1

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Appeal Case No.: A93/2024
Court a quo Case No: 552/2022

In the matter between:
AYANDA MALUNGA First Appellant
(First Respondent a quo)
NTSHONALANGA FISHING (PTY) LTD Second Appellant
(Registration No.: 1997/004602/07) (Second Respondent a quo)
and
THULILE QUEEN SANQELA Respondent
(Applicant a quo)

Date of Hearing: 24 January 2025
Date of Judgment : 24 March 2025

Coram : Allie J, Da Silva -Salie J et Holderness J


JUDGMENT

2 HOLDERNESS J

Introduction [1] In this appeal the first appellant, Ms Ayanda Malunga (Ms Malunga) and the
second appellant , Ntshonalanga Fishing (Pty) Ltd (the Company) seek to set aside
the judgment and order of the Court a quo ( per Dolamo J) .
[2] In the proceedings before the court a quo, the respondent in this appeal , Ms
Thulile Queen Sanqela (Ms Sanqela) , the applicant in the court a quo, sought an
order declaring a Shareholders Agreement and Resol ution (the agreement) in
respect of the sale of 50% of the shares in the Company , to the second respondent
before the court a quo, to be valid and enforceable.
[3] The agreement was entered into between Ms Sanqela and Mr Mtunzi
Malunga (Mr Mal unga), t he late husband o f Ms Mal unga, on 29 March 2018. The
Company is the holder of several fishing rights, including a deep sea hake trawling
licence. The former shareholders in the C ompany wer e Mr Malunga and Mr Balindi
Sanqela (Mr Sanqela), the late husband of Ms. Sanqela.
[4] After Mr Sanqela’s passing, Mr Malunga became the sole director of the
Company , until his death in 2020. Ms Sanqela and Ms Malunga were appointed as
directors of the Company on 28 September 2020.
[5] In terms of the agreement Mr Malunga granted an option to Ms Sanqel a to
purchase his full shareholding in the company . The option was exercised by Ms
Sanqela. At the time of the conclusion of the agreement Mr Malunga was married in
community of property to Ms Malunga.
[6] The appellants contend that the agreement is void, and therefore
unenforceable, on the following grounds:

3 6.1 Ms Malunga h ad not consented to the conclusion of the agreement,
which she contends was required in terms of section 15 of the M atrimonial
Property Act 88 of 1984 (‘the MPA’ ).

6.2 The transfer of shares is subject to the Marine Living Resources Act,
18 of 1998 (‘the MLRA’) which precludes the transfer of fishing rights without the consent of the M inister ; and
6.3 The agreement is inc hoate.

[7] The court a quo held that the agreement was self -standing and choate. It
further held that as Ms Malunga sought a declarator and not a transfer of shares or rights, section 21(2) of the MLRA would only find application when she exercise d the
option.
[8] The court a quo found that as Ms Sanqela was legally represented at the
time she entered into the agreement , she could not reasonably have been expected
to know that Ms Malunga had not consented thereto and is therefore protected by
the provision set forth in s 15(9)(a) of the MPA. The applicant a quo (respondent on
appeal) was accordingly successful, and the agreement was declared by the court a
quo to be valid and enforceable.
Factual Background
[9] The former directors of the company, Mr Sanqela and Mr Malunga, each held
50% of the issued share capital of the company. Mr. Sanqela passed away on 15
December 2015. Mr . Malunga passed away on 27 September 2020.
[10] Ms Sanqela inherited her husband’s 50% shareholding in the Company and
was duly registered as a shareholder and member on 27 June 2016 .
[11] After Ms Sanqela became a shareholder in the Company , certain issues arose
between her and Mr Malunga regarding the conduct of the business of the Company .

4 [12] Negotiations ensued, during which Mr and Ms Malunga were represented by
an attorney , Mr Klerck of Herold Gie Inc (‘Mr Klerck’) , and Ms Sanqela was
represented by Ms Makan of Webber Wentzel Attorneys (‘Ms Makan’). The
negotiations culminated in the agreement, drafted by Mr. Klerck, and presented to
Ms Sanqela for signature.

The agreement
[13] The salient terms of the agreement are as follows:
13.1 Mr Malunga extended an option to Ms Sanqela to purchase his shares
in the Company at a future date (the shares) , subject to him being afforded
sufficient time, in his capacity as the sole director of the C ompany, to use and
apply his knowledge and experience to grow the business and secure long-term fishing rights (the option) .
13.2 The value of the shares was to be determined by an independent
auditor, subject to Ms Sanqela agreeing to the provisions set out in the
agreement .
13.3 The option was extended subject to certain conditions, including inter
alia that Mr Malunga was to remain the sole director and manage the
business and Ms Sanqela would remain in the employment of the C ompany ,
and would agree to a fair and market related increase in remuneration for Mr Malunga. Lastly , Ms Sanqela w ould not be involved in the operations side of
the business .
13.4 Should Ms Sanqela breach any of the conditions, the option would
lapse, and Mr. Malunga would be entitled to purchase her shares in the
Company .

[14] Ms Sanqela’s evidence was that, at all material times prior to and after the
conclusion of the agreement, she and Mr Malunga were legally represented.

5 [15] According to Ms Sanqela, at the time of negotiating and signing the
agreement, she accepted that all formal and legal requirements had been complied
with.

[16] Ms Sanqela stated that , by presenting her with the agreement for signature,
Mr and M s Malunga through their attorney represented to her that her acceptance of
the terms thereof and signature of the agreement would result in a valid and binding agreement between herself and Mr Malunga.
[17] It is common cause that Mr Malunga and Ms Sanqela gave effect to the
agreement , and that Ms Sanqela complied with the conditions set out therein
pertaining to the exercise of the option.
[18] An issue which was in contention before the court a quo is whether Ms
Sanqela was aware, at the time of the conclusion of the agreement , that Mr Malunga
was married to Ms Malunga in community of property and therefore required his
wife’s consent to alienate his shares in the company.
[19] Ms Sanqela denie d that she was aware that the Malungas were married in
community of property and that Ms Malunga had not consented to the alienation of
shares at the time. According to her version, she believed that Ms Malunga was in
any event aware of the agreement and had consented to its conclusion.
[20] Ms Malunga’s evidence was that the first time she became aware of the
agreement was on 20 October 2020, when Ms Sanqela’s attorney addressed an
email to her attorney stat ing that the proposed option agreement would merely
reaffirm Ms Sanqela’s and Ms Malunga’s rights in terms of the agreement .
[21] Ms Sanqela further contended that the agreement ‘ unequivocally set out that
it contemplated the conclusion of further substantive agreements .’
[22] Mr Klerck deposed to an affidavit in which he stated that it was unnecessary
and premature for the parties to finali se compliance issues at the commencement of
negotiations . He stated further that it was common commercial practice to conclude
6 draft agreements before calling for and procuring the necessary ‘ compliance
documentation.’

[23] According to Mr Klerck, as the parties had not reached consensus on the
shareholder agreement, which was still to be negotiated and concluded, the issue of
whether the spousal consent was required for the agreement was not addressed at
that stage.
[24] Lastly, Ms Sanqela contends that as an experienced businessman and
director of 25 companies at the time of his death, Mr. Malunga in any event
concluded the agreement in the ordinary course of business.
Section 15 of the MPA
[25] In terms of s 15(2)( c) of the MPA a spouse married in community of property :

(2) ….. shall not without the written consent of the other spouse –
…
(c) alienate, cede or pledge any shares, stock, debentures, debenture
bonds, insurance policies, mortgage bonds, fixed deposits or any similar assets, or any investment by or on behalf of the other spouse in a financial institution, forming part of the joint estate.’
[26] Mr. Randall, who appeared on behalf of Ms Sanqela, argued that the
agreement does not fall within the ambit of the categories of assets or agreements
prescribed in s 15(2)( c) of the MPA , as it did no more than extend a right to the
respondent to exercise an option to purchase the shares at a future date.
[27] The court a quo found that whilst it was satisfied that there was a self -
standing agreement of an enforceable option, on its own, this agreement would not
amount to an alienation, cession, or pledge of these shares themselves. It would only be on the conclusion of the main contract of sale of the shares that the operation of section 15(2)(c) will be triggered. The court therefore found that section
15(2)(c) of the MPA does not avail Ms Malunga, n or the Company.
7
[28] It is apparent that there existed an agreement in principle between Ms
Sanqela and the late Mr Malunga, to grant an option to sell the shares in the future. Following upon the successful exercise of the option by Ms Sanqela, a valid and binding agreement of sale of shares and transfer of shares would have to occur.
[29] To find that a separate eventual transfer of shares would take place upon the
happening of certain events and fulfilment of certain conditions, as distinct from the agreement to sell shares, i n our view places an artificial construction on the intention
of the parties as expressed in their agreement .
[30] The court a quo, accepting that it may be wrong in this regard, turned to
consider whether if section 15(2)( c) found application, the agreement could be saved
by the provisions of s 15(9)( a), which provides as follows:
‘(9) when a spouse enters into a transaction with a person contrary to the
provisions of subsection two or three of the section, or an order under section
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 two or three, or while the power concerned of the spouse has not been suspended, as the case may
be.’
[31] The last section of the MPA which finds application is section 15(6), which
reads in relevant part as follows:
‘(6) The provisions of paragraphs (b), (c), (f), (g) and (h) of subsection (2)
do not apply where an act contemplated in those paragraphs is performed by a spouse in the ordinary course of his profession, trade or business.’
The issues
8
[32] The legal questions which the court a quo was called upon to determine w ere
the following:
32.1 whether the agreement is one that is rendered invalid by the provisions
of section 15(2)(c) of the MPA f or want of spousal consent ;
32.2 If the agreement is invalid in terms of section 15(2)( c) of the MPA, is it
saved from invalidity by section 15( 6) as it was concluded in the ordinary
course of business ?
32.3 Alternatively , is the agreement saved by section 1 5(9)(a), and deemed
to have been entered into with the consent required as, on the facts before the court a quo, can Ms Sanqela be said to have not reasonably known that
the transaction was entered into contrary to the provisions of section 15 (2)(c)
in circumstances where the authorities place a duty on her or in this case, her legal representative to have made reasonable inquiries ?

32.4 If the agreement is found to be valid, is it still enforceable in light of the
provisions of section 21 of the MLRA, for want of approval of the minister for
the transfer of shares ?

32.5 Lastly, w hether the transaction embodied in the document signed by Mr
Malunga and Ms Sanqela, is in choate and therefore does not constitute an
alienation of property forming part of the joint estate of Mr Malunga.
Is an option to purchase shares at a future date an alienation of shares as envisaged in section 15(2) of the MPA? [33] It was argued on behalf of Ms Sanqela before the court a quo that an option is
merely an offer which would upon acceptance give rise to a valid contract . In dealing
with the submission, t he court cited Christies Law of Contract:
1

1 7th edition at p 66.
9
‘To understand the true nature of an option it is best to analyse it into two
parts – an offer to enter into the main contract together with a concluded
subsidiary contract (the contract of option) finding the offer or to keep that
offer open for a certain period. On this analysis it is easy to see that the
offeror is contractually bound to keep this offer open, and if he breaks this
contract of option by disabling from performing it or by expressly or impliedly
repudiating it, he will be liable for damages for breach of contract .’
[34] Based on the foregoing the court a quo held that the agreement, as being a
choate and self-standing option capable of enforcement, that does not amount to an
alienation, cession or pledging of the shares themselves.
[35] We agree that it is a self -standing and choate agreement, however, the option
in this case was exercised by Ms Sanqela, therefore, it is no longer a question of if
the shares will be transferred and alienated but a question of whether the underlying agreement or causa that gives rise to the later transfer of shares was validly
concluded without spousal consent. Section 15(2)(c) is therefore triggered because
the option is a binding agreement to sell the shares in the future (t he future having
arrived after the death of Mr Malunga) and therefore it is in substance and effect, an
agreement to alienate.
Is the agreement enforceable?
[36] It is trite that before an agreement becomes enforceable, the contracting
parties must reach agreement on all material term s.
2
[37] In the preamble to the agreement, it is recorded that the parties agree to the
option to purchase shares being extended to Ms Sanqela, subject to her agreement
to the provisions set out therein. She agreed to the provisions of the agreement, and
they were given effect to. An argument that there was no agreement on the material
terms in respect of the option agreement accordingly lacks merit.

2 Pitout v North Cape Livestock 1977(4) SA at 851F -G; Kenilworth Palace Investments (Pty) Ltd v Ingala &
Others 1984 (2) SA 1 (C) at 12A.
10
[38] As pointed out by Mr Randall, the company was capable of being run without
Ms Sanqela and Mr Malunga entering into a shareholders’ agreement. This in fact
came to pass from the date on which the agreement was concluded in March 2018,
until the passing of Mr Malunga in September 2020.
[39] The agreement expressly provided t hat the option was to be exercised by M s
Sanqela by service of a notice on Mr Malunga, and that the consideration to be paid
for the shares was a fair market value to be determined by an independent auditor
within 30 days of a valuation being determined. The agreement provided that the
option was subject to the conditions stipulated in clause 6 thereof and set out the consequences of a breach of the agreement by Ms Sanqela. All the material terms
were agreed between the parties.
Was the agreement entered into in the ordinary course of business?
[40] If the agreement was entered into by Mr. Malunga in the ordinary course of
business, it will be enforceable in terms of section 15(6) of the MPA.
[41] In Strydom v Engen Petroleum
3 the SCA held that the determination of
whether a transaction was one which fell within the ordinary course of business of that person was a question of fact to be determined objectively with reference to what is to be expected of a businessman.
[42] Whilst it is apparent from the evidence before the court a quo that Mr Malunga
held interests in and was at various times a director of numerous companies, the business of these companies was not trading in shares. It is therefore clear that the agreement was not in the ordinary course of Mr. Malunga’s business. Mr. Randall did
not place much emphasis on this argument at the hearing of the appeal.
[43] The court a quo, correctly in our view, found that more was required in the
way of evidence to show that the most probable inference to draw from the proven

3 2013 (2) SA 187 (SCA) at para [10].
11 facts is that the disposition of Mr. M alunga's shares when he exited, in the entities in
which he had an interest , and in terms of the agreement, was in the course of his
business .

If the agreement constituted an alienation, is it rendered void by the provisions of section 15(2)(c) ?
[44] If the option constitutes an alienation for the purposes of section 15(2)(a) of
the MPA, then the central issue which arises for determination in this appeal is
whet her Ms. Sanqela is entitled to the protection afforded to third party purchasers
by section 15(9)(a). If she is not, the sale is void for want of the consent of Ms.
Malunga. If she has brought herself within the protection of the deeming provision in section 15(9)(a) , Ms. Malunga is deemed to have consented to the agreement and
the option is enforceable.
[45] In Marais NO and Another v Maposa and Others
4 (Maposa) the SCA stated
as follows:

‘The effect of s 15 may be summari sed 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”.


4 Marais NO and Another v Maposa and Others [2020] ZASCA 23; 2020 (5) SA 111 (SCA) at para 26.
12 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.
….
[46] In Maposa the court clearly set out the requirements for an agreement to be
validated in terms of section 15(9)( a), as follows
5:

‘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.

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.
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:

5 Ibid at paras 28 to 32
13 “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. To put it at its lowest, the third party is “put
on enquiry”.

[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 , Dlodlo J, after referring to the views of Steyn, 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.”

[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,
14 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.’
This approach and the test to apply in these circumstances, which I approve, was most recently endorsed by this Court in Mulaudzi v Mudau and Others.
6
[47] The Court a quo observed that the nature and form of the inquiry which the
third party is required to undertake depends on the circumstances of each case, and that such an e nquiry may also be by the third part y’s agent, for example an attorney.
[48] Ms Malunga does not dispute that the Ms Sanqela was not aware of the fa ct
that Mr Malunga was married in community of property and Ms Malunga had not consented to the conclusion of the option agreement. The first leg of the test in terms
of section 15(9)( a) is accordingly met. The only question that remains is whether Ms
Sanqela could reasonably have known that consent was required and that it had not
been given.

[49] In terms of the general principle that she who asserts must prove, the party
who invokes the protection of s 15(9) (a) must prove that the requirements in terms
thereof have been met.
7

[50] After considering the findings in Maposa, the court a quo found that the
enquiry required of Ms Sanqela as the third party was not prescribed, and that
whether that enquiry was sufficient must be viewed in the context of the facts of each case.
[51] In the present matter, unlike in Maposa, both parties were represented by
attorneys when the agreement was concluded.
[52] The court a quo held that as Ms. Sanqela was represented, it could not be
expected of her to go over her legal representatives and directly inquire from Mr.

6 Mulaudzi v Mudau and Others (1034/2019) [2020] ZASCA 148 (18 November 2020).
7 Maposa at para 28.
15 Malunga regarding the marital regime governing his marriage, and, if it was one in
community of property , to ascertain whether he had the written consent of his
spouse.

[53] The court a quo found that this was the responsibility of the legal
representatives who assisted the parties , and that in the circumstances as a
reasonable person she cannot have known or have been expected to know that their marriage was one in community of property , or that Ms Malunga longer had not
given her written consent .
[54] It is necessary for us to now determine whether this finding is correct, and
more specifically if Ms. Sanqela is protected under section 15(9)(a) where she did not make any enquiries and relied solely on her attorney as her agent to do so. The
question which arises is whether this was this an objectively reasonable stance for
her to adopt .

[55] In essence, the court a quo put Mr Malunga’s attorney on enquiry , and did not
consider that the duty to make reasonable enquiries, as contemplated in section
15(9) (a), of the Act, in fact rested on the attorney of the third party, Ms Sanqela.
[56] In our view, as the party seeking to avail herself of the protection afforded in
terms of section 15(9)( a), Ms Sanqela or her attorney, acting as her agent, was
obliged, if she wished to invoke the deeming provision, to make the necessary and
reasonable enquiries to ascertain whether Mr Malunga was married in community of
property, and if so, whether his spouse had consented to the transaction.
[57] By accepting the client’s instruction and undertaking to provide them with the
legal services necessitated by such instruction in exchange for a fee, a contract is
formed between the client and the legal practitioner. It is implied in such contract that
the legal practitioner represents to the client that they have the necessary skill,
16 knowledge and diligence to perform their duties as would be expected of a legal
practitioner with ordinary skill.8

[58] Ms Sanqela’s attorney, Ms Makan’s failure to make the necessary enquiries
was unreasonable in the circumstances of this matter . Her omission in this regard
must be imputed to Ms Sanqela, because as he r attorney and agent, he was
ethically and statutorily duty bound to represent her client’s interests to the best of
her ability , and to act in accordance with h er mandate to represent her on all lega l
matters pertaining to the transaction given her legal expertise.

[59] The failure of Ms Sanqela’s attorney to inquire about the matrimonial property
regime applicable to Mr Malunga and consequently and to inquire about Mr Malunga
having spousal consent, means that Ms Sanq ela did not discharge the duty to take
all reasonable steps to make that inquiry. In the circumstances she cannot avail
herself of the protection of section 15(9)( a).

[60] In applying the authority set out in paragraph 46 above, it is our view that it
was Ms Sanqela and her attorney who were required to make reasonable enquiries
in this regard. It is clear that he failed to do and on this basis Ms Sanqela failed to
discharge the burden necessary to invoke the deeming provision in section 15(9)( a).

Conclusion

[61] In the result, the Respondent ’s failure to make the necessary and reasonable
inquiry, vitiates the agreement due to lack of spo usal consent and the appeal must
succeed.
Costs


8 see Honey and Blanckenberg v Law 1966 (2) SA 43 (R) at 46E -F). https://www.derebus.org.za/the-legal -basis -of
a-legal -practitioners -liability -for-negligence-in -execution- of-mandate/

17 [62] Costs must follow the result. The appellant s have been completely successful,
therefore they are entitled to the costs of the appeal.

Order
[63] It is ordered that:

63.1.1 The appeal is upheld.
63.1.2 The order of the court a quo is set aside and replaced with an order that the Respondent’s application is dismissed.
63.1.3 Respondent is ordered to pay the costs .

HOLDERNESS J
ALLIE J
I agree and it is so ordered.
DA-SILVA SALIE J
I agree.
APPEARANCES
For the Appellants: Adv A Oosthuizen SC
Instructed by: Herold Gie Attorneys
Mr HC Stubbings
For the Respondent : Adv R Randall
Instructed by: Schreuder Incorporated Attorneys