Walljee and Another v Botto and Another (A5044/08) [2009] ZAGPJHC 36 (7 August 2009)

Walljee and Another v Botto and Another (A5044/08) [2009] ZAGPJHC 36 (7 August 2009)

The court held that the agreement of sale was concluded by the first appellant while married in community of property, without the written consent of the second appellant, as required by section 15(2)(g) of the Matrimonial Property Act. However, the subsequent written ratification by the second appellant, provided within a reasonable time after the agreement, satisfied the requirements of section 15(4) and (5) of the Act. The agreement therefore became valid and enforceable upon ratification. The respondents were not entitled to resile from the agreement, and the appellants were entitled to the relief sought, namely an interdict preventing alienation or disposal of the property and...

Citation
[2009] ZAGPJHC 36
Parties
Appellant: Raymond Walljee; Appellant: Charmaine Walljee; Respondent: Kenneth John Botto; Respondent: Charmanne Isabel Botto
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 August 2009
Case Number
A5044/08
Procedural Posture
Civil Appeal / Appeal From Dismissal of Application for Interdict and Transfer
Outcome
Appeal upheld; application granted.
Judges
Van Oosten
Legal Topics
Matrimonial Property Act, Alienation of Land Act, Consent in Community of Property, Ratification of Contract
Land and Property Civil Procedure Matrimonial Property Act Alienation of Land Act Consent in Community of Property Ratification of Contract

Case Brief

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Parties

Raymond Walljee

Appellant

Charmaine Walljee

Appellant

Kenneth John Botto

Respondent

Charmanne Isabel Botto

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Application for Interdict and Transfer

Legal Issues

  1. 1 Whether the agreement of sale of immovable property concluded by the first appellant without the written consent of the second appellant is valid under section 15 of the Matrimonial Property Act.
  2. 2 Whether subsequent written ratification by the second appellant cures the absence of initial consent.
  3. 3 Whether the agreement falls within the scope of the Alienation of Land Act and section 15 of the Matrimonial Property Act.

Ratio Decidendi

The court held that the agreement of sale was concluded by the first appellant while married in community of property, without the written consent of the second appellant, as required by section 15(2)(g) of the Matrimonial Property Act. However, the subsequent written ratification by the second appellant, provided within a reasonable time after the agreement, satisfied the requirements of section 15(4) and (5) of the Act. The agreement therefore became valid and enforceable upon ratification. The respondents were not entitled to resile from the agreement, and the appellants were entitled to the relief sought, namely an interdict preventing alienation or disposal of the property and...

Court Disposition

Appeal upheld; application granted.

Orders

  • The respondents are interdicted from alienating or disposing of the property described as Stand 605 Bez Valley, 225 and 225a Eighth Avenue, Bez Valley.
  • The respondents are ordered to transfer the property into the names of the appellants.