broodie’s consent may be
deemed to have been given.
[43]
Ms Ledwaba knew from the outset of her relationship with Mr Broodie
that he was married and had children. She stated that Mr
Broodie
never discussed his marriage to Ms Broodie with her, and she never
raised the issue with him. She ‘barely knew the
applicant’s
name’ and she ‘certainly had no knowledge as to whether
or not she and the deceased were married
according to civil rights or
entered into a customary marriage, and if the former, whether they
were married in or out of community
of property’. On the basis
of this factual foundation she asserted that she ‘did not know,
and in light of the nature
of my relationship with the Deceased,
could not have been expected to know, that he was married in
community of property’.
[44]
On Ms Ledwaba’s own version, she does not get out of the
starting blocks. She admitted that she knew that Mr and Ms Broodie
were married but she made no enquiries as to how they were married
and whether Mr Broodie required Ms Broodie’s consent to
the
donation. Her counsel conceded that she did not even ask Mr Broodie
if he had discussed the transfer with Ms Broodie. As she
made no
enquiries despite her knowledge that Mr Broodie was married, she did
not, on her own version, establish that she, as a
reasonable person,
could not have known that the transaction was entered into without Ms
Broodie’s consent. The result is
that the appeal must succeed
and the transaction must be set aside, with the consequence that the
members’ interest in Seepunt
reverts to the joint estate of Mr
and Ms Broodie. In the light of this conclusion, there is no basis
for a costs order, either
in the court below or on appeal, to be made
against Seepunt.
The order
[45]
I make the following order.
1. Mr Jacques Le Roux
Marais and Mr Sivuvuyani Julian Shongwe are substituted as appellants
for the late Ms Ephania Mogogodi Broodie.
2. The first, second and
third respondents are directed to pay the costs of the application
for substitution, including the costs
of two counsel.
3. The appeal is upheld.
4. The first, second and
third respondents are directed to pay the appellants’ costs,
including the costs of two counsel.
5. The order of the court
below is set aside and replaced with the following order.
‘
(a)
The transfer of 25 percent each of the members’ interest in the
fourth respondent to the first, second and third respondents
is
declared void.
(b)
The first, second and third respondents are directed to sign all
necessary forms and documentation within five days of the date
of
this order to re-register the members’ interest currently in
their names into the name of the joint estate of the late
Mr Samuel
Broodie and the late Ms Ephania Mogogodi Broodie, and to enable the
sixth respondent to rectify its records to reflect
that the joint
estate is the sole member of the fourth respondent, failing which the
Sheriff for the district of Cape Town is authorized
to sign all
necessary forms and documentation in order to give effect to this
order.
(c)
The first, second and third respondents are directed to pay the
applicant’s costs, including the costs of two counsel.’
___________________
C Plasket Judge of Appeal
APPEARANCES
For
the appellants: S Gundelpfennig SC and E de Lange
Instructed
by: Van Wyk Van Heerden Attorneys, Paarl Lovius Block Attorneys,
Bloemfontein
For
the first to fourth respondents: H W Phalatsi
Instructed
by: Phalatsi and Partners, Bloemfontein
[1]
Section 15(2)(b).
[2]
Section 15(2)(h).
[3]
‘
Section 15(3)(a)
concerns the alienation, pledging or other
burdening of ‘furniture or other effects of the common
household forming part
of the joint estate’.
[4]
Section 15(4).
[5]
Section 15(6).
See Amalgamated Banks of South Africa Bpk v De Goede
en ‘n Ander 1997 (4) SA 66 (SCA).
[6]
B van Heerden, A Cockrell and R Keightley Boberg’s Law of
Persons and the Family (2 ed) (1999) at 188.
[7]
Amalgamated Bank of South Africa Bpk v Lydenburg Passasierdienste BK
en Andere
1995 (3) SA 314
(T) at 322F-I; Bopape and Another v Moloto
2000 (1) SA 383
(T) at 386J-387A; Sishuba v Skweyiya and Another
[2008] ZAECHCG 25; 2008 JDR 0593 (E) paras 19-20. See too L Steyn
‘When
a Third Party “Cannot Reasonably Know” that
a Spouse’s Consent to a Contract is Lacking’
(2002) 119
SALJ 253
at 253.
[8]
Schierhout v Minister of Justice
1926 AD 99
at 109.
[9]
See, in the context of
s 15
of the
Matrimonial Property Act, Sishuba
v Skweyiya and Another (note 7) para 20.
[10]
Van Heerden, Cockrell and Keightley (note 6) at 191.
[11]
See for instance, Van Heerden, Cockrell and Keightley (note 6) at
193, who argue that the protection given to third parties by
s
15(9)(a)
at the expense of non-contracting spouses has been ‘taken
too far’ and J S McLennan ‘The Perils of Contracting
with Persons Married in Community of Property’
(2000) 117 SALJ
367
at 368 who says that ‘the legislature has effectively cast
the burden of the equality of spouses onto third parties’.
[12]
Note 7 para 17.
[13]
Pillay v Krishna and Another
1946 AD 946
at 951-952.
[14]
Distillers Corporation Ltd v Modise
2001 (4) SA 1071
(O) para 4.
[15]
Distillers Corporation Ltd v Modise (note 14) para 5.
[16]
Note 6 at 191. See too Steyn (note 7) at 256 who says: ‘The
word “cannot” in the phrase “cannot reasonably
know”, I submit, implies that a duty is cast upon the third
party to take reasonable steps to investigate whether, in the
circumstances, consent is required and, if so, whether it has been
obtained.’
[17]
Note 6 at 191 fn107.
[18]
J D Sinclair An Introduction to the Matrimonial Property Act 1984
(1984) at 20.
[19]
Visser v Hull and Others [2009] ZAWCHCC 77;
2010 (1) SA 521
(WCC)
para 8. See too Yonda Investments CC v Rohr and Another [2014]
ZAGPPHC 275; 2014 JDR 1031 (GNP) para 24.
[20]
Note 7 at 256.
[21]
Note 7 para 22.
[22]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C.