Sanders v Sanders (3022/02) [2002] ZAWCHC 34; [2002] 3 All SA 619 (C) (19 June 2002)

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[2002] ZAWCHC 34
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Ex Parte: Sanders (3022/02) [2002] ZAWCHC 34; [2002] 3 All SA 619 (C); 2002 (5) SA 387 (C) (19 June 2002)

IN THE HIGH
COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO.: 3022/02
REPORTABLE
In
the matter
ex parte
application of :
LEON
OWEN SANDERS
First
Applicant
ID
NUMBER : 731215 5158 084
and
JUNE
ESTHER SANDERS
(born ADAMS)
Second
Applicant
ID
NUMBER : 720530 0288 089
JUDGMENT
DELIVERED ON 19 JUNE 2002
________________________________________________________________________
DENZIL
POTGIETER, A.J.
I made the following order in this matter on 13
June 2002 with reasons to follows :
“
1. That leave is granted to applicants in terms of Section
21(1) of Act 88 of 1984 to enter a Notarial Contract in terms similar
to
the draft attached to applicants’ affidavit which is marked “A”
in the papers before this court.
That
the marriage of first and second applicants shall, from the date of
registration of the said Notarial Contract, be governed
by the terms
of the Notarial Contract.
That
such Notarial Contract shall be lodged for registration at the Deeds
Office, Cape Town, within three months of the date of
this order.
That
this order shall not affect the rights of creditors of the
Applicants’ joint estate and that such creditors shall be entitled
to execute against the Applicants’ assets inr espect of debts
incurred prior to the registration of the Notarial Contract.”
The reasons now follow.
The Applicants have applied for leave to register
postnuptially, a notarial contract changing their proprietary regime
in terms of
section 21(1) of the Matrimonial Property Act No. 85 of
1984 (“the Act”). The application is not opposed.
Applicants
indicate in their founding affidavit that they were both previously
married and when they discussed their proposed marriage
they decided
to get married out of community of property because First Applicant,
the husband, is a businessman and Second Applicant
did not wish to
incur any liability for his debts. Prior to the marriage First
Applicant consulted an attorney for the purpose of
preparing an
antenuptial contract. The necessary fees were paid in a substantial
amount and the attorney informed First Applicant
that it would take a
few days to register the contract. The marriage was solemnized on 19
January 1996 on the understanding that
it would be out of community
of property. The attorney never contacted the parties again. It was
only when the parties attempted
to purchase an immovable property
during March 2002 that the matter was raised again, since they were
then informed that no antenuptial
contract had ever been registered
with the result that their marriage was in fact in community of
property. Attempts to locate the
attorney who was supposed to have
attended to the registration of the antenuptial contract proved
fruitless. First Applicant had
forgotten the attorney’s details
and the premises where the attorney’s offices were situated, were
vacated. That attorney obviously
failed to attend to the
registration of the antenuptial contract. First Applicant also
ascertained from his present attorneys that
the fee which he had paid
was exorbitant.
The
present situation is causing the parties prejudice and interferes
with certain transactions which First Applicant has to conclude
in
regard to his business. A copy of the envisaged notarial contract is
annexed to the papers and its effect is basically to exclude
any
community of property or profit and loss between the parties and to
apply the accrual system in terms of Chapter 1 of the Act
to the
marriage.
The
Applicants clearly made out a case on the merits of the application
for the relief sought in the Notice of Motion. There are,
however,
certain procedural difficulties which need to be considered. Notice
of the application was given to all creditors and was
published in
editions of both the Cape Times and Burger newspapers as well as the
Government Gazette, but no notice was given to
the Registrar of Deeds
in terms of Section 97(1) of the Deeds Registries Act No. 34 of 1947.
The notice in the Government Gazette,
moreover, only gave 11 days
notice of the application.
The
practice followed in this Division in matters of this nature is set
out in the matter of
Ex
Parte Lourens et Uxor & 4 Others 1986(2) SA 291 (C).
It is necessary to analyse this decision in some detail. In
accordance with the decision, 2 weeks notice must be given in various
publications including the Government Gazette, of the intention to
bring the application. As pointed out a shorter notice was given
in
the Government Gazette in this matter. Furthermore, the following
dictum appears at 293B of the decision, namely
“[n]otice
of the application must be given to the Registrar of Deeds in terms
of
s97(1)
of the
Deeds Registries Act 47 of 1937
.”
No further discussion follow in regard to this requirement. The
judgment expressly indicates that it only regulates the procedure
to
be followed in matters of this nature so as to ensure some
uniformity. At p. 292 H-I of the decision the court remarks that
“[i]t seemed
desirable to have some uniformity regarding the procedure to be
followed because there are likely to be a number of
these
applications in future.”
The court then sets out the
“factors
which [were] taken into account in deciding upon the procedure to be
followed…”
and
prefaces the prescribed procedure with the following remark at p.
293A
“… the
following guidelines should be adhered to, save in exceptional
circumstances”
.
At p. 294C the court points out that there
“may
be other problems which arise when such applications are brought and
they will have to be solved as and when they do”
.
The decision
purports neither to be exhaustive to deal with issues of substantive
law such as the proper interpretation of
s97(1).
It is also relevant
to point out that in at least one of the applications considered by
the Court, it is apparent from the report
of the Registrar of Deeds
that the matter also concerned the envisaged registration of
immovable properties dealt with in the postnuptial
agreement in
question. This differs from the circumstances of the present matter
where no such act of registration is envisaged.
As
pointed out, the learned Judge did not discuss the effect of
section
97(1)
of the
Deeds Registries Act the
present context where leave is
sought to register a notarial contract changing the spouses’
matrimonial regime postnuptially.
It is necessary for purposes of
the present matter to consider that issue.
Section 97(1)
provides as
follows:
“
97(1) Before
any application is made to the court for authority or an order
involving the performance of any act in a deeds registry,
the
applicant shall give the registrar concerned at least seven days’
notice before the hearing of such application and such registrar
may
submit to the court such report thereon as he may deem desirable to
make.”
It
is of particular importance in the instant case to determine the
ambit of the section and the effect of a failure to comply with
its
terms. In this regard it is relevant to note that the section
entails both a duty to give notice and a prescribed notice period.

There is authority to the effect that non-compliance with the seven
day notice period can be condoned or put differently that this
provision is merely directory
(Ex
parte Micklewright
1941 GWLD 5
; Smith v Weston 1961(1) SA 275
(W); Jones ‘Conveyancing in South Africa’ (2 ed.) p. 14 &
79; Newall ‘The Law and
Practice of Deeds Registration’ (2 ed)
p. 50)
. This
interpretation and approach make logical sense and avoid the
absurdity which would follow should the notice period provision
be
given its literal meaning and such notice period be required as an
absolute prerequisite to all applications to court. It is
in my view
the correct interpretation.
Insofar
as the provision imposing a duty to give notice is concerned, it is
clearly couched in language indicating that compliance
with its terms
is mandatory or peremptory. No contrary intention can be gleaned
from either the context of the provision or from
the
Deeds Registries
Act as
a whole. This would mean that where a particular matter falls
within the ambit of
s97(1)
“…
the Legislature intended that the prerequisites laid down by that
section be fulfilled… Non-compliance cannot be condoned”
(Ex parte Motherloe (Law Society, Transvaal, Intervening 1996(4) SA
1131 (T) at 1137 H-I).
This interpretation accords with the purpose of the provision,
namely to allow Registrars of Deeds an opportunity to submit a report
expressing their views on applications where relief is sought
envisaging
“the
alteration of registered documents”
(Haviland Estates (Pty) Ltd & Another v McMaster 1969(2) SA
312 (A) at 319 H)
or
“to ensure that
there be no interference by the Courts with the functions of the
Registrar or the practice of his office without
due notice and report
from”
(Smith v
Weston supra at 279 E).
In the latter matter the provisions of
section 97(1)
were held to be
directory. In my view, however, to hold that the duty to give notice
is merely directory and therefore need not
be complied with, would
render this salutary purpose nugatory and would deprive the court of
having the benefit of the views of Registrars
of Deeds in appropriate
cases falling within their field of endeavour. It would also
contradict a practice that has a long history
and which was
articulated in the section
(cf
Newall op. cit. supra)
.
A failure to strictly comply with the provision is, however, not
automatically fatal and as pointed out by the court in
Maharaj
& Others v Rampersad 1964(4) SA 638 (A) at 646 C
:
“The
enquiry, I suggest, is not so much whether there has been “exact”
“adequate” or “substantial” compliance therewith.
This
enquiry postulates an application of the injunction to the facts and
a resultant comparison between what the position is and
what,
according to the requirements of the injunction, it ought to be. It
is quite conceivable that a Court might hold that, even
though the
position as it is is not identical with what it ought to be, the
injunction has nevertheless been complied with. In deciding
whether
there has been a compliance with the injunction the object sought to
be achieved by the injunction and the question of whether
this object
has been achieved are of importance. Cf. J.E.M. Motors Ltd v
Boutle and Another, 1961(2) SA 320 (N) at pp. 327-8.”
I
am in respectful agreement with the view expressed by Van Dijkhorst,
J. in
Ex parte
Motherloe (supra at 1138 D-E)
that this move away from a strictly legalistic approach ought to be
welcomed.
The
question whether there had been compliance with the notice provision
in a particular case, must be decided in the light of the
purpose of
the provision which is as stated in effect to allow the Registrar of
Deeds an opportunity to respond and submit a report
in an appropriate
case. It might, for example, be that prior notice could be dispensed
with in urgent matters and interim relief
granted subject to
subsequent proper notice being given to the Registrar of Deeds or
even that relief granted in the absence of prior
notice could become
final should the Registrar of Deeds not utilise an opportunity
allowed to respond
(cf
Ex parte MacDonald
1944 EDL 123).
Although
I am not bound by that decision it is appropriate to point out that
it follows, in my view, that the decision in
Smith
v Weston supra,
was wrongly decided to the extent that it could be interpreted as
holding that not only the notice period but also the duty to give
notice contained in
s.97(1)
, are directory. The court in that matter
did not expressly deal with any distinction between those two aspects
of the section.
The
issue that remains to be decided is whether the present application
falls within the ambit of
s.97(1)
thus necessitating notice being
given to the Registrar of Deeds. The operative part of the section
relevant to the present enquiry
is whether the application is
“for
authority or an order involving the performance of any act in a Deeds
Registry”
. Newall
(op. cit. supra)
points out that
“where it is a
question affecting land, a detailed report is generally required”
.
Applications
“affecting
land”
would
clearly fall within the ambit of the section. This would also be the
case in applications envisaging
“alterations
of registered documents”
(Haviland Estates v McMaster supra; Ex parte Saiga Properties
1997(4) SA 716 (E) at 720 J – 721 A)
.
The section would not, in my view, apply to an application
“to
determine the rights inter se or the status of parties, even though
the result is that the Registrar will thereafter be called
upon to
perform an act in a Deeds Registry in the normal execution of his
duties”
as in the
present case
(Smith
v Weston supra at 279F).
The parties own no immovable property. The application therefore
does not affect land and no alteration of any existing records
in the
Deeds Registry is envisaged. This seems to distinguish the present
matter from some of the applications dealt with by the
Court in
Ex
parte Lourens et Uxor supra.
The present application accordingly does not fall within the ambit
of
s.97(1)
and no notice is required to be given to the Registrar of
Deeds. The failure to give 14 days notice in the Government Gazette
is
condoned in the circumstances of the case. There was, in my view,
substantial compliance with this procedural requirement.
In
the result the order set out at the commencement of this judgment was
granted.
_______________________________
DENZIL
POTGIETER, A.J.