SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

  
IN THE NORTH GAUTENG HIGH COURT, PRETORIA 
(REPUBLIC   OF SOUTH AFRICA)
DATE: 09/10/2017
CASE NO. 15504/2014
In the matter between: 
C. N. M.                                                                                                                                                                                                                               PLAINTIFF
and
C. K. M.                                                                                                                                                                                                                       DEFENDANT
JUDGMENT
MPHAGA AJ:
[1] This is a special case brought in terms of Rule 33(1) of the Uniform Rules of Court.   The   Plaintiff   in   her   particulars   of   claim   sought   a   decree   of   divorce against the defendant including prayers b to g, as set out in the Plaintiff's particulars of claim.
[2] On 31 March 2017, I granted the following order by agreement between the parties:
" 1.              The marriage between the plaintiff and defendant is dissolved;
2.             The joint estate is to be divided between the parties, subject to the order in respect of prayer (g) of the particulars of claim being held over pending determination of the written statement of facts and special case in terms of Rule 33(1) of the Uniform Rules of Court.
3.             The primary care and permanent place of residence of the minor child to be awarded to the plaintiff subject to the defendant's specific parental responsibilities and rights to contact with the minor child at all reasonable times;
4.             The issue of maintenance is referred to maintenance court;
5.             The plaintiff to retain the minor child on her medical aid scheme at her costs and the defemndant to be responsible for any shortfalls not covered by the medical aid scheme in respect of the minor child;
6.             Each party to pay its own costs."
[3] The relief sought in terms of prayer (g) of the plaintiff's particulars of claim was disputed by the defendant and it was for that reason that the parties by way of a stated case agreed that the dispute be separately determined in terms   of   Rule   33(1)   of   the   Uniform   Rules   of   Court. For   purposes of completeness, prayer (g) of the Plaintiff's particulars of claim was couched as follows:
"   (g)         The   annulment   of   the endorsement on   the   Deed of Transfer T[...] registered at the Pretoria Deeds Office on 30 June 2011 that excludes the immovable property from the consequences of a marriage in community of property;"
BRIEF BACKROUND
[4] The following constitutes a brief background which led to the endorsement of the Deeds of Transfer T[...] by the Registrar of Deeds in favour of the Defendant and the current dispute between the parties.
[5] The Defendant inherited an immovable property situate at Erf [...] L. G. Township, known as [...] C. A., L. G., Pretoria (" the immovable property"). It is this immovable property that is held by virtue of Deeds of Transfer T[...] and which the Defendant alleges had inherited from his mother's estate who passed away intestate on 1 February 2008.
[6] On 09 December 2008, the immovable property was registered in the name of the Defendant and on 17 September 2010, the parties were married to each other in community of property.
[7] On 30 June 2011, pursuant to an application by way of an affidavit made in terms of section 4(1)(b) of the Deeds Registries Act 47 of 1937 by the   defendant, an endorsement was made against the title deed of the immovable property,   wherein same was   excluded from the consequences   of a marriage   in community   of property.
[8] It appears ex facie the aforesaid application made by   the   defendant,   that   same was signed on 1 September 2010 (approximately 16 days before marriage between the parties) and subsequently this led to an endorsement   of the title deed to the immovable property being endorsed on 30 June 2011 (approximately nine months after the marriage between the     parties).
ISSUES TO BE DECIDED
[9] The parties in their stated case agreed that the questions of law to be adjudicated by this court were the interpretation of the Matrimonial Property Act 88 of 1984 ("the MPA"), read with section 1(1)(b) of the Intestate Succession Act 81 of 1987 and section (4(1)(b) of the Deeds Registries Act 47 of 1937 (" the Registries Act").
[10] The court was requested by the parties to adjudicate on the following:
10.1               The validity or legality of the endorsement made against the title deed   of the immovable property and the effect thereof, if any, pursuant to the Defendant's affidavit   and application   made in terms   of   section 4(1)(b) of the defendants application in terms of section 4(1)(b) of the Deeds Registries   Act 47 of 1937; and,
10.2               Whether the benefits of a marriage in community of property can be validly excluded in respect of the immovable property through the aforesaid endorsement.
ANALYSIS OF THE FACTS AND FINDINGS
[11] At the commencement of the hearing, I raised the question of non-joinder of the Registrar of Deeds, noting that the matter resonated on the latter's endorsement of the title deed of the immovable property. However, I was persuaded by both parties that same was not necessary as the provisions of section 97(1) of the Deeds Registries Act 47 of 1937 could remedy such non joinder. The provisions of section 97(1) of the Deeds Registries Act, provides:
" Before any application is made to the court for authority or an order involving the performance of any act in a deeds registry, the applicant shall give the registrar concerned at least seven days' notice before the hearing of such application and such registrar may submit to the court such report thereon as he may deem desirable to make".
[12] On 31 March 2017 I adjourned the hearing of this matter pending the report of the Registrar in terms of section 97 of the Registries Act. The report of the Registrar was submitted and having considered same, the defendant, argues same should not be considered due conflicting reports made by the Registrar on the same matter. The Registrar in brief alleges that his office did not solicit further information before the endorsement was made.
[13] However, it is instructive to consider the basis   of the defendant's   application   for endorsement in order to determine the relevance of the Registrar report. The following was the basis of the defendant's application for the alleged endorsement , namely, to correct a condition that was, "incorrectly omitted in   the Deed of Transfer T110182/200 :
"Heir to inherit free of community: That any benefit due to the beneficiary in terms of the inheritance shall be excluded from any accrual system, community of property or profit and loss which may subsist at the date that benefit devolve upon him or her or at any time thereafter and shall not be subject to the marital power of any person.
[14] On the other hand, the Plaintiff argued that the aforesaid endorsement was made in error in that Section 4(1)(b) of Act makes provision for the correction   of an error in the name or the description of any person or property mentioned in   any   deed   or   other   document,   or   in   the   conditions   affecting any such property.
[15] The Plaintiff in her submission, contended that the Registrar of Deeds did carefully and meticulously scrutinize the Defendant's application in terms of Section 4(1)(b) together with all supporting documents before granting the application, inter alia in that the application does not disclose any explanation   of where the condition sought to be "corrected" originates from   and   how   it came about that it was "omitted".
[16] The Plaintiff further submitted that a condition couched such as the one that the Defendant sought to include is usually found in a will and that   the   Registrar of Deeds was obliged in terms of Section 4(1)(a)   of   the   Act   to require sufficient proof to support the   allegations   made by the Defendant   in   his application in terms of Section 4(1)(b). Accordingly, the Plaintiff submitted that without the aforesaid proof, the Registrar of Deeds could not have validly made the endorsement. The reports of the Registrar appears to support this contention that the endorsement was indeed made in error, as the necessary documents were not sought prior to effecting the endorsement in   issue.
[17] The Plaintiff referred this court   to the   Chief Registrar's   Circular 2 of 2010, which stated that the provisions of Section 4(1)(b) can be used ONLY TO CORRECT ERRORS Based on the said circular the Plaintiff contends that the provisions of section 4(1)(b) of the Registries Act, cannot find any application effect correction   that has no legal basis such as the one that was sought by the Defendant.
[13] To revert to the questions posed above, both parties have submitted concise heads of argument why this court should grant the orders sought by either party. The Plaintiff briefly argues that in the absence of an antenuptial contract providing otherwise, marriage creates community of property and of profit and loss between the spouses. The Plaintiff submitted that for a condition   excluding community   of property to be valid, it must be included in a valid will   of   a testator or   testatrix.
[14] The Defendant on the other hand submitted that section 5 of the MPA   provides that an inheritance, a legacy or a donation which accrues   to   a   spouse during the subsistence of his marriage , as well as any asset which he acquired by virtue of his possession or former possession   of such   inheritance
, legacy or donation, does not form part of the accrual of his estate, except in so far as the spouses may agree otherwise in their antenuptial   contract or in   so far as the testator or donor may stipulate otherwise.
[15] According to the Defendant, the immovable property is an inheritance from his mother's estate who passed away on 1 February 2008, and consequently, the immovable property is excluded from the operation of the principles of a marriage in community of property.
[16] In fortifying his argument, the Defendant contended   that prior   to entering   into a marriage relationship with the Plaintiff, the Defendant had intended to excluded the immovable from the joint estate by making an application in terms of Section 4(1)(b) of the Deeds Registry Act as appears from   the relevant duly signed and dated 1 September 2010.
[17] It is the Defendant's case that I should accept the interpretation of Section 4(1)(b) of the Registries Act to include the endorsement as effected in respect of the immovable property.
[18] Where a person is married in community of property, all assets, save for those expressly excluded therefrom, form part of a joint estate and each spouse enjoys an equal undivided share of such joint estate[1] . A   testamentary condition excluding community of property must be clear and expressly made by the testator or testatrix.
[19] The fact that the testatrix had died intestate and the Defendant inherited the immovable property intestate, does not in terms of section 5 of the MPA automatically excludes the immovable property from the consequences of marriage in community of property. The testatrix was enjoined in law to express her intention by way of a will or fideicommissum to expressly exclude the inheritance from the community of property. It is for this reason that the legislator in section   14   of the   Deeds   Registries Act,   made   provision for Conditions emanating from testamentary disposition or intestate succession to be registrable to provide certainty on dispute that may arise as to the status of a right to such a property by a spouse married in community of property.
[20] The right to exclude a property from the consequences of community of property is that of a testatrix and not of a beneficiary or heir to the property. It     is the Defendant's mother who was in law entitled to express her intention to exclude the immovable property and not the Defendant.
[21] The Defendant immediately upon registration of the immovable property became the owner thereof and upon the conclusion of his marriage with the Plaintiff he had remedies in law to exclude the property from the   consequences   of the marriage   in community of property.   He   had   an election at the time of his marriage to choose the marriage system that would exclude the immovable property from the consequences of marriage in community of property. Chapter I of the MPA makes provision for an accrual system while Chapter Ill provides for community of property system. It is for the parties to a marriage to make an election which will ultimately provide certainty on the division of their estate in the event of a   divorce.
[22] The provisions of section 5 of the MPA falls under Chapter I of the MPA which deals with the accrual system and cannot be construed to apply to a marriage in community of property system falling under Chapter Ill.
[23] The Defendant's attempt to utilize the provisions of section 4(1)(b) of the Registries Act to exclude the property from the consequences of the marriage in community of property were ill conceived in that such a right if any resides with a testator/testatrix and most importantly, section 4(1)(b) is strictly for corrections and not for the purposes for which the Defendant intended. This is clearly set out in the circular of the Registrar of Deeds referred to   hereinabove.
[24] I therefore do not find any difficulty in finding that the endorsement made by the Registrar of Deeds in terms of section4(1)(b) was not validly made and it had no effect at all on excluding the immovable property from the proprietal consequences of   a marriage in community of   property.
THE ORDER
Consequently I find that the Plaintiff has made out a case justifying the relief sought in the prayer (g) of the particulars of claim and I make the following order:
1.         The annulment of the endorsement on the Deed of Transfer T[...] registered at the Pretoria Deeds Office on 30 June 2011 that excludes the immovable property from the consequences of a marriage in community of property;
2.         Each party pay its own costs
_________________
M MPHAGA AJ

[1] Lawsa, Vol 16, 2nd edition, page 75.