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[2020] ZASCA 167
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Vukeya v Ntshane and Others (518/2019) [2020] ZASCA 167; 2022 (2) SA 452 (SCA) (11 December 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no:
518/2019
In
the matter between:
MAFEMANI
COLLET
VUKEYA APPELLANT
and
SHALATE
NELLY
NTSHANE FIRST
RESPONDENT
REGISTRAR OF DEEDS,
JOHANNESBURG SECOND
RESPONDENT
MARINGA ATTORNEYS &
CONVEYANCERS THIRD
RESPONDENT
Neutral
citation:
Vukeya v Ntshane and
Others
(Case no
. 518/2019
)
[2020] ZASCA 167
(11 December 2020)
Coram:
MAYA P, DAMBUZA, MOCUMIE and PLASKET JJA and GOOSEN AJA
Heard
:
20 November 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 11 December
2020.
Summary:
Matrimonial Property Act 88 of 1984
–
ss 15(2)
(a)
and
15(9)
(a)
–
spouses married in community of property – sale and
registration of immovable property sold by one spouse without
the
consent of the other spouse – the non-contracting spouse deemed
to have consented to the sale because the third party
did not know
and could not reasonably have known that the first respondent’s
consent was lacking – appeal upheld.
ORDER
On
appeal from
: Gauteng Division of the High Court, Johannesburg
(Rome AJ sitting as a court of first instance):
1 The appeal is upheld
with costs.
2 The order of the high
court is set aside and replaced with the following:
‘
The application is
dismissed with costs.’
JUDGMENT
Mocumie JA (Maya P,
Dambuza and Plasket JJA and Goosen AJA concurring)
[1]
This is an appeal against the judgment of Rome AJ of the Gauteng
Division of the High Court, Johannesburg (high court) which
granted
the following order against the appellant:
‘
1 That the deed of
transfer dated 19 May 2009 and having registration number 015157/09
in respect of the property described therein
as Erf 12103 Diepkloof
Township Registration Division IQ be and is hereby cancelled.
2 The second respondent
is directed to give effect to the cancellation of the above deed of
transfer in records of the Deeds Registry
Office, Johannesburg.
3 The first respondent is
to pay the costs of the application.’
The
appeal is with the leave of the high court.
[2]
The appellant also filed an application to adduce new evidence. The
application was not opposed. At the hearing of the appeal
counsel for
the appellant, correctly so, abandoned the application because it was
not necessary as the evidence sought to be adduced
was not new but a
clarification and expansion of the answering affidavit.
[3]
The factual background is as gleaned from the admitted or undenied
facts in the founding affidavit of the first respondent,
Mrs Shalate
Nelly Ntshane. The first respondent and Mr Wilson Mkhatshane Ntshane
(the deceased) were married in community of property
on 13 May
1980. They lived together with their children in a residential
property situated at Erf 12103 Diepkloof, Soweto
(the property) until
the children became majors and left their home. Due to old age, the
first respondent moved to Potgietersrus
in Limpopo. The deceased
remained behind on the property with one of the children who later
left the deceased to reside alone.
In July 2013 the deceased became
gravely sick and passed away on 27 July 2013. On 8 September 2013,
the first respondent was appointed
by the Master of the High Court as
the executrix of the deceased estate. Then, she became aware of the
sale of the property by
the deceased to the appellant on 5 April 2009
without her knowledge or consent as required by
s 15(2)(
a
) of
the Matrimonial Property Act 88 of 1984 (the MPA).
[4]
Consequent to that, and some four years after her appointment as
executrix, the first respondent instituted proceedings against
the
appellant in the high court seeking the relief set out in para 1 of
this judgment. In his answering affidavit, the appellant
stated in
para 4 thereof:
‘
At the time I
purchased the property from the deceased/seller, he was staying alone
in the said property and he also confirmed to
me that he was not
married. He signed the deed of sale and also the transfer documents
alone as unmarried.’
The
appellant also annexed to his answering affidavit, a copy of the deed
of transfer/ title deed no: T66466/2000 describing the
deceased as
unmarried and as the sole registered owner of the property, as well
as a copy of the power of attorney to effect the
transfer to him
describing the deceased as unmarried. He furthermore, averred that he
purchased the property bona fide as he had
no knowledge that the
deceased was married to the first respondent at the time of the sale
and transfer of the property to him
by the deceased.
[5]
Before the high court, the first respondent contended that until her
appointment as executrix of the deceased’s estate
she was not
aware that the property had been sold to the appellant. She asserted
that the appellant was duty bound to have reasonably
made enquiries
as provided in s 15 of the MPA to establish whether the deceased was
married, if so, in terms of which marital regime,
and if it was in
community of property, whether she had consented to the sale and
transfer of the property.
[6]
Despite the appellant’s assertion that he did not know that the
deceased was married and that the deceased had not sought
the first
respondent’s consent to sell the property, the high court found
in favour of the first respondent. It found that
the mere
registration of a deed of transfer did not itself pass dominion
unless there was a real agreement, that is, an intention
on the part
of the transferor to divest himself of ownership and an intention on
the part of the transferee to acquire ownership.
With regard to the
meaning of ‘owner’, the high court had regard to
s 102
of
the
Deeds Registries Act 47 of 1937
, which states that in relation to
immovable property ‘owner’ means the person registered as
the owner or holder thereof.
The high court found that ‘owner’
does not necessarily mean that the person who was registered as the
owner in the
Deeds Office was in fact the legal owner and that such
interpretation of ‘owner’ was consistent with the
abstract theory
of property.
[7]
The high court concluded that, in the circumstances, the real
agreement was defective as in the absence of the consent of the
first
respondent, as co-owner, the deceased could not have formed the
requisite intention in the real agreement to transfer the
property to
the appellant. On that basis, the transfer of property was null and
void. Two observations are apposite at this stage.
First, the
application of
s 15(9)
(a)
of the MPA was not considered
at all by the high court. Secondly, if the approach taken by the high
court is correct,
s 15(9)
(a)
would be rendered purposeless.
[8]
Section 15
of the MPA, in particular
s 15(9)
(a),
is at the
centre of the determination of this appeal. The relevant parts of the
section provide:
‘
(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;
(b)
enter
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;
(3) A spouse shall not
without the consent of the other spouse –
(a)
alienate, pledge or otherwise burden any furniture or other
effects of the common household forming part of the joint estate;
.
. .
(c)
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.
. . .
(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
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
(2) or (3), or
while the power concerned of the spouse has not been suspended, as
the case may be;
(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), or that the power concerned has been suspended, as the case may
be, 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.’
[9]
The issue for determination in this appeal is straightforward.
Because it is not in dispute that the first respondent never
gave her
consent to the sale, the issue is whether the appellant has brought
himself within the protection afforded to third party
purchasers by
s
15(9)
(a)
. If he has not, the sale is a nullity for want of the
first respondent’s consent. If he has, the first respondent is
deemed
to have consented to the sale and is valid.
[10] Recently, this Court
in
Marais
NO and Another v Maposa and Others
,
[1]
was seized with deciding on the consequences of the failure to
acquire consent in terms of
s 15(3)
of the MPA. In this regard
this Court stated as follows:
‘
[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”. 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.
[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. In
Sishuba v Skweyiya and Another
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, the burden
of bringing s 15(9)
(a)
into play rests on the party
seeking to rely on the validity of the transaction.
[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.
[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:
“
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.”
The
same conclusion was reached in
Sishuba v Skweyiya and
Another
, 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.’
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.
[2]
[11]
Reverting to the facts, as alluded to already, it is common cause
that it was only in September 2013, upon her appointment
as executrix
of the deceased estate, that the first respondent became aware that,
without her knowledge or consent, the deceased
had sold the property
to the appellant on 5 April 2009 for R50 000. As a result of her not
having consented, she contended, the
sale was invalid. In her
replying affidavit, she stated in response to para 4 of the answering
affidavit quoted above, ‘I
note the contents of this
paragraph.’ In the absence of an explanation or response to
para 4 of the answering affidavit,
applying the
Plascon-Evans
rule
[3]
the version presented by
the appellant must be accepted.
[12]
The first respondent was legally represented at all times. Despite
this, however, her founding affidavit lacked particularity
in
important respects. Although it is stated that she moved back to
Limpopo, she did not say when exactly she did so. One must
infer that
it was before the sale in 2009. It is not stated when the last of the
children moved out of the house. No averments
are made of relevant
details pertaining to the period when the deceased fell sick and
died, such as where he was staying at the
time of his death. No
reference is made as to who was staying on the property when it was
sold and from the time it was sold.
[13]
It is not in dispute that the appellant was staying alone and
presented himself as unmarried when he and the appellant concluded
the sale agreement. This is different from the facts in
Visser
v Hull,
[4]
one of the cases relied upon by the first respondent, where the third
party was well-known to the contracting spouse, was
a relative of his
and knew from visiting his home that he lived with and had children
by a woman with whom he lived as man and
wife. In addition, in this
case, there are two official documents that supported the appellant’s
version that he was unaware
that the deceased was married to the
first respondent. First, the deed of transfer dated 19 May 2009
referred to the appellant
as unmarried. Second, the power of attorney
to pass transfer with the deceased’s signature appended to it
described the deceased
as unmarried. This all lends credence to what
the appellant stated from the outset, namely that he was not aware
that the deceased
was married and could not reasonably have known
that he was. In these circumstances, he could not reasonably have
been expected
to make further enquiries as suggested by the first
respondent.
[14]
This appeal falls squarely within the realm of
Mulaudzi
, the
facts of which are briefly as follows. The first and second
respondents were married to each other in community of property.
Sometime before they divorced, the first respondent, the husband, and
the appellant entered into a sale agreement in respect of
the
property which was duly registered in the name of the appellant. It
was common cause that at the time of the sale, the second
respondent,
the wife, had not consented to the sale of the property as required
by
s 15(2)
(a)
of the MPA.
[15]
The first respondent filed an application in the high court against
the second respondent, the appellant and the Registrar
of Deeds where
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.’
The high court found in
her favour. On appeal, 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’.
[16]
This Court found this approach to be incorrect and not in line with
several judgments, in particular, that of this Court in
Marais
.
It confirmed the order of the court of first instance which held that
‘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.’
[5]
[17]
The only difference between the facts in
Mulaudzi
and this case is that, in
Mulaudzi
,
one of the representations that the seller was unmarried was made
under oath. That, in my view, is not a material distinguishing
factor: in this case, the representation that the deceased was
unmarried was made in formal legal documents, one of which was signed
by the deceased. The appellant was entitled to rely on those
representations and nothing would have given him pause for thought,
and required him to enquire further. In any event, counsel for the
first respondent was hard-pressed to suggest any feasible and
reasonably practical enquiries that could be made in ascertaining the
deceased’s marital status.
[18]
My conclusion is that, as in
Mulaudzi
,
the appellant did not know that the deceased was married and could
not reasonably have known this. That being so, the standard
of the
‘deemed consent’ provision kicked in. That should have
been the end of the matter.
[19]
Messrs Mr Paul Zietsman and Rico Van der Merwe of the Free State
Society of Advocates assisted this Court as
amici
curiae
because the
first respondent belatedly opposed the appeal, and the second and the
third respondents opted to abide the decision
of this Court. We are
indebted to them for their assistance at such short notice. They
principally raised issues concerning the
duties of conveyancers. It
is not necessary to consider those arguments, given the conclusion to
which I have arrived.
[20]
The high court erred by not considering
s 15(9)
(a)
in its
enquiry. Despite the fact that the appellant did not refer expressly
to
s 15(9)
(a)
in his answering affidavit, as counsel for the first respondent
contended, as a trier of facts, the high court was bound to consider
s 15
in its entirety and not cherry pick certain sections. The
interpretation of any document including legislation must be
approached,
as this Court has indicated in numerous judgments,
contextually and holistically, taking into account the purpose of the
legislation
under discussion.
[6]
In this case, the purpose of the provision was to strike a balance
between the interests of a non-consenting spouse, on the one
hand,
and a third-party purchaser, on the other. As aptly noted in
Marais
,
‘[w]hile 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.’
[21]
In the result, the following order is granted.
1 The appeal is upheld
with costs.
2 The order of the high
court is set aside and replaced with the following:
‘
The
application is dismissed with costs.’
_____________________
B
C MOCUMIE
JUDGE
OF APPEAL
Appearances:
For
appellant: N Ngoepe and N J Makhubele
Instructed
by: T F Mathebula Attorneys Inc, Johannesburg
Matsepes
Incorporated, Bloemfontein
For
first respondent: N Raji
Instructed
by: Matojane Malungana Incorporated, Johannesburg
SMO
Soebe Attorneys, Bloemfontein
As
amici curiae
: P Zietsman and R Van der Merwe.
[1]
Marais
NO and Another v Maposa and Others
[2020] ZASCA 23; 2020 (5) SA 111 (SCA).
[2]
Mulaudzi
v Mudau and Others
[2020]
ZASCA 148.
[3]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] 2 All SA (A)
[1984] ZASCA 51
; ;
1984 (3) SA 623
(A) at 634E-635C.
[4]
Visser
v Hull and Others
[2009]
ZAWCHC 77; 2010 (1) SA 521 (WCC).
[5]
Mulaudzi
v Mudau and Others
fn 9 above para 9.
[6]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) para 18.
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
[2014] 1 All SA 517
(SCA);
2014 (2) SA 494
(SCA) para 10.