Marais N.O. and Another v Maposa and Others

Mr Samuel Broodie and Ms Ephania Mogogodi Broodie were married in community of property for almost 50 years. The biggest asset of their joint estate was a 100% members' interest in Seepunt Eiendomme CC, which owned a building valued at approximately R20 million. Mr Broodie had a relationship with Ms Mokgohu Martha Ledwaba (the third respondent) since 1986, and they had two children together (the first and second respondents, Ms Maposa and Mr Ledwaba). Ms Ledwaba knew Mr Broodie was married but never inquired about the matrimonial property regime. On 12 May 2014, 75% of the members' interest in Seepunt was transferred to Ms Ledwaba and her two children (25% each), without Ms Broodie's knowledge or consent. Mr Broodie had begun to show signs of mental deterioration from 2013, having suffered a stroke in early 2014. Mr Broodie died on 4 December 2016. Ms Broodie only discovered the transfer in November 2016, shortly before his death. She launched an urgent application to set aside the transfer. The High Court dismissed her claim, holding that her consent was deemed to have been given under section 15(9)(a) of the Matrimonial Property Act. Ms Broodie was granted leave to appeal but died on 26 March 2019. The joint executors of Mr Broodie's estate applied to be substituted as appellants.

• Whether the donation of 75% of the members' interest in Seepunt required the consent of Ms Broodie under section 15(3)(c) of the Matrimonial Property Act 88 of 1984
• Whether Ms Broodie's consent could be deemed to have been given under section 15(9)(a) of the Matrimonial Property Act
• What duty of inquiry is imposed on a third party seeking to rely on deemed consent under section 15(9)(a)
• Whether the transfer was void for lack of spousal consent
• Whether executors of the deceased spouse's estate could be substituted as appellants under Rule 15 of the Uniform Rules

1. Mr Jacques Le Roux Marais and Mr Sivuvuyani Julian Shongwe were substituted as appellants. 2. The first, second and third respondents were ordered to pay the costs of the substitution application, including costs of two counsel. 3. The appeal was upheld. 4. The first, second and third respondents were ordered to pay the appellants' costs of the appeal, including costs of two counsel. 5. The High Court order was set aside and replaced with an order: (a) declaring the transfer of 25% each of the members' interest to the first, second and third respondents void; (b) directing the respondents to sign all necessary documentation within five days to re-register the members' interest in the name of the joint estate, failing which the Sheriff was authorized to do so; and (c) ordering the first, second and third respondents to pay the applicant's costs in the court below, including costs of two counsel.

The binding legal principles established are: (1) A spouse may not donate an asset of the joint estate without the consent of the other spouse if such donation does or will probably unreasonably prejudice the interest of the other spouse (section 15(3)(c) of the Matrimonial Property Act). (2) Where a transaction requiring spousal consent is entered into without such consent, it is void and of no effect, subject to section 15(9)(a). (3) Section 15(9)(a) only deems consent to have been given if the third party proves both: (a) that they did not actually know consent was lacking; and (b) that they could not reasonably have known consent was lacking. (4) The phrase 'cannot reasonably know' in section 15(9)(a) imposes a positive duty on the third party to make the enquiries that a reasonable person would make in the circumstances, including inquiries as to: (a) whether the contracting party is married; (b) the matrimonial property regime; (c) whether spousal consent is required; and (d) whether such consent has been given. (5) Knowledge that the contracting party is married triggers the duty of inquiry. A third party who knows of the marriage but makes no inquiries about the matrimonial property regime and consent cannot rely on section 15(9)(a). (6) The burden of proving the requirements of section 15(9)(a) rests on the party seeking to rely on deemed consent.

The court made several important obiter observations: (1) The academic debate about whether section 15(9)(a) strikes an appropriate balance between protecting non-contracting spouses and protecting third parties was noted but not engaged with, as it was unnecessary for the decision. (2) Plasket JA emphasized that anything less than a duty of reasonable inquiry would render section 15(9)(a) a dead letter and undermine the Matrimonial Property Act's purpose of promoting equality in marriages in community of property. (3) The court strongly criticized executor Mr Shongwe's position of 'neutrality' in the dispute, stating: 'When he was appointed as an executor, he was not appointed to champion one of the disputing parties. He was appointed to act in the best interests of the estate...It was not open to, or prudent of Mr Shongwe to assert a position of "neutrality".' This serves as a reminder of executors' fiduciary duties. (4) The court noted that the donation disproportionately benefited Mr Broodie's 'second family' at the expense of his 'first family,' contrary to the stated intention of providing equally for both families. (5) The judgment acknowledges but does not decide issues relating to fraud and capacity that were referred to trial by the High Court, as these became moot once the consent issue was resolved in favor of the appellants.

This judgment provides important guidance on the interpretation and application of section 15(9)(a) of the Matrimonial Property Act 88 of 1984, particularly regarding the duty of inquiry imposed on third parties contracting with spouses married in community of property. The court clarified that: (1) A third party cannot simply rely on representations about marital status but must make active, reasonable inquiries. (2) The phrase 'cannot reasonably know' in section 15(9)(a) imports an objective standard and imposes a positive duty to investigate. (3) Knowledge that a person is married triggers an obligation to inquire about the matrimonial property regime and whether spousal consent is required and has been obtained. (4) Without such inquiries, a third party cannot rely on deemed consent, and transactions entered into without actual consent will be void. The judgment reinforces the protective purpose of section 15 for non-contracting spouses and clarifies the limits of the protection afforded to third parties. It demonstrates that courts will not permit third parties to benefit from willful blindness or failure to make basic inquiries. The case also addresses procedural issues regarding substitution of parties following death of a party, and contains a stern reminder to executors about their fiduciary duties.