South Africa: High Courts - Gauteng

In this regard two issues were raised on behalf of the respondents. Firstly that the alleged consent by the second respondent cannot be valid as it did not comply with the provisions of section 2(1) of Alienation of Land Act 68 of 1981 which provides that the agreement for alienation of land must be in writing and signed by the parties thereto or their agents on their written authority. Secondly reliance was placed on the provisions of section 15(2)(a) of the Matrimonial Property Act which provides that one spouse in a marriage in community of property shall not without the written consent of the other, alienate immovable property forming part of the joint estate. The requisite consent must be given in respect of a particular transaction and attested to by two witnesses. It was argued that inasmuch as the second respondent signed the agreement as a witness to the seller, and not as a co-seller, the provisions of the Alienation of Land Act and Matrimonial Property Act have not been complied with and that this rendered the agreement null and void. In this regard I was further referred to the cases of Brack v City State Townhouses (Pty) Ltd 1982 (3) SA 364 (W) and Chisuall v Sturgeon and Sturgeon 1993 (2) SA 642 (W). In the latter case it was said that a person who signs as a witness signifies his or her intention to stay outside the contractual ties. This might be so, however I do not think that this could be used as a general rule without considering the facts of each case. It was further submitted that there was absolutely no indicium in extraneous evidence to show that the second respondent's intention was anything other than is apparent from the agreement itself. I do not agree with this submission as it would later appear in this judgment.

A further submission on behalf of the first and second respondents was that neither the applicant nor Mr Schuurman, the conveyancer for the applicant intended the agreement to contain the requisite consent, because they neither realised that such consent was required. It was further argued that for the same reasons none of them can be heard to say that they actually understood the signature of the second respondent to constitute the requisite consent. This might be so, however this aspect cannot be considered in isolation. The second respondent participated in the negotiations preceding the 7 December 2003, it was within her knowledge that the property in question formed part of the joint estate although registered only in the names of her husband, she was well aware that the first respondent who had signed as a seller was making an offer to the applicant represented by Mr Ismail to dispose of the property or sell the property to the applicant on the terms and conditions contained in the agreement and she then signed as a witness to the sale or an offer to sell the property. Whilst section 2(1) of the Alienation Act and section 15(2)(a) and (b) of the Matrimonial Property Act contained certain formalities to be complied with and whereas the second respondent signed in her capacity as a witness to the agreement, her suggestion that her signature was intended for nothing else than what it purports to be is with respect a bit far-fetched. The second respondent like the first respondent is equally an interested party in the property. She therefore did not only sign as a witness, but also as an interested party who was fully aware or reasonably expected to have been fully aware of the terms and conditions of the

intended agreement so contained in the offer signed by her husband as the seller. One cannot be rigid just to follow the wording of the Alienation of Land Act and the Matrimonial Property Act. In fact in my view the spirit of section 15(2) of the Matrimonial Property Act for example should be understood to be intended to protect the one spouse against illicit selling or alienation of property forming part of the joint estate by the other spouse who does that without the knowledge and or consent of the innocent spouse.
12.     

Courts should be entitled to consider circumstances of each and every case and in so doing determine whether or not strict compliance with the provisions of the Acts should be a blanket prohibition for consideration of those factors as they are presented in a particular case. On the facts of the present case, the second respondent knew that the property was being sold. She was fully aware or reasonably expected to have been aware of the terms and conditions of such a proposed agreement and this is signified by her signature on the agreement as a witness. What was she witnessing? Certainly she was witnessing the proposed agreement of sale wherein her interest was involved. She raised no objection to the agreement on the 7 December 2003 when she signed as a witness. The proposed agreement is in writing and in my view her signature did not only signify her consent, but also authorisation to the first respondent to dispose of the property on those terms and conditions contained in the agreement. This should then bring me to consider the next issue raised in this case.

WHETHER OR NOT THE APPLICANT DID NOT KNOW OR COULD NOT HAVE REASONABLY KNOWN THAT THE TRANSACTION WITH THE FIRST RESPONDENT WAS CONTRARY TO SECTION 15(2) OF ACT 99 OF 1988.
13.     

The applicant wanted to rely on the provision of section 15(9) of the Matrimonial Property Act. This subsection provides that where one spouse in a marriage in community of property enters into a transaction with another person, contrary to the provisions of section 15(2), where such other person does not know and cannot reasonably know that the transaction is contrary to section 15(2), it is deemed that the requisite consent had been given by the other spouse. Section 15(2), requires that one spouse in a marriage in community of property shall not, without the written consent of the other, alienate immovable property forming part of the joint estate. The requisite consent must also be given in respect of a particular transaction and be attested by two competent witnesses. The applicant contends that it did not know that the first and second respondents were married to each other in community of property. It is for this reason that the applicant wants to rely on the first part of section 15(9). This was strenuously opposed by the first and second respondents. Mr Ismail is alleged to have been told during October 2003 that the first and second respondents were married in community of property and that the second respondent had to sign any prospective deed of sale. There is a dispute of fact regarding the issue whether or not the applicant through Mr Isamail was told of the marriage between the first and second respondents and the obligation to have deed of sale

be signed by the second respondent as the co-seller. In this regard I have been urged to follow the principle set out in the case of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, that is the facts alleged by the respondent must be taken into account, the facts alleged by the applicant and not denied by the respondents should be considered and that only if these facts are sufficient to support the granting of final relief will such relief be granted. Those facts alleged by the first and second respondents are that the applicant or Mr Ismail was told on or during October 2003 that the first two respondents were married to each other in community of property and that the second respondent had to sign the deed of sale as a co-seller. However those facts alleged by the applicant and not disputed by the respondents are that on the 17 December 2003 the first respondent signed the agreement as a seller, the second respondent was present and the second respondent signed as a witness to the agreement in terms of which her interest in the property was sold to the applicant. This conduct by the second respondent correctly as submitted on behalf of the applicant raises the questions as to why did she sign as a witness and not as a seller and why did the first respondent proceed to sign alone as the seller if he had conveyed to the applicant that the second respondent must also sign as a seller. On probabilities the conduct of the first two respondents is not consistent with the allegation that the applicant was told that the first and second respondents were married in community of property and that the second respondent must also sign the agreement as coseller. On the other hand Mr Ismail is known to be a businessman who often sells or purchases immovable properties

around the area. In my view therefore if he was told of the marriage and the need to have the second respondent sign the agreement, he would not have proceeded to allow the second respondent only sign as a witness. This should then bring me to consider the next leg of the provisions of section 15(9), that is whether or not the applicant could not reasonably have known that the transaction with the first respondent was contrary to section 15(2) of the Matrimonial Property Act.
14.     

The applicant and in particular Mr Ismail and his conveyancer, Mr Schuurman, are criticised for not acting like reasonable man in not enquiring and establishing the marital status of the first respondent or second respondent. This criticism is of course despite the fact that the conveyancer knew before the 17 December 2003 that the property was registered in the names of the first respondent only. This coupled with the facts that the second respondent had signed as a witness to the agreement and actively participated in the conclusion of the agreement, should militate against any suggestion that Mr Ismail or his conveyancer Mr Schuurman had acted unreasonably in the circumstances of the case. The applicant should therefore be entitled to rely on the presumption of consent by the second respondent created in section 15(9) of the Matrimonial Property Act. This finding is only in regard to the events leading to the signing of the agreement by the first respondent and witnessed by the second respondent on the 17 December 2003.

WHETHER OR NOT THE CHANGES MADE ON THE AGREEMENT ON 30 JANUARY 2004 WERE VALID OR TO PUT IT DIFFERENTLY WHETHER OR

NOT THE SECOND RESPONDENT WAS A PARTY TO THE CHANGES MADE AND AGREED UPON BETWEEN THE FIRST RESPONDENT AND APPLICANT.
15.     

Having found that the second respondent had given a consent which is valid, it becomes therefore necessary to now consider this issue. On behalf of the respondents it was argued that the provisions of section 15(2)(b) and 15(5) of the Matrimonial Property Act should be seen as the basis for a finding that the agreement with changes or amendments made on the 30 January 2004 are not binding on the second respondent and had effectively rendered the agreement invalid. Subsection (2)(b) provides that a spouse in community of property shall not without the written consent of the other spouse enter into any contract for the alienation, mortgaging, burdening with a servitude or confessing of any other real right in immovable property forming part of the joint estate.

Counsel on behalf of the fourth respondent argued that this subsection (2)(b), must be read together with subsection (5) which provides that the consent required for the performance of the acts contemplated in paragraphs (a) (b) (f) (g) of subsection (2) shall be given separately in respect of each act and shall be attested by two competent witnesses. Counsel for the applicant on the other hand contended that once consent is given either under subsection 2(a) or (b) the selling spouse should have such unfettered and general power to alienate or enter into an agreement to alienate as he or she might deem it necessary. I understood this submission to suggest that a selling spouse

should be entitled for example to fix the price, to agree to such terms and conditions as he or she wishes irrespective of whether or not the other spouse was happy thereto. In the instant case for an example the second respondent on the 17 December 2003 signed the offer document as a witness and this signified her consent to the following terms and conditions:

-        That the applicant shall furnish an approved bank guarantee to the first respondent or seller within 21 days from the said date upon which the option is exercised i.e. upon date on which the offer is accepted.

-        That the acceptance form at the foot of the option agreement shall be delivered to the seller/first respondent at a given address as it appears on the agreement on or before the 30 January 2004.
16.     

It was common cause during the discussion that on the 30 January 2004 when the acceptance of the offer was delivered, the following transpired:

16.3 That the 21 days within which to deliver the approved bank guarantee from the 30 January 2004 was changed to thirty

I have been urged to find that the non-involvement of the second respondent was not material, especially in the light of the fact that she had already given consent on the 17 December 2003 to have the property sold. Effectively counsel on behalf of the applicant suggested that the first respondent by virtue of her consent given on the 17 December 2003 the first respondent was entitled to change the terms and conditions of the option or offer without any further consent or discussion with the second respondent. Subsection (5) of section 15 seems to envisage involvement of the other spouse through out any step or action taken by the selling spouse. Otherwise a general consent in my view will be subject to abuse at sometimes and I do not think that this could have been intended by the legislature. Even if I was to be wrong in this regard, I do not think that once a consent is given on specified terms and conditions, the selling

Lastly one should remember that the option agreement also contained a non-variation clause, specifically stating that no variation, alteration, modification or suspension of any of the terms or conditions of this agreement shall be of any force and effect unless same shall have been committed to writing and signed by the purchaser and the seller. In my view the changes so effected on the agreement on the 30 January 2004 did not comply with this non-variation clause. Firstly it has not been properly committed to writing and duly signed by the purchaser and seller. Secondly the second respondent was not involved nor did she give her consent to this alterations and or suspension of the guarantee in writing.