Scholtz v Scholtz

The parties, who were married at the time, concluded a written deed of donation on 18 November 2007 in terms of which the respondent donated his undivided half share in an immovable property to the appellant, who already owned the other half share. The property was encumbered by a mortgage bond of approximately R2 million in favour of Nedbank. The deed of donation made no express provision regarding liability for the bond debt. The appellant alleged that she complied with her obligations and tendered transfer, but the respondent refused to sign the transfer documents. She sued for specific performance. The respondent raised several defences, including that the donation was invalid for non-compliance with s 5 of the General Law Amendment Act 50 of 1956 because the deed did not record a material term dealing with the bond liability.

The appeal was upheld with costs, including the costs of two counsel. The order of the Western Cape High Court was set aside and replaced with an order dismissing the defence of invalidity raised in paragraph 9 of the respondent’s plea and directing the respondent to pay the costs of the preliminary proceedings arising from that defence.

The case clarifies the application of statutory formalities to donations of immovable property and confirms that the absence of an express term in a written contract does not automatically render it invalid. It affirms the compatibility of tacit terms and contextual interpretation with statutory requirements that contracts be in writing, and limits an overly formalistic approach to s 5 of the General Law Amendment Act.