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[2020] ZASCA 148
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Mulaudzi v Mudau and Others (1034/2019) [2020] ZASCA 148 (18 November 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 1034/2019
In
the matter between:
ROTONDWA
MULAUDZI
APPELLANT
and
MATODZI
PETRONELLA MUDAU
FIRST RESPONDENT
AVASHONI
THOMAS MUDAU
SECOND RESPONDENT
THE REGISTRAR OF
DEEDS,
POLOKWANE
THIRD RESPONDENT
Neutral
citation:
Mulaudzi
v Mudau and Others
(1034/2019)
[2020] ZASCA 148
(18 November 2020)
Coram:
VAN
DER MERWE, MAKGOKA and PLASKET JJA and LEDWABA and MABINDLA-BOQWANA
AJJA
Heard:
11
September 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties' legal representatives by email. It has been published
on the
Supreme Court of Appeal website and released to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 18 November
2020.
Summary:
Matrimonial
Property Act 88 of 1984
–
ss 15(2)
(a)
and
15
(9)
(a)
–
spouses married in community of property – sale of fixed
property by one spouse without the consent of the other spouse
–
whether in terms of
s 15(9)
(a)
consent deemed to have been given.
ORDER
On
appeal from
:
Limpopo Division of the High Court, Polokwane (Makgoba JP, Phatudi
ADJP and Muller J, sitting as the full court):
(a) The appeal is
upheld with costs.
(b) The order of the
court below is set aside and replaced with the following order:
‘
The
appeal is dismissed with costs.’
JUDGMENT
Ledwaba
AJA (Van der Merwe, Makgoka and Plasket JJA and Mabindla-Boqwana AJA
concurring)
[1]
The issue in this appeal concerns the application of s 15 of the
Matrimonial Property Act 88 of 1984 (the Act) and the validity
or
otherwise of the sale of an immovable property by the second
respondent, Mr Avashoni Thomas Mudau, who was married in community
of
property to the first respondent, Ms Matodzi Petronella Mudau, to the
appellant, Ms Rotondwa Mulaudzi, without the consent of
his spouse.
In the court of first instance, the Limpopo Division of the High
Court, Thohoyandou, Semenya AJ dismissed the application
brought by
the first respondent to set aside the sale. Her order was, however,
set aside by a full court of the Limpopo Division
of the High Court,
Polokwane, and an order was made setting aside the sale. Special
leave to appeal was granted by this court.
Only the first respondent
opposes the appeal. Consistent with their approach to the litigation
in the courts below the second respondent
and the third respondent,
the Registrar of Deeds, Polokwane (the Registrar), do not oppose the
appeal.
[2]
Section 15 of the Act reads as follows in relevant part:
(1) Subject 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.
(2) Such a spouse
shall not without the written consent of the other spouse—
(a)
alienate,
mortgage, burden with a servitude or confer any other real right in
any immovable property forming part of the joint estate…
…
(9) When a spouse
enters into a transaction with a person contrary to the provisions of
subsection (2) or (3) of this section, or
an order under s 16(2),
and—
(a)
that
person does not know and cannot reasonably know that the transaction
is being entered into contrary to those provisions or
that order, it
is deemed that the transaction concerned has been entered into with
the consent required in terms of the said subsection
(2) or (3), or
while the power concerned of the spouse has not been suspended, as
the case may be…’
[3]
The first and second respondents were married to each other in
community of property on 6 June 2003. They resided at erf 571
Makwarela-A township, in the district of Thohoyandou, Limpopo (the
property). The property was transferred and registered in the
name of
the second respondent in January 2002, before the marriage.
[4]
On 7 August 2012 the first respondent instituted divorce proceedings
by issuing summons against the second respondent. The action
was
defended. The Limpopo Division of the High Court, Thohoyandou,
granted a final order of divorce on 13 February 2014. The court
further ordered the second respondent to forfeit the matrimonial
benefits of the marriage in community of property.
[5]
On 5 July 2012, some time before the divorce was finalised, the
second respondent and the appellant entered into a sale agreement
in
respect of the property. It is not in dispute that the first
respondent never consented to the sale, as required by s 15(2)
(a)
of the Act. The property was duly registered in the name of the
appellant on 28 August 2012.
[6]
It was against this background that, in August 2013, the first
respondent filed her application in the court of first instance
against the second respondent, the appellant and the Registrar. She
sought an order, inter alia, ‘[r]eviewing and/or setting
aside
the sale agreement’ between the appellant and the second
respondent in respect of the property, alternatively, declaring
that
the sale agreement was null and void.
[7]
The first respondent’s case was that, because she was married
to the second respondent in community of property when the
sale
agreement was concluded, in terms of s 15(2)(
a
)
of the Act her consent was required for the valid conclusion of the
sale agreement. She had not provided the requisite consent.
Accordingly, so the argument went, the sale agreement was invalid and
should either be set aside or declared null and void.
[8]
The appellant opposed the application. The basis of her opposition
was that the second respondent had represented to her that
he was
unmarried. She said she did not know the second respondent, and
pointed out that at the time of the conclusion of the sale
agreement,
the records of the Registrar reflected the second respondent as the
sole owner of the property; the second respondent
recorded in the
sale agreement that he was unmarried; and, in an affidavit entitled
‘Declaration Proving Status’ deposed
to on the same date
and at the same place, the second respondent declared that he was
unmarried. On a proper reading of the appellant’s
evidence,
this affidavit was signed on the same occasion as the deed of sale.
Therefore, the appellant’s case was that she
did not know and
could not reasonably have known that the second respondent was
married and required the consent of his wife for
the sale.
[9]
Semenya AJ decided the matter on the basis of these facts. She held
that, in terms of s 15(9)
(a)
of the Act, the first respondent was deemed to have consented to the
sale because the appellant did not know and could not reasonably
have
known that the first respondent’s consent was required. The
full court took a different approach. It held that s 15(9)
(a)
of the Act had no application at all and that the appellant’s
reliance on it was ‘misconstrued’. Its finding
in this
respect stemmed from a misreading of s 15(9). The full court
substituted the word ‘person’ in the first line
of
subsection 15(9)
(a)
with
the word ‘spouse’. As a result, it quite erroneously held
that the subsection was inapplicable.
[10]
Instead, the full court declared the sale to be null and void on the
basis that the second respondent’s statement on
oath that he
was unmarried ‘was clearly false and amounted . . . to a
fraudulent misrepresentation that vitiates the contract’.
It
also said that it was this misrepresentation ‘and not so much
whether or not the [appellant] knew or could not have known
about the
true marital status of the seller . . . that goes to the root of the
deed of sale’. This finding was quite clearly
wrong. Only the
appellant could have elected to avoid the sale agreement on the
ground that it had been induced by a misrepresentation
and she
elected to do the converse.
[11]
The interpretation and application of the consent requirements of s
15(2)
(a)
and the deemed consent provision in s 15(9)
(a)
of the Act was recently dealt with comprehensively by this court in
Marais
and Another NNO v Maposa and Others
.
[1]
As correctly noted by Plasket JA, s 15 ‘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’.
[2]
The learned Judge continued:
‘
The
effect of s 15 may be summarised 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”. 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. This, it seems to me, flows from what Innes CJ,
in
Schierhout
v Minister of Justice
,
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”. 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.
…
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, the
burden of bringing s 15(9)
(a)
into play rests on the party seeking to rely on the validity of the
transaction.’
[3]
[12]
Contrary to the finding of the full court, s 15 – and s
15(9)
(a)
in particular – is central to this case. The appellant’s
version that she did not know that consent was lacking
has, in my
view, been established by her. As stated, the deed of sale described
the second respondent as unmarried and that was
confirmed by him
under oath in the affidavit headed ‘Declaration Proving
Status’. On this basis, the appellant could
also not reasonably
have known that consent had not been given.
[13]
Counsel for the first respondent submitted that the appellant should
have contacted the Department of Home Affairs to enquire
into the
marital status of the second respondent. There is no merit in the
submission for the reasons that follow. First, I doubt
whether the
Department of Home Affairs would have given personal information
about the second respondent to the appellant. Secondly,
in the light
of the description of the second respondent as unmarried in the deed
of sale and his express representation on oath
that he was unmarried,
it was not reasonably required of the appellant to make further
enquiries. The appellant did not know
the second respondent and
nothing indicated to her that he may not be telling the truth. In
other words, the appellant’s
reliance on the second
respondent’s representations was reasonable.
[14]
Even though, factually, the first respondent did not give consent, in
my view, s 15(9)
(a)
of the Act protects the appellant. The result is that, contrary to
the finding of the full court, the first respondent’s
consent
is deemed to have been given, with the result that the transaction is
valid and enforceable.
[15]
The remedy for any loss suffered by the non-contracting spouse, in
terms of s 15(9)
(b)
,
is an adjustment in her favour when the joint estate is divided. That
is academic in this case because, in the divorce proceedings,
an
order of forfeiture of the benefits of the marriage was made against
the second respondent.
[16]
This case was straightforward and uncomplicated. It did not justify
the costs of two counsel, and counsel for the appellant
rightly did
not press for such an order.
[17] In the result,
I make the following order:
(a) The appeal is
upheld with costs.
(b) The order of the
full court is set aside and replaced with the following order:
‘
The
appeal is dismissed with costs.’
_________________________
A P LEDWABA
ACTING JUDGE OF
APPEAL
APPEARANCES
For Appellant:
J Vorster (with him M Khomola)
Instructed
by:
MacRobert Attorneys, Pretoria
Claude
Reid Inc, Bloemfontein
For
First Respondent:
A D Ramagalela
Instructed
by:
TR Ligege Attorneys, Thohoyandou
Matsepes
Attorneys, Bloemfontein
[1]
Marais and Another NNO v
Maposa and Others
[2020]
ZASCA 23; 2020 (5) SA 111 (SCA).
[2]
Ibid para 27.
[3]
Ibid paras 26 and 28. (Footnotes
omitted.)