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[1989] ZASCA 9
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De Ujfalussy v De Ujfalussy (673/87) [1989] ZASCA 9; [1989] 2 All SA 279 (A) (16 March 1989)
Case no 673/87 WHN
ISTVAN DE UJFALUSSY
Appellant
and
ILONA DE UJFALUSSY
Respondent
JOUBERT
, JA.
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
ISTVAN DE UJFALUSSY
Appellant
and
ILONA DE UJFALUSSY
Respondent
Coram
: JOUBERT, HOEXTER, VAN HEERDEN, NESTADT
et
KUMLEBEN JJ.A
Heard
: 15 February 1989
Delivered
: 16
March 1989
JUDGMENT JOUBERT
, JA:
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This is an appeal against a decision of WILLIAMSON J in the
Cape of Good Hope Provincial Division which is reported in 1988(2) SA
540 (C).
The appeal is brought with the leave of the Court
a quo
. The parties to
the appeal were married to each other in Sweden according to the laws of that
country and their marriage still subsists.
It is common cause that their marital
regime is governed by community of property. I shall refer individually to the
appellant as
"the husband" and to the respondent as "the wife".
The marriage
relationship between the parties was apparently not a very happy one since the
wife in an action against her husband
in the Cape of Good Hope Provincial
Division was granted on 21 August 1975 a decree of judicial separation
a
mensa et thoro
. A 'Consent Paper' in which they regulated matters such as
maintenance and their property rights was simultaneously made an order
of
Court.
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The preamble to the 'Consent Paper' expressly states that they
desire it to be incorporated in such decree. From the provisions relating
to
their property rights it is clear that they intended
inter alia
to effect
a division of the joint estate between them (
boedelscheiding
) and that
each party was thenceforth to be in control of his or her own estate, i.e. by
ousting the marital power of the husband
over the wife and her separate estate.
(Compare Clause 5.) Clause 2(a) provides for a division of the movable assets of
the joint
estate. The only immovable asset in the joint estate was Berg-en-Dal,
sitUated in Somerset West, Cape Province, and registered by
Deed of Transfer
T2131/63 in the name of the husband. The relevant portions of Clause 2 which
relate to this immovable asset provide
as follows:
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"(b) In respect of the undivided one-half share of the immovable property
situate and known as Berg-en-Dal and registered in the name
of Defendant, the
parties hereto agree as follows:-
(i) Plaintiff shall during her lifetime be entitled, free of any payment to
Defendant whatsoever, to the sole and exclusive use of
Berg-en-Dal for
whatsoever purposes she in her sole and absolute discretion may elect to utilise
same.
(ii) In consideration of the aforegoing, Plaintiff hereby indemnifies
Defendant and holds him harmless against all or any proprietary
charges of
whatsoever nature or description which might be levied against Berg-en-Dal
including any outstanding claims
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against Berg-en-Dal up to and including date hereof as also any expenditure
which might hereafter be incurred by Plaintiff in respect
of farming operations
and/or any other operations relating to Berg-en-Dal. Moreover Plaintiff
undertakes and agrees to effect payment
of all or any instalments falling due in
respect of the mortgage bond registered against Berg-en-Dal as also to effect
payment of
any insurance premiums payable in respect of the dwelling house
erected thereon.
(c) (i) Notwithstanding anything to
the contrary hereinbefore contained, Defendant hereby grants to and in favour
of Plaintiff or her nominee an option valid until the
31st
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August, 1985, to acquire his aforementioned undivided one-half share in the
aforementioned Berg-en-Dal, for a purchase consideration
of R60,000-00,payable
in cash against registration of transfer from Defendant to and in favour of
Plaintiff or her nominee, specially
subject to the condition that all or any
costs of transfer including transfer duty shall be borne by Plaintiff or her
nominee as
the case may be, who shall moreover be obliged to discharge such
balance as may then be due by Defendant in respect of the mortgage
bond
registered against the entire immovable property known as Berg-en-Dal.
(ii) Should Plaintiff or her nominee elect to exercise the
option
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conferred as aforesaid, 30 days notice of such exercise shall be furnished to
Defendant in writing either by personal service on him
or alternatively by
prepaid registered post despatched together with an acknowledgment card to his
then place of residence or employment,
at the option of Plaintiff or her
nominee.
(d) (i) Should the option conferred
in the preceding sub-paragraph be exercised by Plaintiff or her nominee, then
and in such event and against registration of transfer
to and in favour of
Plaintiff or her nominee, a sum of R30,000-00 shall be paid to Defendant in cash
and the balance of R30,000-00
accruing to Defendant shall be deposited
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with an approved financial institution agreed upon between the
parties hereto or alternatively invested in a manner mutually agreed
upon
between the parties, specially subject to the condition that all or any income
accruing in respect of the aforestated balance
of R30,000-00 shall accrue to
Plaintiff in respect of maintenance for herself personally for as long as
Defendant is legally liable
to maintain Plaintiff."
On 14 June 1985 Abe Swersky & Associates, the wife's attorneys, purported
to exercise timeously on her behalf the option conferred
on her in terms of
Clause 2(c) of the Consent Paper by means of a letter addressed to her husband,
the relevant part of which reads
as follows:
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"We have been instructed by your wife
to notify you, as we hereby do, that
the option conferred on her in terms of
Clause 2(c)(i) of the Consent Paper
incorporated in the Decree of Judicial
Separation granted by the Supreme Court
of South Africa (Cape of Good Hope Provincial
Division) on the 21st August 1975 is
hereby exercised as at the 30th August
next."
While the attorneys of both parties were making the necessary arrangements to
register transfer of Berg-en-Dal in the name of the
wife, her husband
unilaterally elected, for various reasons, not to proceed with such
registration. The wife then applied in the
Court
a quo
for an order
compelling her husband to proceed with the transfer. He opposed the application
on several grounds. What is germane
to the present appeal is his contention in
paragraph 2(b) of his
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answering affidavit "that unless Abe Swersky &
Associates
at the time of the signature of the letter of the 14th
June
1985 addressed to me had a written Power of Attorney from
the
Applicant to act in exercising the option, the option
has not been validly
exercised". This contention was founded
on the provisions of section 2(1) of
the Alienation of Land
Act No 68 of 1981 (date of commencement 19 October
1982)
which reads as follows:
"No alienation of land after the commencement of this section shall, subject
to the provisions of section 28, be of any force or effect
unless it is
contained in a deed of alienation signed by the parties thereto or by their
agents acting on their written authority."
According to section 1(1) of the said Act the word
" '
alienate
' in relation to land, means
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sell, exchange or donate, irrespective of whether such sale,
exchange or donation is subject to a suspensive or resolutive condition,
and
'
alienation
' has a corresponding meaning."
While the Court
a quo
accepted that Abe Swersky & Associates were
not authorised in writihg to exercise the option as agents on behalf of the wife
(p 544 C) it was, however, held that the provisions of section 2(1) of the said
Act were not applicable to alienations of land pursuant
to an order of Court as
was, in the view of WILLIAMSON J, the position in the present matter (p 545 C).
The wife's application was
accordingly allowed with costs. The husband now
appeals to this Court against that decision.
In this Court it was common cause that the wife had not authorised Abe
Swersky & Associates in writing to exercise the option
on her behalf. Mr
Weinkove
on behalf
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of the wife, however, contended that the provisions of section
2(1) of the said Act were inapplicable to the present situation inasmuch
as, on
a proper construction of the relevant provisions of the Consent Paper, the
parties entered into an agreement to confer on
the wife no more than a right of
election to acquire the husband's half-share in Berg-en-Dal against payment by
her of R60 000, half
of which was to go directly to him while the other half was
to be treated in a certain manner specified in the Consent Paper. This
contention in effect substitutes "election" for "option" where it occurs in
Clause 2(c)(i),(ii) and (d)(i). The soundness of this
contention depends on the
proper construction of the relevant provisions of the Consent Paper. In
construing these provisions I propose
to apply the following well-known
principles of interpretation of written contracts as enunciated by WESSELS CJ
in
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Scottish Union & National Insurance Co Ltd v Native
Recruiting
Corporation Ltd
,
1934 AD 458
at p 465-466:
"We must gather the intention of the parties from the language of the
contract itself, and if that language is clear, we must give
effect to what the
parties themselves have said; and we must presume that they knew the meaning of
the words they used. It has been
repeatedly decided in our Courts that in
construing every kind of written contract the Court must give effect to the
grammatical
and ordinary meaning of the words used therein. In ascertaining this
meaning, we must give to the words used by the parties their
plain, ordinary and
popular meaning, unless it appears clearly from the context that both the
parties intended them to bear a different
meaning. If, therefore, there is no
ambiguity in the words of the contract, there is no room for a more reasonable
interpretation
than the words themselves
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convey. If, however, the ordinary sense of the words
necessarily leads to some absurdity or to some repugnance or inconsistency with
the rest of the contract, then the Court may modify the words just so much as to
avoid that absurdity or inconsistency but no more."
I can find no ambiguity in the language of the provisions in question of the
Consent Paper. Nor was I referred to any ambiguity. What
militates very strongly
against the construction advanced by Mr
Weinkove
is the fact that Clause
2 (c)(i) expressly mentions "a purchase consideration of R60 000" which is in
perfect conformity with an
intention of the parties to confer on the wife as
grantee an option to purchase her husband's half-share in Berg-en-Dal at a price
of R60 000 before 31 August 1985. I can find nothing in the context of the
relevant provisions which indicates that
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the intention of the parties was that the word "option"
to
purchase should bear a meaning other than its ordinary meaning.
The
ordinary meaning of an option to purchase a certain thing
at a certain price
(as in the context of the Consent Paper)
is an agreement whereby the grantor
undertakes to keep open
an offer to sell for a period of time within which
the grantee,
by exercising the option, may elect to purchase it at
the
fixed price. See
Hersch v Nel
, 1948(3) SA 686(A) at p
695. In
my judgment the clearly stated intention of the parties
in the relevant
provisions was to confer until 31 August 1985
on the wife as grantee a right
to purchase the half-share
of her husband in Berg-en-Dal for the sum of R60
000 subject
to the terms regarding payment of the R60 000. Moreover,
since
the option was stated to be in favour of the wife "or
her nominee" it evinces
an intention that the option to purchase
was cedable by her to a third party.
Contrary to what Mr
/16...
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Weinkove
submitted it was an option to purchase in the
commercial sense of the word. In the light of the aforegoing the contention of
Mr
Weinkove
is in my judgment untenable. Subject to the second contention
of Mr
Weinkove
which I am about to consider, it follows that the
husband's attack against the validity of the exercise of the option to purchase
by Abe Swersky & Associates without authority in writing by his wife was
well taken.
I now turn to consider the second contention of Mr
Weinkove
. The gist of this contention was that once the Consent Paper was
made an order of Court it acquired a different status which removed
it from the
sphere of purely contractual relationships between the parties. According to the
argument she did not seek the enforcement
of a deed of sale which amounted to an
alienation of land, the formalities of which were prescribed by the
Alienation
of Land Act No
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68 of 1981. She sought the enforcement of an order of
Court
in regard to the settlement of her property rights as contained
in the Consent Paper. The order of Court conferred on her
a right to
exercise an option to acquire her husband's half-
share in Berg-en-Dal. Because the exercise of the option
was pursuant to
an order of Court it was not subject to the
formalities prescribed by the
Alienation of Land Act No 68
of 1981
. The
exercise of the option was regulated by the
common law which rendered the
oral authorisation of an agent
by her to act on her behalf lawful. This
contention was
founded on the following
ratio decidendi
of the Court
a quo
at
p. 544 H-545 D:
"The status of the rights conferred by the consent paper is not merely that
of contractual rights. Once the consent paper became an
order of Court it
acquired a different status, a status which in
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my view is far removed from that of a purely contractual document creating
only a contractual relationship between the parties. It
is difficult to define
precisely the parameters of that status. One of the features of the new status
is that it can be enforced
by means and in ways not available to purely
contractual relationships. Another feature is that enforceable rights and duties
are
created which could not be created by simple contractual methods alone. A
joint estate is divided
stante matrimonio
in a way in which the parties
by their own extra-curial contractual efforts could not themselves achieve. In a
very real sense this
is the Court presiding over the division of the joint
estate. And when a Court does that, it is not, in my opinion, obliged to comply
with whatever statutory formalities may be required in a purely contractual
situation. The Court can, by virtue of it being a Court
of law,
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order that one party in a matrimonial dispute, transfer property to the other
party against payment of a certain consideration. No
question of statutory
formalities arises in that situation. The fact that the Court order has, as its
foundation, an agreement between
the parties does not alter the position. When
such agreement is elevated to the status of an order of Court it acquires a
fundamentally
different nature for it is now the voice of the Court, albeit the
voice speaking the language of the parties in their agreement.
"In my opinion the Act, notwithstanding
its wide terms, is not intended to, nor
does it, intrude upon alienations
of
land which take place under the aegis
of an order of Court. And that is
precisely
what the position is in this case. By
order of Court the
applicant had a right
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to exercise an option and she was, in my view, entitled to
exercise that right in any of the ways permitted by the common law. That
the
option was exercised by an orally authorised agent is not seriously disputed by
respondent and is in fact manifestly the case."
To determine the correctness of this contention it is necessary to
investigate the legal nature of a decree of judicial separation
a mensa et
thoro
.
Judicial separation
a mensa et thoro
originated in medieval
Canon.Law owing to the strong opposition of the Christian Church to divorce. It
was a legal device which relieved
spouses in certain circumstances from the
obligation of cohabiting while the marriage bond remained intact. It was adopted
in the
law of the Province of Holland where it was used extensively. It was
granted by a decree
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with a view to the ultimate reconciliation of the spouses and
the resumption of their cohabitation (
op eene reconciliatie ende weder
vereeniging
). See de Groot (1583-1645) 1.5.20, Van Leeuwen (1626-1682)
RHR
1.15.3,
C.F
. 1.1.15. 4 et 17, Brouwer (1625-1683)
De Jure
Connubiorum
lib.2 cap 29 nr 18, Voet (1647-1713) 24.2.16, Van Bynkershoek
(1673-1743),
Quaestiones Juris Privati
lib 2 cap 8, Lybrechts (1 1758)
Redenerend Vertoog over 't Notaris Ampt
1 Deel hoofstuk 12 nr 18. The
decree could also order a separation of the joint estate
(
boedelscheiding
) where the marriage was in community of property. The
husband could also be interdicted from administering his wife's separate estate.
It was also the Dutch practice to incorporate in a decree a consent paper
(
pactum separationis bonorum
,
acte van separatie
) in which the
spouses regulated their property rights by means of
boedelscheiding
and
by restricting the husband's marital
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authority. See Van Bynkershoek,
op.cit
., lib 2 cap
9,
Van der Keessel ad Gr 1.5.18 et. 3.21.11. According to the
common law
one of the invariable conseguences of a marriage
from its very inception was
that it was either in or out of
community of property which could not be
altered by an act
inter vivos
between the spouses during the
subsistence of
the marriage. See Gr. 2.12.5, Groenewegen
(1613-1652)
ad
Cod 4.29.11, ad Cod 5.12.25. The effect of this
principle
of the common law on an order of
boedelscheiding
and
the
restriction of the husband's marital power was the subject
of much
controversy among the Roman-Dutch jurists. See
Groenewegen ad Cod 5.19.1,
Voet 24.2.17 e_t 19, de Groot
3.21.12, Schorer (1717-1800) ad Gr 1.5.20,
Scheltinga
(1708-1765) ad Gr 3.21.8, Van Bynkershoek,
op.cit
.,
lib 2 cap 9, 2
Observationes Tumultuariae Novae
968,
3
Observationes Tumultuariae
Novae
1626. The correct solution
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is undoubtedly to be found in Van der Linden (1759-1835)
1.3.9 viz. that the effect of a decree of judicial separation
providing
for
boedelscheiding
and restriction of the marital
power was to
suspend provisionally community of property and
the marital power until the
resumption of cohabitation by
the spouses caused the revival of the full
consequences of
the marriage. In referring to Van der Linden,
loc.cit
.,
KOTZÊ J P in B
anks v Clement N O
,
1921 CPD 197
at p 201 correctly
held as follows:
"The view of Van der Linden, that there is only a suspension of the rights
and consequences of the marriage, which revive on a reconciliation
between the
spouses,has generally been recognized in South Africa as a correct statement of
the law."
Moreover, there is nothing sacrosanct about a decree of judicial separation.
It lapses automatically
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without an order of Court setting it aside if a reconciliation
between the spouses takes place and they resume cohabitation. All the
personal
and property consequences of the marriage, in so far as they were suspended by
the decree of judicial separation,revive
ipso facto
. See
De Villiers v
De Villiers
,
1938 CPD 565
at p 567-568.
The fallacy in the
ratio
decidendi
of the Court
a quo
is that an order of Court never
per
se
directed the husband to transfer his undivided half-share in Berg-en-Dal
to his wife. Had there been such an order of Court the
causa
for the
registration of the transfer would have been the order of Court. That is,
however, not the factual position in the present
matter. It is clear from
paragraph 7 of the wife's founding affidavit that she based her application to
the Court
a quo
on her purported exercise of the option to purchase which
Clause 2(c)(i) and (ii) of the Consent Paper
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conferred on her. Had she lawfully exercised the option to
purchase the
causa
for the registration of transfer of her husband's
half-share to her or her nominee would have been a lawfully concluded sale. The
formalities regarding such a sale would have to comply with the provisions of
the
Alienation of Land Act No 68 of 1981
. The husband's defence that the
purported purchase by his wife of his undivided half-share in Berg-en-Dal was
invalid was therefore
sound. There is accordingly no merit in the second
contention of Mr
Weinkove
. In the light of the aforegoing it is clear
that the
ratio decidendi
of the Court
a quo
is wrong.
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It follows that the appeal must succeed. The following orders
are granted:
1.
The appeal succeeds with
costs.
2.
The order of the Court
a quo
is altered to read as follows:
'The Application is
dismissed with costs'.
C. P. JOUBERT JA.
HOEXTER JA)
VAN HEERDEN JA) Concur.
NESTADT JA)
KUMLEBEN JA)
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