Sishuba v Skweyiya (842/2007) [2008] ZAECHC 25 (6 March 2008)

Sishuba v Skweyiya (842/2007) [2008] ZAECHC 25 (6 March 2008)

The court held that section 15(9) of the Matrimonial Property Act places an onus on the party seeking to rely on it to prove that they did not know and could not reasonably have known that the required spousal consent was lacking. The enquiry is objective and requires reasonable steps to ascertain the existence of consent. The first respondent failed to discharge this onus, as her affidavit did not address whether she could not reasonably have known that the second respondent's consent was absent. Consequently, section 15(9) did not apply, and the addendum was void for want of consent. The main application succeeded, and the principal relief in the counter-application was refused, except...

Citation
[2008] ZAECHC 25
Parties
Applicant: Andile Gideon Sishuba; Respondent: Nompucuko Skweyiya; Respondent: Nomawethu Jean Sishuba
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
6 March 2008
Case Number
842/2007
Procedural Posture
Civil Application / Final Judgment
Outcome
Main application granted; principal relief in counter-application refused; reimbursement for bond contributions ordered; costs awarded as per result.
Judges
C. Plasket
Legal Topics
Matrimonial Property Act, Alienation of Land Act, Community of Property, Onus of Proof, Transfer of Immovable Property
Family and Children Land and Property Matrimonial Property Act Alienation of Land Act Community of Property Onus of Proof Transfer of Immovable Property

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Parties

Andile Gideon Sishuba

Applicant

Nompucuko Skweyiya

Respondent

Nomawethu Jean Sishuba

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the addendum to the consent paper constitutes a valid deed of alienation under the Alienation of Land Act.
  2. 2 Whether the second respondent's consent to the alienation is deemed to have been given in terms of section 15(9)(a) of the Matrimonial Property Act 88 of 1984.

Ratio Decidendi

The court held that section 15(9) of the Matrimonial Property Act places an onus on the party seeking to rely on it to prove that they did not know and could not reasonably have known that the required spousal consent was lacking. The enquiry is objective and requires reasonable steps to ascertain the existence of consent. The first respondent failed to discharge this onus, as her affidavit did not address whether she could not reasonably have known that the second respondent's consent was absent. Consequently, section 15(9) did not apply, and the addendum was void for want of consent. The main application succeeded, and the principal relief in the counter-application was refused, except...

Court Disposition

Main application granted; principal relief in counter-application refused; reimbursement for bond contributions ordered; costs awarded as per result.

Orders

  • The first respondent is ordered to sign, on demand, all documentation required by the applicant's attorneys to facilitate registration of transfer of erf 3657 at 60 Kei Crescent, Komani Park, Queenstown.
  • If the first respondent fails to sign, the Sheriff is authorised and directed to sign such documentation as required for transfer.