IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 2025-001018
In the matter between:
ROBIN ROY SCHLEICH First Applicant
STELLA KATHARINA Second Applicant
KÜHN-VON BURGSDORFF
and
BRIAN RAMON LANTON First Respondent
REGISTRAR OF DEEDS, CAPE TOWN Second Respondent
CRAIG SCHNEIDER ASSOCIATES Third Respondent
THE CITY OF CAPE TOWN Fourth Respondent
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CAPITEC BANK LTD Fifth Respondent
ABSA DEBTOR FINANCE (PTY) LTD Sixth Respondent
In re:
Case No.: 20377/2024
In the matter between:
BRIAN RAMON LANTON Plaintiff
and
ROBIN ROY SCHLEICH First Defendant
STELLA KATHARINA Second Defendant
KÜHN-VON BURGSDORFF
REGISTRAR OF DEEDS, CAPE TOWN Third Defendant
CRAIG SCHNEIDER ASSOCIATES Fourth Defendant
THE CITY OF CAPE TOWN Fifth Defendant
CAPITEC BANK LTD Sixth Defendant
ABSA DEBTOR FINANCE (PTY) LTD Seventh Defendant
Neutral citation:
Coram: COOKE AJ
Heard: 7 August 2025
Delivered: 12 September 2025
Summary: Application to strike out rescission action as an abuse of
process - acquisition of domicile – third party claims under the Matrimonial
Property Act 88 of 1984
ORDER
[1] The application for condonation of the late filing of the affidavit of Allison
Alexander is granted . The costs of the application to be paid by the first
respondent, including the costs of two counsel, with senior counsel on scale
C, and junior counsel on scale B.
[2] The application for condonation of the late filing of the supplementary
replying affidavit and the confirmatory affidavit of the first and second
applicants respectively is granted, with no order as to costs.
[3] The application to strike out the action is dismissed, with costs to stand over
for determination in case number 20377/2024.
JUDGMENT
Introduction
[1] At one point, the applicants and the first respondent shared a friendship . I
shall refer to them as the Schleichs and Mr Lanton . In 2018 , an amicable
agreement was reached (‘the sale agreement’) in terms of which Mr Lanton
sold a property adjacent to the Cape Point Vineyards in Noordhoek (‘the
Nthombeni Way property’) to Mr Schleich. The Schleichs were excited about
the purchase and intended to construct a family home on the property. To
this end, they held detailed discussions with architects as they planned their
dream home . Seven years later, the relationship has soured and conflict
between the parties has spawned several court cases . Despite Mr Schleich
having paid over R5.4 million towards the purchase price , the property
remains registered in the name o f Mr Lanton , and the imagined home is no
closer to being built.
[2] Attitudes to the sale have fluctuated. Initially, during the Covid pandemic, the
Schleichs expressed their desire to cancel the sale . This was resisted by Mr
Lanton. Then, a few years later, the Schleichs reconsidered their decision
and pursued the enforcement of the sale . This too was initially opposed by
Mr Lanton and was eventually resolved when the court ordered Mr Lanton to
implement the transfer.
[3] While arranging the transfer , Mr Lanton received evidence suggesting that
perhaps a necessary formality had not been satisfied . Ms Kühn -Von
Burgsdorff had not provided her written consent to the sale. Mr Lanton relied
upon this evidence as a ground to challenge the court ’s order and
subsequently issued summons seeking a rescission. The Schleichs consider
this action to be an abuse of process and ask that th e court set aside the
summons.
[4] The Registrar of Deeds, being the second respondent, filed a report in which
it stated that based on its records, Mr Schleich is married in community of
property. It also noted that from a registration perspective, there are no
objections to the order bein g granted as prayed. The fourth respondent (‘the
City’), abides by the decision of the court.
Background
[5] In 2012, prior to their marriage, the Schleichs purchased their first property in
Noordhoek (‘the first property’) . The correspondence indicates that they
spent several million Rands improving this property. A couple of years later,
on Valentine’s Day in 2014, t he Schleichs were married. No ant enuptial
contract was concluded. During that period , Ms Kühn -Von Burgsdorff was
residing in Belgium, and Mr Schleich was working temporarily in Ghana.
When not in Ghana, Mr Schleich resided in Belgium or Cape Town. The
Schleichs chose Cape Town as the venue for their wedding as it was
convenient for both families.
[6] A fe w years following the wedding , o n 13 October 2017 , Mr Schleich
purchased the Nthombeni Way property for the sum of R 12 million from Mr
Lanton. This property was to be created through the consolidation and
subdivision of other properties owned by Mr Lanton . Although Ms Kühn-Von
Burgsdorff was aware of the sale and was copied in on emails pertaining to
the sale, she was not a party to th e transaction and did not provide her prior
written consent. On the day of the purchase, Mr Schleich paid US$20 000 to
an entity related to Mr Lanton for brokerage and related services . Five days
later, on 18 October 2017, Mr Schleich paid R2.4 million to Mr Lanton.
[7] On 21 January 2018 , the Schleichs completed the sale of the first property.
Ms Alexander, a conveyancer, assisted with this transfer. At the time, Mr
Schleich advised that he and Ms Kühn -Von Burgsdorf f had purchased the
first property as non-residents without visas, and Mr Schleich had been a tax
resident in South Africa for merely 11 months in the previous six years. This
information was conveyed to Ms Alexander. She prepared the documents
required to pass transfer of the first property. Notably, t hese documents
included affidavits in which the Schleichs recorded their marriage as being in
community of property. The Schleichs signed these affidavits without demur ,
and the title deed for the sale of this property duly reflected the Schleichs as
being married in community of property.
[8] During April 2018 , the Schleic hs exchanged emails with their architects. It
appears that the design for the Nthombeni Way property included a family
wing with bedrooms for children, guest accommodation, and staff quarters for
a housekeeper. Regarding the projected cost of the house, in one email Mr
Schleich noted that ‘we have a line in the sand at R15m, but this is a guide’.
At about the same time, o n 10 May 2018, Mr Schleich made an additional
payment of R3 million to Mr Lanton as part of the purchase price.
[9] In due course the Schleichs were granted South African permanent
residence permits ; Mr Schleich on 28 August 2018, and Ms Kühn -Von
Burgsdorff on 19 February 2019 . A dispute subsequently emerged between
the parties regarding an alleged breach of the sale ag reement. Mr Schleich
stopped making payments and adopted the position that Mr Lanton had
repudiated the agreement . On 16 March 2020 , he purported to cancel the
agreement and subsequently, on 5 October 2020 , he commenced an action
under case number 14208/20 in which he sought to void the sale of the
property and to recover the amounts paid to Mr Lanton. A few months later,
Mr Lanton delivered a plea and counterclaim in which he elected to abide by
the sale and tendered to give transfer.
[10] On 31 January 2023 , more than two years later, Mr Schleich did an about -
turn. He withdrew the action under case number 14208/20 and accepted Mr
Lanton’s tender of transfer. This gave rise to a dispute between the parties
regarding the interest payable by Mr Schleich on the purchase price. On 3
July 2023 , Mr Schleich paid over R9 million into a trust account for the
balance of the purchase price and interest and demanded transfer. A further
demand was made on 14 September 2023.
[11] Mr Lanton did not accede to this demand , and o n 4 October 2023, Mr
Schleich commenced an application under case number 16999/23 to compel
transfer. Mr Lanton delivered a notice of intention to oppose, and o n 13
December 2023, the application was postponed for hearing in June 2024. In
the meantime, on 17 April 2024 , an order was granted in terms of which Mr
Lanton was directed to extend the subdivision approval. The costs
associated with this order are the subject of a separate judgment to be
handed down together with this judgment. Subsequently, on 4 June 2024,
argument was heard in case number 16999/23 and Cloete J granted an
order in terms of which Mr Lanton was directed to implement the sale
agreement (‘the Cloete order’) . It is not disputed that when this order was
granted, the parties to the application, and the court, all believed that the sale
agreement was valid.
[12] Mr Lanton accepted th e Cloete order and took steps to comply with it , which
included instructing his legal representatives to prepare the necessary
transfer documentation, and directing a building professional to apply for an
extension of the validity period in respect of the conditions of subdivision .
The subdivision application was granted by the City on 19 August 2024.
[13] On 10 June 2024 , the conveyancers attending to the transfer sent an email
to the Schleichs’ attorneys, confirming that they were attending to the
registration of the transfer, and enquiring amongst other things where Mr
Schleich was domiciled at the time of the marriage. Mr Schleich stated that
he had been domiciled in South Africa , and this response was conveyed ,
without comment, by his attorneys to the conveyancers. On the face of it, this
information raised a potential difficulty. In terms of the common law, the
proprietary consequences of a marriage are governed by the husband’s
domicile at the time of the marriage. 1 If Mr Schleich was indeed domiciled in
South Africa at the time of the m arriage, then it is presumed that the
marriage is in community of property.2 This presumption would be fortified by
the absence of an antenuptial contract. Critically, i f the marriage is in
community of property, then spousal consent would be required for certain
transactions, including the conclusion, as purchaser, of a contract as defined
in the Alienation of Land Act 68 of 1981 (the sale agreement being such a
contract).
[14] Having regard to Mr Schleich’s response, Mr Lanton obtained legal advice
regarding the consequences of Mr Schleic h having been domiciled in South
Africa at the time of his marriage . He was advised by senior counsel that,
given the absence of Ms Kühn -Von Burgsdorff’s written consent, attested by
two competent witnes ses, the sale of the Nthombeni Way property was a
nullity in terms of s 15(2) (g) of the Matrimonial Property Act 88 of 1984 .
Subsequent enquiry revealed that the title deed for the sale of the first
property recorded the Schleichs as having been married in community of
property.
[15] Armed with this information and advice , o n 22 August 2024 , Mr Lanton ’s
attorneys sent an email to the Schleichs’ attorneys recording that the sale of
the Nthombeni Way property was a nullity because it had not been signed by
Ms K ühn-Von Burgsdorf f. They asserted that the Cloete order must be
reversed. Thereafter, correspondence was exchanged between the parties
and on 9 September 2024, Ms Kü hn-Von Burgsdorf f signed a document
recording that s he consented to and ratified the sale. This notwithstanding,
on 19 September 2024, Mr Lanton commenced proceedings under case
number 20377/24 for the rescission of the Cloete order on the basis that the
1 Sperling v Sperling 1975 (3) SA 707 (A) . Although the constitutionality of this rule is
questionable (see LE v LA 2024 (5) SA 539 (GJ) para 40 and see also CF Forsyth Private
questionable (see LE v LA 2024 (5) SA 539 (GJ) para 40 and see also CF Forsyth Private
International Law 5 ed (2012) (Private International Law ) at 295-6 and 300-1), it was not
challenged in these proceedings.
2 Edelstein v Edelstein NO and Others 1952 (3) SA 1 (AD) at 10A.
parties and the court had erroneously believed that the purported sale was
valid, and therefore the order had been granted as a result of a common
mistake, alternatively , as a result of a justus error , alternatively in the
absence of a valid agreement between the parties (‘the rescission action’) .
The Schleichs consider that th e r escission action is an abus e of process,
prompting them therefore to launch the application which is the subject
matter of this judgment.
Abuse of Process - Relevant Legal Principles
[16] In the matter of Mineral Sands Resources (Pty) Ltd and Others v Reddell and
Others3 the Con stitutional Court identified three categories of abuse of
process case.
a. First, there are cases where there is gross abuse by the procedure
employed by a litigant, to the exten t that the court, as a rare
instance, will dismiss the claim, without any regard to the merits.4
b. Second, there are cases concerning frivolous and vexatious
litigation. There, self -evidently, the merits of the cases, both past
and present, are germane in order to determine whether the court
is being assailed by a further frivolous claim or something with
arguable merits. 5 In relation to this category, t he court referred to
Maphanga6 where the Supreme Court of Appeal held that it had to
be shown that the respondents had habitually and persistently
instituted vexatious legal proceedings without reasonable grounds ,
and that legal proceedings were vexatious and an abuse of the
3 2023 (2) SA 68 (CC) (‘Mineral Sands’).
4 Ibid para 52.
5 Ibid para 53.
6 MEC, Department of Co-operative Governance and Traditional Affairs v Maphanga 2021 (4) SA
131 (SCA).
process of court if they were ‘obviously unsustainable as a certainty
and not merely on a preponderance of probability’.
c. The third class of case concerns criminal proceedings, public and
private. Here th e enquiry is whether the prosecution is being
brought in the public interest and not to pursue some private
objective.7
[17] This is not a case where there has been a gross abuse of the procedure
such that the application can be dismissed without any regard to the merits
(the first class) . This is also not a case where a litigant has habitually and
persistently instituted vexatious legal proceedings without reasonable
grounds (one aspect of the second class). Since this is a civil claim, the third
class of case is also not applicable. This case only falls into a limited part of
the second category , namely where legal proceedings are said to be
vexatious and an abuse of the process of court because they are obviously
unsustainable. The essential enquiry in this matter is whether the rescission
action is ‘obviously unsustainable as a certainty’.8
[18] The court has a discretion whether or not to dismiss the action on account of
abuse of its process. 9 In cases such as this, the court’s power must be
exercised with very great caution, and only in a clear case. The r ationale
behind this is that courts of law are open to all, and it is only in very
7 Mineral Sands para 54.
8 In Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd (SA 23 of 2010) [2012]
NASC 15 (13 August 2012) ; 2012 JDR 1357 (NmS) (Aussenkehr) para 3 9, the Namibian
Supreme Court held that the statement regarding ‘certainty’ should not be read as suggesting that
the standard for deciding civil disputes, namely, preponderance of probabilities, is not applicable
in an application to dismiss an action on the ground that it is vexatious. Rather, the word merely
emphasises the degree of clarity required before the plaintiff’s claim can be summarily dismissed
for lack of merit. The judgment was written by the former Chief Justice of South Africa, who was
acting as a judge of appeal in Namibia. See also Golden International Navigation SA v Zeba
Maritime Co Ltd; Zeba Maritime Co Ltd v MV Visvliet 2008 (3) SA 10 (C) para 26. But compare
LF Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v LF
Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C) at 275C.
9 Aussenkehr para 26.
exceptional circumstances that the doors will be close d upon anyone who
desires to prosecute an action. 10 The circumspect approach adopted by our
courts for over a century is now buttressed by s 34 of the Constitution which
guarantees everyone the right to access the courts.11
[19] There appear to be very few cases where a claim is struck out as an abuse
of process merely on the ground that it is obviously unsustainable. Many of
the cases mentioned in argument are distinguishable in so far as they relate
to persistent litigators ( Corderoy12), misuse of court procedures (Beinash13),
private prosecutions ( Maughan14 and Nedcor15) and the Vexatious
Proceedings Act 3 of 1956 (Cohen16). Of those that are not distinguishable,
most were dismissed. 17 One exception is African Farms.18 But even here, it
was a minority judgment which found, on the facts , that the cause of action
was ‘built on a foundation of sand’.19
[20] In Aussenkehr Farms Ngcobo AJA held that abuse connotes ‘improper use,
that is, use for ulterior motives ’, and the term ‘abuse of process ’ connotes
that ‘the process is employed for some purpose other than the attainment of
the claim in the action’.20 To my mind, the primary and immediate objective of
the rescission action is to reverse the Cloete order. The process is therefore
being employed to achieve the claim in the action , and not for some ulterior
purpose. The fact that success in th is action may carry with it some broader
strategic or commercial advantage, does not render the action improper. It is
10 Fisheries Development Corporation of SA Ltd v Jorgensen and Another 1979 (3) SA 1331 (W)
(Jorgensen) at 1338G-H.
11 Compare in the Namibian context, Aussenkehr Farms para 42.
12 Corderoy v Union Government (Minister of Finance) 1918 AD 512 (Corderoy).
13 Beinash v Wixley 1997 (3) SA 721 (SCA).
14 Maughan and Another v Zuma 2023 (5) SA 467 (KZP).
15 Nedcor Bank Ltd and Another v Gcilitshana and Others 2004 (1) SA 232 (SE).
15 Nedcor Bank Ltd and Another v Gcilitshana and Others 2004 (1) SA 232 (SE).
16 Cohen v Cohen and Another 2003 (1) SA 103 (CPD).
17 I have in mind cases such as Western Assurance Co v Caldwell’s Trustee 1918 AD 262 ,
Jorgensen, Bisset and Others v Boland Bank Ltd and Others 1991 (4) SA 603 (D) and
Maphanga.
18 African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (AD).
19 Ibid at 569G-H.
20 Aussenkehr para 21. See also Phillips v Botha 1999 (2) SA 555 (SCA) at 565E.
also relevant that Mr Lanton initially set out to comply with the Cloete order. It
was only after information came to light, and he received advice from a
senior counsel, that he embarked on the rescission action. It will only be in
very unusual cases that a litigant who follows legal advice will be said to be
acting in bad faith. 21 I therefore do not think a finding of ulterior motive may
be made against Mr Lanton.
[21] To what extent are the motives of the plaintiff relevant in an application to
strike out for abuse of process? Mr Lanton’s counsel submitted that purposes
and intentions are of crucial importance to any finding of vexatiousness,
abuse or frivolity. On this line of argument, a finding that there is no ulterior
purpose may be fatal to the application. A survey of the authorities reveals
that the subjective element has played a varying role in abuse of process
cases.22 In some cases, it is a critical factor. I n other cases , the subjective
element and the merits of the case both feature in the court’s assessment.
There are also cases where it appears that the court has only had regard to
the merits of the claim . For the purposes of this matter, I will assume in
favour of the Schleichs that they do not need to prove any malicious or
improper intent on the part of Mr Lanton . Instead, I will assess the matter on
the basis that they need show only that the rescission action is obviously
unsustainable as a matter of certainty.
[22] The Schleichs submit that the action is unsustainable for both factual and
legal reasons. On the facts, they submit that Mr Schleich did not have the
requisite intention to remain in South Africa at the time of the marriage, and
therefore, he was not domiciled in South Africa at that particular time. It
follows, on this argument, that the Schleichs were not married in community
of property and the Matrimonial Property Act is inapplicable. On the law, they
of property and the Matrimonial Property Act is inapplicable. On the law, they
21 HEG Consulting Enterprises (Pty) Ltd and Others v Siegwart and Others 2000 (1) SA 507 (C) is
one such exceptional case. Compare Moyo v Old Mutual 2022 JDR 1248 (GJ) where the court
found that a litigant who acted pursuant to good faith legal advice was not in contempt.
22 See the detailed discussion of motives and merits in Mineral Sands and the summary at para
76.
submit that Mr Lanton cannot rely on the provisions of s s 15(2), (4) and (5) of
the Matrimonial Property Act , as these provisions do not afford a cause of
action to third parties to a marriage. Rather, the provisions are designed for
innocent spouse s requiring protection from the maladministration of a joint
estate to which they are a party. In any event, they say that the problem was
cured when Ms Kühn-Von Burgsdorff ratified the transaction. It is convenient
to discuss the factual and the legal points separately as, in my view, different
considerations apply. Before doing so, I address the application to admit the
affidavit of Ms Alexander.
The affidavit of Ms Alexander
[23] Mr Lanton’s answering affidavit was delivered on 2 March 2025. Although it
anticipated an affidavit from Ms Alexander, and summarised the contents
thereof, it was not accompanied by any such affidavit. The Schleichs
delivered their replying affidavit on 17 March 2025. On the same day , Ms
Alexander deposed to a supporting affidavit , although, it was only some ten
days later, on 27 March 2025, that this affidavit was delivered. At the time, Mr
Lanton did not provide any explanation for the late delivery of Ms Alexander’s
affidavit, nor did he apply for condonation.
[24] The Schleichs’ attorney addressed an email to Mr Lanton’s attorney on 7 July
2025, in which she recorded that her clients would object to Ms Alexander’s
affidavit on the basis that the affidavit fell to be treated as pro non scripto (as
if it had not been written). It appears that she had in mind judgments such as
Sewpersadh23 and Hano Trading 24 which established that a litigant who
wishes to file a further affidavit must make formal application for leave to do
so. Thereafter, o n 17 July 2025 , the Schleichs delivered an application in
which they sought condonation for the late filing of a supplementary replying
23 Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C) para 13.
23 Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C) para 13.
24 Hano Trading CC v JR 209 Investments (Pty) Ltd and Another 2013 (1) SA 161 (SCA) paras 7-
14.
affidavit, and a confirmatory affidavit. The purpose of these two affidavits was
to reply to the allegations made in Ms Alexander’s aff idavit, in the event of it
being admitted. Still no condonation application was brought by Mr Lanton.
[25] At the hearing , counsel for the Schleichs requested that I make a ruling on
the admissibility of Ms Alexander’s affidavit. Reliance was placed on James
Brown & Hamer.25 I indicated that I wished to hear argument on the merits of
the matter before deciding whether to admit this affidavit. After the lunch
break, Mr Lanton’s counsel handed up a formal application in which
condonation was sought for the late filing of Ms Alexander’s affidavit . The
application was supported by an affidavit from Mr Lanton’s attorney in which
he attributed the delay to the fact that Ms Alexander was moving house at
the time, and he encountered communication difficulties with her in South
Korea.
[26] I am inclined to accept the affidavit for the following reasons. First, having
regard to the nature of the application , which is p otentially fatal to Mr
Lanton’s action, I am reluctant to exclude any evidence which may be
relevant. Second, the contents of Ms Alexander’s affidavit were
foreshadowed in Mr Lanton’s answering affidavit. The description of her
evidence in the answering affidavit was replicated, almost word for word, in
the supporting affidavit. The function of her affidavit is therefore not to
introduce new evidence, but to confirm the hearsay allegations contained in
the answering affidavit. Third, the affidavit was delivered several months
before the hearing and the Schleichs had ample time to respond, and in fact,
did so.
[27] In James Brown & Hamer, it was held that the general rules regarding the
sequence and timing of affidavits should not be impl emented in a rigid
25 James Brown & Hamer (Pty) Ltd (Previously Named Gilbert Hamer & Co Ltd) v Simmons, NO
1963 (4) SA 656 (A) (James Brown & Hamer).
manner. There must be a degree of flexibility, which is regulated by the
presiding Judge's exercise of discretion in relation to the facts of the case. 26
Having regard also to the approach adopted in the recent judgment of
Mabindla-Boqwana JA in De Kock,27 and the fundamental consideration that
a matter should be adjudicated up on all the facts relevant to the issues in
dispute, I am confident that it is in the interest s of justice to permit Ms
Alexander's affidavit. Although I do not think a proper and satisfactory
explanation was provided, this is outweighed by the absence of p rejudice
that will be caused by the admission of the affidavit (other than costs) and the
relevance and importance of the evidence.
[28] As regards t he costs of Mr L anton’s condonation application , he seeks an
indulgence and should therefore pay the Schleichs’ costs, including the costs
of two counsel . With respect to the costs of the Sch leichs’ condonation
application, their further replying affidavits were necessitated by the late filing
of Ms Alexander’s affidavit. The Schleichs only sought costs i f Mr Lanton
opposed the application. He did not do so , and therefore , I make no order
regarding the costs of their application.
[29] In the next section I assess the factual basis for Mr Lanton’s claim . On this
issue, the central question is whether Mr Lanton’s averment that Mr Schleich
was domiciled in South Africa at the time of the marriage (and therefore the
Schleichs are married in community of property), is obviously unsustainable.
Was Mr Schleich domiciled in South Africa at the time of the marriage?
[30] Mr Lanton relies upon the fact that in relation to the sale of the first property
in 2018, the Schleichs deposed to affidavits in which they state that they are
married in community of property. Pursuant to this declaration, the title deed
26 At 660E-F.
27 De Kock v Du Plessis and Others 2024 JDR 3115 (SCA) paras 24ff.
described them as married in community of property . Reliance is also placed
on the affidavit of Ms Alexander , who says that she was meticulous in
preparing the 2018 affidavits and other transfer documents and she spent a
great deal of time and trouble ensuring that the status of the parties was
correctly reflected. According to Ms Alexander she saw the Schleichs
personally and would have explained the contents of the documents to them
and she would have been careful to ensure that they were correctly
described, given their foreign connections , as well as those of the
purchasers. Furthermore, and in connection with the transfer of the
Nthombeni Way property, Mr Lanton points to the fact that, in answer to the
question as to his marital status and domicile at the time of his marriage, Mr
Schleich answered ‘married, domiciled in RSA at time of marriage’.
[31] The Schleichs , on the other hand, rest their case on various facts. Mr
Schleich’s domicile of orig in is Austr alia. At the time of their marriage, Mr
Schleich was in South Africa on a temporary exceptional skills work visa that
would expire in 2016. His residence in South Africa at the time of the
marriage was thus temporary as his visa had an expiry date. For her part, Ms
Kühn-Von Burgsdorff was in South Africa on a 90 -day tourist visa. Therefore,
at the time of their marriage neither of them was permitt ed to reside in South
Africa for an indefinite period. Moreover, they were together in South Africa
for a particular purpose, namely, to get married. It was only four years after
their marriage, in 2018, that the Schleichs applied for permanent residency.
Having regard to the temporary nature of Mr Schleich’s visa, they submit that
he could not have intended (a) permanently to reside in South Africa and (b)
to abandon his domicile in Australia , and furthermore this disclosed a
contemplation of a certain future event upon which his residence would
end.28 Consequently, South Africa could not, in those circumstances, have
end.28 Consequently, South Africa could not, in those circumstances, have
been his domicile of choice. It follows, so the argument ran, that Mr Schleich
did not have the requisite intention to stay in South Africa after the wedding
28 Reference was made to Johnson v Johnson 1931 AD 391 (Johnson) at 398.
ceremony. To the contrary, the couple intended to reside in Belgium. Indeed,
the marriage register reflected a Belgian address as the ‘ (p)ermanent
residential address of married couple after marriage’.
[32] The Schleichs blame Ms Alexander for the statement in the 2018 affidavits
that they are married in community of property. They emphasise that she
was aware that the first property was acquired by them as non -residents
without a visa, and that Mr Schleich had only been a resident of South Africa
for 11 months in the six years prior to 2018. The Schleichs’ attorneys
attempted to consult with Ms Alexander to discuss this apparent difficulty, but
she declined their request . The Schleichs criticise her reticence. As to the
recent statement that he was domiciled in South Africa at the time of the
marriage, Mr Schleich contends that he gave this answer in ignorance of the
legal definition of ‘domicile’. He understood it to mean ‘residence’.
[33] The question is whether, on these facts, I can conclude, with certainty, that
Mr Schleich was not domiciled in South Africa at the time of the marriage.
Section 2(1) of the Domicile Act 3 of 1992 provides that a domicile of choice
shall be acquired by a pe rson who is lawfully present at a particular place
and intends to settle there for an indefinite period. The intention to settle
indefinitely is less than the intention to settle permanently.29 According to
Forsyth,30 relying upon the formulation by Pollak, the intention to reside in a
particular place for an indefinite period means that the person intends to stay
'until and unless something, the happening of which is uncertain, occurs to
induce the person to leave'. 31 Forsyth describes the formulation in the
Domicile Act as the ‘weak’ test for intention which he contrasts with the
‘strong’ test which would consider nothing less than ‘the intention to reside
29 Alam v Minister of Home Affairs 2012 (5) SA 626 (ECP) at 631F.
30 Private International Law at 141.
30 Private International Law at 141.
31 This formulation was cited with approval by Cloete J, for the majority in OB v LBDS 2021 (6)
SA 215 (WCC) para 36.
forever’ as sufficient to acquire a domicile of choice. 32 Is it conceivable that
Mr Schleich, at the time of his marriage, intended to stay in South Africa
unless some uncertain circumstance occurred that compelled him to leave?
[34] The fact that Mr Schleich was in South Africa on a temporary visa is a
relevant factor which operates in favour of the Schleichs. However, I do not
believe it is decisive. It has been held that ‘ (t)he power of a higher authority
to terminate a person’s res idence in a particular area cannot affect the
question whether that person intended to make his permanent abode
there’.33 In Toumbis the court found that the respondent was domiciled in
South Africa, even though he was in the country on a temporary visa and his
presence was ‘precarious and permissive ’.34 At the time of the marriage, Mr
Schleich’s visa was valid for more than two years. It is conceivable that he
intended making every effort to remain in South Africa . It is possible that his
intention was to remain in South Africa unless he was unable to secure an
additional visa. With the benefit of hindsight, we now know that he was in fact
granted a permanent residence permit. At what point in time did he start
thinking that he would like to stay indefinitely in South Africa? This is a
question which ought to be explored after discovery has taken place, and
through cross-examination.
[35] Counsel for Mr Lanton submitted that it would be premature to reach a
conclusion in circumstances where the parties ha ve not made discovery and
the witnesses have not been subjected to cross -examination. I agree.
Discovery and cross -examination have been described as two of the great
engines for exposing the truth.35 A court will, therefore, be very slow to reach
32 Counsel for the Schleichs relied upon Johnson. Forsyth describes the decision in this case as
having come down strongly in favour of the strong test (at 142) , and he criticises the
having come down strongly in favour of the strong test (at 142) , and he criticises the
‘tenaciousness of the domicile of origin’ manifest in this case (at 159).
33 Van Rensburg v Ballinger 1950 (4) SA 427 (T) at 427C-E; see also Toumbis v Antoniou 1999
(1) SA 636 (W) (Toumbis) and Alam.
34 Toumbis at 639E-F.
35 The MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd and
Others 1999 (3) SA 500 (C) at 513G-H.
a factual finding, without the benefit of these truth -exposing instruments.
Relying upon the KPMG case,36 counsel for the Schleichs argued that Mr
Schleich could not be cross -examined on his domicile as this was a le gal
conclusion, and any such evidence would be inadmissible. In my view Mr
Schleich could be cross -examined on the factual circumstances surrounding
his intentions at the time of his marriage. 37 This evidence would be relevant
to the determination of the legal question and would be admissible.
[36] Although the court has an inherent jurisdiction to dismiss an action which is
an abuse of the process of the court, this jurisdiction should be sparingly
exercised and only in very exceptional circumstances. The discretion should
not be exercised because the story told in the pleadings is highly improbable,
and one which may be difficult to believe could be proved.38
[37] In addition to the statemen ts made by Mr Schleich under oath and in
response to enquiries from the conveyancers, the couple had purchased a
property in South Africa prior to their marriage. They invested significantly in
this first property. They were married in South Africa. Mr Sch leich was
employed by a South African company at the time. On their own telling, they
loved South Africa and planned to spend a lot of time in South Africa in the
future. Following their marriage, they began planning the construction of a
family home in So uth Africa for which they envisaged spending roughly R15
million, and they both became permanent residents of South Africa. These
factors do not inherently indicate that Mr Schleich had the requisite intention
to stay in South Africa indefinitely. They do suggest, however, that this is a
triable issue.
36 KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA).
37 Factors which may be relevant to the enquiry are set out in HGW v MW (A207/2024;
RCC/MOS 84/23) [2025] ZAWCHC 65 (26 March 2025) para 35.
RCC/MOS 84/23) [2025] ZAWCHC 65 (26 March 2025) para 35.
38 Ravden v Beeten 1935 CPD 269 (Ravden) at 275, citing Lord Herschell in Lawrence v Norreys
(15 AC 210 at 219). See also Aussenkehr Farms para 45.
[38] I agree with the approach described in Ravden. It is not for this court, in an
application of this nature, to discuss the probabilities of the anticipated case,
with the exception of determining whether the case is altogether beyond the
realm of probability and becomes vexatious due to its impossibility. 39 I do not
consider that the court can, at this early stage, exclude the possibility that on
the day of his wedding Mr Schleich intended to stay in South Africa unless
some uncertain event intervened which compelled him to leave. It is
therefore possible that he was domiciled in South Africa, and the Schleichs
were married in community of property. Consequently, Mr Lanton’s case
does not stand outside the re alm of probability altogether such that it is
vexatious because it is impossible. The Schleichs have therefore not
demonstrated that, on the facts, the rescis sion application is obviously
unsustainable as a certainty. This brings me to the legal issues raised by the
Schleichs.
The Matrimonial Property Act
[39] In general, a spouse married in community of property is permitted to
perform any juristic act with respect to the joint estate without the assent of
the other spouse, as outlined in section 15(1) of the Matrimonial Property
Act. However, a spouse is prohi bited from entering into a contract as defined
in the Alienation of Land Act, which is subject to the provisions of that Act,
without the written consent of the other spouse, in accordance with section
15(2)(g). In their plea in the rescission action, the Schleichs admit that the
sale agreement is a contract as defined in the Alienation of Land Act, and the
provisions of this Act apply to the contract. In terms of section 15(4) of the
Matrimonial Property Act , the consent required for the purposes of
paragraphs ( b) to ( g) of subsection (2), and subsection (3) may, except
where it is required for the registration of a deed in a deeds registry, also be
where it is required for the registration of a deed in a deeds registry, also be
given by way of ratification within a reasonable time after the act concerned.
39 Ravden at 276.
[40] In support of their application to strike out the rescission action, the Schleichs
raise two points which are substantially legal in nature. First, they say that Mr
Lanton cannot rely on ss 15(2), (4) and (5) of the Matrimonial Property Act ,
as these provisions only afford a cause of action to the parties to a marriage.
Second, they maintain that the issue was resolved by Ms Kühn -Von
Burgsdorff's ratification of the transaction, even if a third party were to invoke
these provisions.
[41] Regarding the first point, c ounsel for the Schleichs noted that the purpose of
s 15(2) of the Matrimonial Property Act is to protect innocent spouses from
the maladministration of their joint estate, whereas s 15(9)( a) seeks to
protect the interests of a bona fide third party. It was submitted that Mr
Lanton, who is not a party to the marriage, enjoys no cause of action to set
aside the sale pursuant to the provisions of section 15(2)( g) of th is Act. The
riposte from Mr Lanton’s counsel was that no clear authority was provided for
this submission . Although reference was made to Marais40 and Visser,41
these cases did not have to decide whether a third party is precluded from
relying upon the provisions of the Matrimonial Property Act. The y also point
to the finding in Marais that the consequence of entering into a sale of land
without w ritten and attested consent of the innocent spouse is that ‘the
transaction is unlawful, and is void and unenforceable’.42 To this authority
may be added Bopape and Another v Moloto which held that ‘(o) nce it is
clear that the required consent was neither sought nor given, illegality
followed and the particular juristic act cannot survive ’.43 Counsel submitted
40 Marais and Another NNO v Maposa and Others 2020 (5) SA 111 (SCA) (Marais) – the
applicant sought to set aside the transfer by her deceased husband of 75% of the members’
interest in a corporation.
41 Visser v Hull and Others 2010 (1) SA 521 (WCC) – the applicant sought to set aside an
41 Visser v Hull and Others 2010 (1) SA 521 (WCC) – the applicant sought to set aside an
agreement of purchase and sale purportedly concluded by her deceased husband.
42 Marais para 26. See in this regard Steenkamp and Others v Edcon Ltd 2016 (3) SA 251 (CC)
paras 182-3 and the cases cited there . The use of the word 'shall' in a statutory provision does
not necessarily mean that anything done contrary to such a provision is a nullity . It depends on a
proper interpretation of the statute.
43 2000 (1) SA 383 (T) at 388E-F.
further that if a purchase of land by a spouse married in community of
property without the written and attested consent of the other spouse is void,
it must be void for all purposes. It cannot depend on the identity of the party
asserting that voidness.
[42] To my mind the legal point raised by the Schleichs could have been taken by
way of an exception. If it is a valid point, it is fatal to Mr Lanton’s cause of
action. The exception procedure is the appropriate method for resolving
points of law such as this. In the Schleichs’ heads of argument , concern is
expressed regarding the costs of a trial and the waste of scarce judicial
resources. However, if the legal point is sound, these could have been
avoided by means of an exception. Even now, the question of whether a third
party may invoke s 15(2) of the Matrimonial Property Act is a question which
could possibly be separated and determined prior to the other questions in
terms of uniform rule 3 3(4). I agree with the view expressed in Aussenkehr
that the procedure whereby an action may be dismissed for want of merit
‘was never intended to replace the special plea or exception as a test of the
plaintiff’s case. Nor was it intended to provide the defendant with a unilateral
advantage of testing the soundness of the de fendant’s defences prior to
trial.’44 Where other established procedures are available to a litigant, it
would only be in very rare cases , if at all, that a court would intervene
summarily and strike out an action. This is especially so where there is no
ulterior motive.
[43] On behalf of the Schleichs , it was submitted that their complaint had to be
pursued by way of this application. It is correct that an abuse of process
complaint should be brought by way of an application. 45 However, this is not
to say that the underlying legal issue could not have been addressed in the
usual way. In any event, I am not persuaded that the legal point will inevitably
44 Paras 46-7.
45 Corderoy at 517.
succeed. There appears to be no authority one way or the other on the point ,
and I do not consi der this to be the forum in which this issue should be
considered and decided. To my mind, this is one of those circumstances
where a court is not required to make a definitive decision on a legal point. 46
In my view, on this legal point, Mr Lanton’s case is not manifestly groundless.
This suffices for present purposes.
[44] As to the second point, i n the rescission action Mr Lanton pleads that Ms
Kühn-Von Burgsdorf f was not entitled to provide her consent by way of
ratification, as it was required for the registration of a deed in the deeds
registry. Additionally, or alternatively, any purported ratification was not
provided by her within a reasonable time after the conclusion of the
purported sale. The Schleichs issued a simple denial in response to this
allegation.
[45] Section 15(4) of the Matrimonial Property Act provides that: ‘The consent
required for the purposes of paragraphs (b) to (g) of subsection (2), and
subsection (3) may, except where it is required for the registration of a deed
in a deeds registry, also be given by way of ratification within a reasonable
time after the act concerned.’ Two questions arise: (a) was Ms Kühn -Von
Burgsdorff’s consent required for the registration of a deed in a deeds
registry? – in which case s 15(4) is inapplicable ; and (b) if the section does
apply, did she ratify the transaction within a reasonable time?
[46] In relation to (a) , counsel for the Schleichs submitted at the hearing that
having regard to the Deeds Registries Act 47 of 1937 and the Registration of
Deeds Regulations of 1963, all that is required to make a transfer is a power
of attorney from the seller. It was submitted further that t he deed of sale is
not something which is required for the registration of a deed. This document
46 See in this regard Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd
and Others 2023 (4) SA 325 (CC) para 251.
remains in the conveyancer’s file.47 In my view, notwithstanding this practice,
it may still be argued that the spousal consent is required, albeit indirectly, for
the registration of a deed. It could plausibly be contended that t he
conveyancer would not submit the documents required for the registration of
the deed unless he or she was satisfied that the spousal consent had been
provided. Furthermore, in Visser the court noted that ‘in the case of an
immovable property, the husband will normally not be able to effect a
transaction with a third party without his wife’s consent , since her written
consent will be required by the registrar of deeds before he will reg ister the
relevant real right on the title deed of the property’. 48 Given the
circumstances, I do not think I can find, at this stage, that Mr Lanton’s
argument is so patently untenable that it could not possibly succeed.
[47] As to (b), there is scant authority regarding the ‘reasonable period’ allowed
for ratification. For instance, is it a reasonable period from the date that the
party realises that ratification may be required (as suggested by counsel for
the Schleichs), or is it a reasonable period from th e date of the impugned
transaction? The section provides that the ratification must be within a
reasonable time ‘after the act concerned’. It seems to me that the act
concerned is the conclusion of a contract , as defined in the Alienation of
Land Act, as contemplated in s 15(2)( p) of the Matrimonial Property Act.
Therefore, in this case the ratification must be within a reasonable period of
the conclusion of the sale agreement on 13 October 2017. The ratificati on
was almost seven years later, on 9 September 2024. I do not think that I can
exclude the possibility that a trial court would find that the ratification was not
provided within a reasonable period. Once again, it is not inevitable that Mr
Lanton will fail.
Lanton will fail.
47 Reliance was placed on Bester NO and Others v Schmidt Bou Ontwikkelings CC 2013 (1) SA
125 (SCA).
48 Para 10.
[48] In conclusion, it would only be in a very exceptional case that an action
would be struck out as an abuse of process merely because it is legally
defective. To my mind , this is not such an exceptional case. In any event, I
am not persuaded that either of the Schleichs’ legal points will succeed as a
matter of certainty. It follows that the Schleichs have not established a basis
for this court to strike out the rescission action.
Conclusion
[49] In the circumstances, I do not consider that I should exercise my discretion
by striking out the rescission action. T he application therefore falls to be
dismissed.
[50] It is unfortunate that this outcome does not bring the underlying dispute any
closer to resolutio n. It is particularly troubling that the Schleichs have now
been out of pocket in an amount exceeding R5 million for over seven years.
Nonetheless, I do not consider the abuse of process remedy to be the way to
resolve the dispute. Counsel for the Schleichs expressed disquiet regarding
the time it will take for this matter to be brought to trial. If the parties co -
operate there will not necessarily be a long wait before the matter is declared
trial ready , and a hearing date is alloca ted. In any event , i t is open to the
Schleichs to approach the Judge President with a request for an expedited
hearing, either of a separated issue, or of the whole trial.
[51] As regards costs, although normally costs follow the result, in my view the
trial court will be in a better position to assess who should pay the costs of
this application. Costs will therefore be reserved for determination in the
rescission action.
Cooke AJ:
_____________________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicants: RG Patrick SC and H Beviss-Challinor
Instructed by: Clyde & Co.
For first respondent: E Fagan SC and A Price
Instructed by: Slabbert Venter Yanoutsos Inc.