Du Plessis v Pienaar NO and Others

The appellant was married in community of property. During the marriage she inherited farms, equipment and livestock from her father, subject to an express stipulation that the inheritance would not form part of the joint estate, would not be subject to her husband’s marital power, and would not fall into any insolvent estate of her husband. Her husband conducted a moneylending business for the benefit of the joint estate. The business failed and the joint estate of the spouses was finally sequestrated. The trustees of the insolvent estate claimed the appellant’s inherited property for the benefit of creditors. The appellant applied to court for declaratory and interdictory relief to exclude her separate property from the insolvent estate, but her application was dismissed. She appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs. The appellant’s separate inherited property was held to be available to creditors in the sequestrated estate.

The case authoritatively clarifies that separate property of a spouse married in community of property is not immune from the claims of joint creditors upon insolvency. It resolves conflicting High Court authority and affirms the primacy of insolvency principles under the Insolvency Act over private arrangements or testamentary stipulations.