Govender and Another v Maitin and Another

• Jurisdiction: South Africa
• Citation: 2008 (6) SA 64 (D)

Govender and Another v Maitin and Another
2008 (6) SA 64 (D)

2008 (6) SA p64

Citation	2008 (6) SA 64 (D)
Case No	11976/2007
Court	Durban and Coast Local Division
Judge	Ntshangase J
Heard	November 20, 2007
Judgment	February 8, 2008
Counsel	M Moodley for the applicants.; S Stokes SC for the first respondent.; No appearance for the second respondent (the Registrar of Deeds).

Flynote : Sleutelwoorde B

Husband and wife — Proprietary rights — Community of property — Spouse unlawfully contracting with third party — Third party acting in good faith and not knowing that contract unlawfully concluded — Partners in marriage not entitled to enforce such contract — Matrimonial Property Act 88 of 1984, s 15(2). C

Headnote : Kopnota

Section 5(9) of the Matrimonial Property Act 88 of 1984 was not enacted to enable partners in a marriage in community of property to enforce transactions against third parties who act in good faith and do not or cannot reasonably know that the transaction is being entered into contrary to D s 15(2) of the Act. The mere fact that s 15(9) provides that 'it is deemed that the transaction concerned has been entered into with the consent required in terms of subsection (2)' does not change this. (Paragraph [11] at 68C - D.)

Cases Considered

Annotations

Reported cases E

Blew v Snoxell 1931 TPD 226: applied

Jones v Wykland Properties 1998 (2) SA 355 (C): applied

Just Names Properties 11 CC and Another v Fourie and Others 2007 (3) SA 1 (W): dictum at 14A - B applied

Levin v Drieprok Properties (Pty) Ltd 1975 (2) SA 397 (A): referred to

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (2) SA 623 (A): applied. F

Statutes Considered

Statutes

The Matrimonial Property Act 88 of 1984, s 15(2), (9): see Juta's Statutes of South Africa 2007/8 vol 5 at 2-234, 2-235.

Case Information

G Return day of a rule nisi interdicting the first respondent from alienating or encumbering certain immovable property. The facts appear from the reasons for judgment.

M Moodley for the applicants.

S Stokes SC for the first respondent.

H No appearance for the second respondent (the Registrar of Deeds).

Cur adv vult.

Postea (February 8).

Judgment

Ntshangase J: I

[1] A rule nisi was issued after an urgent application on 22 October 2007 and it called upon the first respondent to show cause why the following relief should not be granted, namely an order that:

2. (a)

The first respondent be interdicted and restrained from selling, letting, passing a mortgage over or in any way encumbering or

2008 (6) SA p65

Ntshangase J

disposing of the immovable property described as erf 258 A situated at 33 Grundell Road, Glenmore, Durban, KwaZulu-Natal (hereinafter referred to as 'the property').

(b)

The first and second respondents be and are hereby interdicted and restrained from effecting transfer of the property from the name of the first respondent into the name of any person other than the applicants. B

(c)

That, subject to the provisions of para (f) below, the first respondent be and is hereby directed to do all things necessary and to sign all documents forthwith upon the service of this order upon him so as to cause the property to be transferred into the name of the first and second applicants.

(d)

In the event of the first and second respondents not adhering to C para (c) above, then and in that event and subject to the provisions of para (e) below, the deputy sherriff be and is hereby authorised to sign all documentation on behalf of the first respondent to give effect to the aforementioned transfer of the property to the applicants.

(e)

That the operation of the relief set forth in para (c), alternatively D para (d), is subject to the applicants complying with their payment requirements and other outgoings necessary to effect transfer as set out in the purchase and sale agreement, annexure A to these papers.

(f)

That the first respondent be and is hereby directed to bear the costs of this application on an attorney and own client scale. E

3.

That the orders prayed for in paras (a), (b) and (f) hereof are to operate as an interim order pending the return date of the rule nisi.

[2] The application is opposed, on the version of the first respondent, on the grounds that after the first respondent received an agreement of F purchase and sale with the first applicant's offer to purchase his property, the first respondent made a counter-offer to the first applicant which, on first respondent's version, the applicant did not sign; instead it was communicated by the applicants to the first respondent via Craig Goodsell (Goodsell), an estate agent involved in the transaction, that there was no agreement. It is opposed also on the applicants' own G version, that such version discloses no cause of action, for reasons which will be dealt with later.

[3] On the facts as averred by the applicants, on 4 August 2007 the first applicant signed a purchase and sale agreement (the...