Matini v Matini and Others (20991/2021) [2022] ZAGPPHC 218 (23 March 2022)

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

HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

23 March 2022

Case No: 20991/2021

In the matter between:

LONGASIZWE

BETTY

MATINI Applicant

and

JOHANNES

TSAKANE

MATINI First Respondent

KHENSANI

MARGARET

MATINI Second Respondent

KGOMOTSO

BELLA

MATINI Third Respondent

MZAMANE

WILLIAM

KHOZA Fourth Respondent

TSHIPA

GLADYS

KHOZA Fifth Respondent

THE REGISTRAR OF DEEDS,

PRETORIA Sixth Respondent

JUDGMENT

LAZARUS AJ

Introduction and factual background

1. This is an application for an order declaring the sale and subsequent transfer of an immovable property from the first respondent to the fourth and fifth respondent unlawful and certain consequential relief.

2. The basis for the declarator is that the sale agreement did not comply with section 15(2)(a) of the Matrimonial Property Act 88 of 1984 which requires a spouse married in community of property to obtain the written consent of the other spouse to alienate immovable property forming part of the joint estate.

3. It is common cause that the written consent of the applicant, who was married to the first respondent in community of property at the time the sale agreement was concluded, was not obtained as contemplated in the aforesaid question.

4. Section 15(9)(a) of the Matrimonial Property Act provides an exception to this prohibition. In terms of this section, when a spouse enters into a transaction with a person contrary to the provisions of, inter alia, section 15(2)(a) and that person does not know and cannot reasonably know that the transaction is being entered into contrary to that provision, it is deemed that the transaction concerned has been entered into with the required consent.

5. The issue before me is whether this exception is applicable to the facts of this matter and accordingly whether the abovementioned sale agreement should be deemed to have been entered into with such consent despite it being common cause that such consent was not in fact obtained.

6. The relevant background appears from the affidavits filed and may be summarised as follows.

6.1. Prior to his marriage to the applicant, the first respondent was the owner of the immovable property situated at [….]. The first respondent acquired ownership of the property after the death of his erstwhile wife to whom he was married in community of property.

6.2. The first respondent and the applicant were married on 29 September 1998 in community of property.

6.3. During or about 2004, the first respondent approached the applicant to obtain her consent for the transfer of the property to the first respondent’s (now late) sister and her husband, the fifth and fourth respondents respectively.

6.4. According to the first respondent, the applicant’s attitude to the proposed sale was that she wanted nothing to do with the property and the proposed sale was never discussed again between the applicant and the first respondent.

6.5. The first respondent’s version is corroborated by the evidence of the first respondent children (the second and third respondents - born of his previous marriage). In their affidavits, the second and third respondents state that prior to the sale they, together with the applicant and the first respondent, were called to a meeting with their grandmother to discuss the proposed sale of the property. At this meeting the applicant stated that she wanted nothing to do with the property and refused to be involved in any transaction regarding the property.

6.6. At that time, the second and third respondents lived at the property and the applicant and the first respondent lived at another property situated at [….].

6.7. The intention behind the sale, as is borne out by the subsequent sales and transfers of the property, was for the fifth and fourth respondents to purchase the property and sell it to the second and third respondents once they finished their schooling and started working and were able to purchase it.

6.8. According to the first respondent, the sale was a means to preserve the property for his children as the first respondent was in arrears in paying the bond instalments and the property was at risk of being auctioned by the financing bank.

6.9. As alluded to above, the property was duly sold and transferred to the fifth and fourth respondents during or about 2004 and was subsequently sold and transferred to the second and third respondents during or about 2010.

6.10. It does not appear to be in dispute that at no time prior or subsequent to the sale did the applicant make any financial contribution to the purchase or upkeep of the property.

6.11. The applicant and the first respondent are now in the process of getting divorced. Despite having displayed no interest in the property during the currency of their marriage, the applicant now wishes for the sale and transfer of the property to the fifth and sixth respondents and the subsequent sale and transfer of the property to the second and third respondents to be declared unlawful and for the property to be declared part of the joint estate which is to be divided between them in the divorce proceedings.

Discussion

7. Recently, in Vuyeka v Ntshane and Others (unreported Case No. 518/2019 [2020] ZASCA 167 (11 December 2020), the Supreme Court of Appeal dealt with the consequences of the failure to acquire consent in terms of section 15 of the Matrimonial Property Act.