B v B (2010/50006) [2012] ZAGPJHC 108 (28 May 2012)

B v B (2010/50006) [2012] ZAGPJHC 108 (28 May 2012)

The court finds that clause 8 of the antenuptial contract merely lists assets to be excluded from the accrual and does not record an obligation to transfer or a right to receive transfer of property. The respondent's claim is unsupported by any written agreement that satisfies the requirements of Section 2 of the Alienation of Land Act. The use of the words 'to be' in the contract does not create an enforceable right to future transfer, and the drafting inconsistencies do not alter the legal position. As there is no written instrument conferring the right to transfer, the respondent's claim fails.

Citation
[2012] ZAGPJHC 108
Parties
Appellant: B, JM; Respondent: B, DH
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 May 2012
Case Number
2010/50006
Procedural Posture
Civil Appeal / Appeal From Trial Judgment
Outcome
Appeal upheld; respondent has no enforceable right to transfer of a third share in the property.
Judges
Sutherland
Legal Topics
Alienation of Land Act, Transfer of Property, Antenuptial Contract, Formalities of Contract
Land and Property Civil Procedure Alienation of Land Act Transfer of Property Antenuptial Contract Formalities of Contract

Case Brief

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Parties

B, JM

Appellant

B, DH

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Judgment

Legal Issues

  1. 1 Whether the respondent is entitled to transfer of a one third share in the property at Erf 59 Honeyhills, Johannesburg.
  2. 2 Whether clause 8 of the antenuptial contract constitutes a valid and enforceable agreement for transfer of property.
  3. 3 Whether the requirements of Section 2 of the Alienation of Land Act 68 of 1981 have been satisfied.

Ratio Decidendi

The court finds that clause 8 of the antenuptial contract merely lists assets to be excluded from the accrual and does not record an obligation to transfer or a right to receive transfer of property. The respondent's claim is unsupported by any written agreement that satisfies the requirements of Section 2 of the Alienation of Land Act. The use of the words 'to be' in the contract does not create an enforceable right to future transfer, and the drafting inconsistencies do not alter the legal position. As there is no written instrument conferring the right to transfer, the respondent's claim fails.

Court Disposition

Appeal upheld; respondent has no enforceable right to transfer of a third share in the property.

Orders

  • The order of the trial court granting transfer of a one third share in Erf 59 Honeyhills to the respondent is set aside.
  • No order as to costs.