Visser v Hull and Others (4375/2008) [2009] ZAWCHC 77; 2010 (1) SA 521 (WCC) (21 May 2009)

Visser v Hull and Others (4375/2008) [2009] ZAWCHC 77; 2010 (1) SA 521 (WCC) (21 May 2009)

The court found that the deceased, married in community of property to the Applicant, sold and transferred the jointly owned immovable property without her written consent, in direct contravention of section 15 of the Matrimonial Property Act. The Respondents, as blood relatives and members of a close-knit community, either knew or ought reasonably to have known of the marriage and the necessity for spousal consent. Their failure to make adequate inquiries, coupled with the gross undervaluation of the property, constituted collusion and fraudulent alienation prejudicing the Applicant’s rights. The sale agreement was declared null and void, and the property ordered to revert to the...

Citation
[2009] ZAWCHC 77
Parties
Applicant: Anna Visser; Respondent: Frans Hermanus Hull; Respondent: Caron Debra Hull; Respondent: Aaron Marthinus Johannes Hull; Respondent: Jenine Madelein Hull; Respondent: Registrar of Deeds
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 May 2009
Case Number
4375/2008
Procedural Posture
Review Application / Judgment
Outcome
Application granted; agreement of sale set aside; property registration to revert to deceased estate; costs apportioned between Respondents and deceased estate.
Judges
Dlodlo
Legal Topics
Matrimonial Property Act, Alienation of Land, Fraudulent Conveyance, Unjustified Enrichment, Condictio Indebiti, Community of Property
Land and Property Civil Procedure Family and Children Matrimonial Property Act Alienation of Land Fraudulent Conveyance Unjustified Enrichment Condictio Indebiti +1 more

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Parties

Anna Visser

Applicant

Frans Hermanus Hull

Respondent

Caron Debra Hull

Respondent

Aaron Marthinus Johannes Hull

Respondent

Jenine Madelein Hull

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the sale and transfer of immovable property forming part of a joint estate, executed by one spouse without the other's consent, is valid.
  2. 2 Whether the Respondents, as third parties, had or ought to have had knowledge of the Applicant's marriage and the lack of required consent.
  3. 3 Whether the purchase price constituted a donation or fraudulent alienation prejudicing the Applicant's rights in the joint estate.

Ratio Decidendi

The court found that the deceased, married in community of property to the Applicant, sold and transferred the jointly owned immovable property without her written consent, in direct contravention of section 15 of the Matrimonial Property Act. The Respondents, as blood relatives and members of a close-knit community, either knew or ought reasonably to have known of the marriage and the necessity for spousal consent. Their failure to make adequate inquiries, coupled with the gross undervaluation of the property, constituted collusion and fraudulent alienation prejudicing the Applicant’s rights. The sale agreement was declared null and void, and the property ordered to revert to the...

Court Disposition

Application granted; agreement of sale set aside; property registration to revert to deceased estate; costs apportioned between Respondents and deceased estate.

Orders

  • The Agreement of Purchase and Sale entered into by the deceased and the Respondents on 19 May 2006 is declared null and void and set aside.
  • The Registrar of Deeds is ordered to deregister the property from the Respondents and restore registration and ownership to the deceased estate, with due regard to the Alienation of Land Act 68 of 1981.