Mafemani Collet Vukeya v Shalate Nelly Ntshane and Others

The first respondent and the deceased (Mr Wilson Mkhatshane Ntshane) were married in community of property on 13 May 1980. They lived together on immovable property at Erf 12103 Diepkloof, Soweto. Due to old age, the first respondent moved to Limpopo, while the deceased remained on the property. On 5 April 2009, the deceased sold the property to the appellant for R50,000 without the knowledge or consent of the first respondent. The deceased presented himself to the appellant as unmarried. Both the deed of transfer (dated 19 May 2009) and the power of attorney described the deceased as unmarried. The deceased passed away on 27 July 2013. On 8 September 2013, the first respondent was appointed executrix of the deceased estate and only then became aware of the sale. The first respondent brought an application in the high court to cancel the deed of transfer on the basis that she had not consented to the sale as required by s 15(2)(a) of the Matrimonial Property Act 88 of 1984. The appellant contended he was not aware the deceased was married and that the deceased was staying alone on the property when he purchased it.

• Whether a sale of immovable property by one spouse married in community of property without the consent of the other spouse is valid where the third party purchaser did not know and could not reasonably have known that such consent was lacking
• Whether the appellant brought himself within the protection of s 15(9)(a) of the Matrimonial Property Act 88 of 1984
• What duties of enquiry are required of a third party purchaser under s 15(9)(a) of the Matrimonial Property Act

The appeal was upheld with costs. The order of the high court was set aside and replaced with an order dismissing the application with costs. The deed of transfer in favour of the appellant remained valid.

Where a spouse married in community of property alienates immovable property without the consent of the other spouse as required by s 15(2)(a) of the Matrimonial Property Act 88 of 1984, the transaction will nonetheless be valid if the third party purchaser did not know and could not reasonably have known that consent was lacking, as provided in s 15(9)(a). The burden rests on the party seeking to rely on the validity of the transaction to establish both subjective lack of knowledge and that they could not reasonably have known (an objective standard). A third party purchaser is entitled to rely on formal legal documents and representations by the contracting spouse regarding marital status where there are no circumstances that would put a reasonable person on enquiry to make further investigations. The deemed consent provision in s 15(9)(a) operates to protect bona fide third parties and balances the interests of non-consenting spouses against the security of commercial transactions.

The Court noted that the amici curiae (Paul Zietsman and Rico Van der Merwe) raised issues concerning the duties of conveyancers, but held it was not necessary to consider those arguments given the conclusion reached. The Court also observed that the first respondent's founding affidavit lacked particularity in important respects, including failing to specify exactly when she moved to Limpopo, when the last child moved out, where the deceased was staying at the time of his death, and who was staying on the property when it was sold. The Court expressed gratitude to the amici curiae for their assistance at short notice, as the first respondent belatedly opposed the appeal and the second and third respondents abided the decision of the Court.

This case clarifies the application of s 15(9)(a) of the Matrimonial Property Act 88 of 1984 and the protection afforded to bona fide third party purchasers. It confirms that where a third party did not know and could not reasonably have known that consent of a non-contracting spouse was lacking, deemed consent operates to validate the transaction. The judgment reinforces the balance struck by the legislation between protecting non-consenting spouses from maladministration of the joint estate and protecting innocent third parties who contract in good faith. It confirms that third parties are entitled to rely on formal legal documents and representations by the contracting spouse about marital status, particularly where there are no circumstances that would put them on enquiry. The case also emphasizes the importance of courts considering legislation contextually and holistically, rather than selectively applying certain provisions while ignoring others.