Visser v Hull and Others

The applicant, Anna Visser, was married in community of property to Pieter Phillipus Matthys (the deceased) since 10 June 1962. They had separated but were not divorced. The deceased, without the applicant's knowledge or consent, sold the family home at Erf 106 Tindall Street, McGregor to the first to fourth respondents (who are blood relatives of the deceased) for R10,500. The applicant had lived in this property with her children for approximately 29 years. The applicant only became aware of the sale after the property had been transferred and registered in the respondents' names. The respondents then sought to evict the applicant, which she successfully resisted. The deceased had declared in the transfer documents that he was unmarried. The applicant's name did not appear on the title deed due to past discriminatory practices regarding property registration for certain race groups. The municipal value of the property was R98,000, compared to the R10,500 sale price. The deceased passed away before the matter was heard.

• Whether the agreement of sale entered into by the deceased without the applicant's written consent is null and void under section 15(2)(ii) of the Matrimonial Property Act 88 of 1984.
• Whether the respondents, as third parties, could reasonably have known that the deceased required spousal consent for the sale, under section 15(9)(a) of the Act.
• Whether the sale at a substantially undervalued price amounted to a donation or gratuitous alienation prejudicing the applicant's interest in the joint estate under section 15(3)(c) of the Act.
• Whether the alienation was fraudulent and whether the respondents colluded with the deceased to prejudice the applicant.
• Whether the respondents are entitled to recover the R10,500 purchase price from the deceased estate on the basis of unjustified enrichment.

The agreement of purchase and sale was declared null and void and set aside. The Registrar of Deeds was ordered to deregister the property by removing the respondents' names and reverting the registration to the deceased's name, so that the property forms part of the deceased estate jointly owned by the applicant and the deceased. The respondents were ordered to pay 50% of the applicant's costs jointly and severally, with the remaining 50% recoverable from the deceased estate.

Where a spouse married in community of property alienates immovable property without the written consent of the other spouse as required by section 15(2) of the Matrimonial Property Act 88 of 1984, such alienation is void. A third party who contracts with a spouse married in community of property is under a duty to make adequate inquiries to determine whether the necessary spousal consent has been obtained; the test is whether the third party 'cannot reasonably know' that consent is lacking, not whether they would not reasonably have known. Where third parties are close relatives of the contracting spouse and aware that the other spouse has long occupied the property, they cannot claim ignorance of the marriage or the need for consent.

The court noted that the Registrar of Deeds was not at fault, as the deceased had falsely declared he was unmarried and the applicant's name did not appear on the title deed. The court discussed various academic criticisms of the Act, including Professor N Zaal's criticism that section 15 does not afford sufficient protection to the non-contracting spouse, and Professor Steyn's argument that third parties are duty-bound to investigate whether spousal consent has been obtained. The court also observed that a spouse who wishes to enter into a transaction without the other spouse's consent may apply to court for leave under section 16(1) of the Act, which the deceased did not do.

This case is significant for its interpretation of section 15(9)(a) of the Matrimonial Property Act 88 of 1984, clarifying that third parties contracting with spouses married in community of property bear an active duty to investigate whether necessary spousal consent has been obtained. It endorses the academic view that the phrase 'cannot reasonably know' imposes a duty of inquiry, rejecting a passive approach. The case also confirms that the remedies available to an aggrieved spouse are not limited to section 15(9)(b) (adjustment upon division of the estate) or section 20 (immediate division), and that a court may set aside a void alienation even where the marriage has not been dissolved. It further illustrates the intersection between matrimonial property law and unjustified enrichment where a void transaction results in payment being made.