Mulaudzi v Mudau and Others

The first and second respondents were married in community of property. An immovable property, registered in the second respondent’s name prior to the marriage, formed part of the joint estate. During the subsistence of the marriage and while divorce proceedings were pending, the second respondent sold the property to the appellant without the written consent of his spouse, as required by s 15(2)(a) of the Matrimonial Property Act 88 of 1984. The second respondent represented to the appellant that he was unmarried, both in the deed of sale and in a sworn declaration. The property was transferred to the appellant. The first respondent later applied to have the sale set aside as null and void for lack of spousal consent. The High Court full court set aside the sale, prompting an appeal to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the full court setting aside the sale was replaced with an order dismissing the appeal with costs, thereby confirming the validity of the sale agreement and transfer.

The case clarifies the correct interpretation and application of s 15(9)(a) of the Matrimonial Property Act and reinforces the protection afforded to bona fide third parties who contract with spouses married in community of property. It confirms that lack of spousal consent does not invalidate a transaction where the third party neither knew nor could reasonably have known of the absence of consent, and it limits the ability of non-contracting spouses to rely on misrepresentation made to third parties.