Du Plessis and Others v Pienaar NO and Others (514/2001) [2002] ZASCA 163; [2002] 4 All SA 311 (SCA); 2003 (1) SA 671 (SCA) (26 September 2002)

Du Plessis and Others v Pienaar NO and Others (514/2001) [2002] ZASCA 163; [2002] 4 All SA 311 (SCA); 2003 (1) SA 671 (SCA) (26 September 2002)

The court held that debts are incurred by persons, not by their estates, and that spouses married in community of property are jointly liable for debts incurred by either. Upon insolvency, all property of both spouses—including separate property excluded from the joint estate by testamentary stipulation—is available to creditors. The Insolvency Act requires that the whole estate of the insolvent be divested and does not permit sequestration of only part of the estate. The Matrimonial Property Act recognises separate property only in the relationship between spouses, not as a shield against third-party creditors. Previous decisions to the contrary were found to be unsound, as they failed...

Citation
[2002] ZASCA 163
Parties
Appellant: Louisa du Plessis; Respondent: Mariana Pienaar NO; Respondent: Nico Hendrik Boezaart NO; Respondent: ABSA Bank Limited; Respondent: Master of the High Court; Respondent: Susca Watts (born du Plessis); Respondent: Petro du Plessis; Respondent: Lourens Lewies du Plessis
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 September 2002
Case Number
514/2001
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division
Outcome
Appeal dismissed with costs.
Judges
Harms, Cameron, Brand, Nugent, Heher
Legal Topics
Marriage in Community of Property, Separate Property, Insolvency of Spouses, Creditor Claims, Matrimonial Property Act
Civil Procedure Family and Children Marriage in Community of Property Separate Property Insolvency of Spouses Creditor Claims Matrimonial Property Act

Case Brief

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Parties

Louisa du Plessis

Appellant

Mariana Pienaar NO

Respondent

Nico Hendrik Boezaart NO

Respondent

ABSA Bank Limited

Respondent

Master of the High Court

Respondent

Susca Watts (born du Plessis)

Respondent

Petro du Plessis

Respondent

Lourens Lewies du Plessis

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division

Legal Issues

  1. 1 Whether separate property inherited by a spouse married in community of property is available to creditors upon insolvency of both spouses.
  2. 2 Whether a testator's stipulation excluding inherited property from the joint estate and marital power protects it from creditors on insolvency.
  3. 3 Whether the Matrimonial Property Act creates a separate estate immune from joint creditors.

Ratio Decidendi

The court held that debts are incurred by persons, not by their estates, and that spouses married in community of property are jointly liable for debts incurred by either. Upon insolvency, all property of both spouses—including separate property excluded from the joint estate by testamentary stipulation—is available to creditors. The Insolvency Act requires that the whole estate of the insolvent be divested and does not permit sequestration of only part of the estate. The Matrimonial Property Act recognises separate property only in the relationship between spouses, not as a shield against third-party creditors. Previous decisions to the contrary were found to be unsound, as they failed...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.