Buyer Beware: In South African property law, the registered owner and the legal owner of a property are not always the same person. This critical distinction can expose property buyers to major legal and financial risk—especially in marriages in community of property.
As you may have gathered, this article looks at the case of Vukeya v Ntshane and Others (Case No. 518/2019) [2020] ZASCA 167 (11 December 2020) and what it says on selling immovable property in a marriage in community of property without spousal consent, and how Section 15(9)(a) of the Matrimonial Property Act 88 of 1984 was interpreted by the Supreme Court of Appeal.
This case was an Appeal against the judgment which granted the following Order against the Appellant:
The Appeal is with the leave of the High Court.
The facts of the matter were stated in the Founding Affidavit of the first respondent, Mrs Shalate Nelly Ntshane.
The first respondent and Mr Wilson Mkhatshane Ntshane, (her deceased husband in community of property) were married in community of property on 13 May 1980.
They lived together until in their old age, the first respondent moved to Potgietersrus in Limpopo.
The deceased however, remained behind on the property until he passed away.
The first respondent was then appointed as the executrix of the deceased estate, then learning that the deceased had sold the property to the Appellant on 5 April 2009 without her knowledge or consent as required by s 15(2)(a) of the Matrimonial Property Act 88 of 1984.
As a result, the first respondent launched proceedings against the Appellant in the High Court seeking the relief set out in para 1 of the judgment.
If you didn’t see that coming, you didn’t read properly!
In the Appellant’s Answering Affidavit, he stated that when he purchased the property from the deceased, he was staying alone in the said property and he also confirmed to me that he was not married, further signing the deed of sale and also the transfer documents alone as unmarried. These were annexed to the Answering Affidavit.
The Appellant further contested that he purchased the property bona fide as he had no knowledge that the deceased was married to the first respondent at the time of the sale and transfer of the property to him by the deceased.
Before the High Court, the first respondent responded that she was unaware of the sale and transfer until her appointment as executrix.
She therefore argued that the Appellant was duty bound to have made reasonable enquiries as provided in s 15 of the MPA to establish whether the deceased was married, if so, in terms of which marital regime, and if it was in community of property, whether she had consented to the sale and transfer of the property.
Despite the Appellant’s proof that he did not know that the deceased was married and that the deceased had not portrayed himself as married, the High Court found in favour of the first respondent.
It was found that the registration of a deed of transfer did not itself pass ownership of the property unless there was a real agreement, with the transferring party having the intention to lose his ownership and the receiving party having the intention to acquire ownership.
This, together with the definition of ‘owner’, as per section 102 of the Deeds Registries Act 47 of 1937, as “the person registered as the owner or holder thereof” , saw the High Court conclude that the registered owner and legal owner may not always be the same person. Indeed, ownership passes with registration alongside a valid real agreement, and in this instance the dispute was whether or not the lack of consent invalidated the real agreement.
Consequently, it was found that the real agreement was defective, with the first respondent, as co-owner, not having given consent, and therefore not having formed the requisite intention in the real agreement to transfer the property to the Appellant. On that basis, the transfer of property was null and void. It should be noted that under normal circumstances, the transaction is voidable unless protected by s 15(9)(a) of the Matrimonial Property Act.
Firstly, the Application of s 15(9)(a) of the MPA had not been considered at all by the High Court.
Secondly, if the approach taken by the High Court was correct, s 15(9)(a) would be rendered purposeless.
Section 15 of the MPA, in particular s 15(9)(a), was therefore considered to be a main issue by the SCA.
This states that a spouse shall not without the written consent of the other spouse, alienate, that is, sell, any immovable property forming part of the joint estate or indeed enter into any contract for the alienation of the immovable property forming part of the joint estate.
This goes on to include the effects and assets of the home.
As a result, when a spouse enters into a transaction like those listed above, and the purchaser does not know and cannot reasonably know that the transaction is being entered into contrary to section15, it is deemed that the transaction concerned has been entered into with the consent required in terms of the said subsection (2) or (3), or while the power concerned of the spouse has not been suspended, as the case may be;
The Court therefore found that it was not in dispute that the first respondent never consented to the sale, but whether or not the Appellant was protected as a third party purchaser by s 15(9)(a).
This would determine if the sale was void or valid.
The SCA noted that it had recently in Marais NO and Another v Maposa and Others, dealt with the consequences of the failure to acquire consent in terms of s 15(3) of the MPA.
In this regard this Court stated that the effect of s 15 may be summarized as follows.
“First, as a general rule, a spouse married in community of property “may perform any juristic act in connection with the joint estate without the consent of the other spouse”.
Secondly, there are exceptions to the general rule.
In terms of ss 15(2) and (3), a spouse “shall not” enter into any of the transactions listed in these subsections without the consent of the other spouse.
Subject to what is said about the effect of s 15(9)(a), if a spouse does so, the transaction is unlawful, and is void and unenforceable.
This, it seems to me, flows from what Innes CJ, in Schierhout v Minister of Justice, called a “fundamental principle of our law”, namely, that “a thing done contrary to the direct prohibition of the law is void and of no effect”.
Thirdly, if a listed transaction is entered into without the consent of the non-contracting spouse, that transaction will nonetheless be valid and enforceable if the third party did not know and could not reasonably have known of the lack of consent.”
The Court therefore came to the conclusion that though the consent requirement had the purpose of providing protection to the other spouse, s 15(9)(a)’s provision that allows for the transaction to be valid, is intended to protect the bona fide third party who in this instance, bought the property.
It is still argued as to whether the legislation has appropriately balanced these protections.
It was noted that reasonableness in the phrase “cannot reasonably know”, relating to the third party reasonably knowing of the marriage and marital regime, set an objective standard, namely that it looked at what a reasonable person would do in the circumstances and the conclusion that the reasonable person would draw, suggesting soe sort of reasonable enquiry.
“a duty is cast on a party seeking to rely on the deemed consent provision of s 15(9)(a) to make the enquiries that a reasonable person would make in the circumstances as to whether the other contracting party is married, if so, in terms of which marriage regime, whether the consent of the non-contracting spouse is required and, if so, whether it has been given.
Anything less than this duty of enquiry, carried out to the standard of the reasonable person, would render s 15(9)(a) a dead letter. It would not protect innocent spouses from the maladministration of the joint estate and would undermine the Matrimonial Property Act’s purpose of promoting equality in marriages in community of property.’ This approach and the test to apply in these circumstances, which I approve, was most recently endorsed by this Court in Mulaudzi v Mudau and Others.”
Returning to the matter at hand, it was clear the first respondent had not consented and as a result, the sale was invalid.
In the Appellant’s favour, it was accepted that the Appellant was staying alone and stated he was unmarried, before signing two official documents that portrayed the same, leaving the Appellant unaware that the deceased was married to the first respondent.
This supports the Appellant in their statement that he was unaware that the deceased was married and could not reasonably have known otherwise. Further, in the current circumstances, he could not reasonably have been expected to make further enquiries as suggested by the first respondent, having the two documents.
The Court found that the Appellant was entitled to consider those documents as proof, and not had need to enquire further. Further, Counsel for the first respondent could not recommend a logical and reasonable enquiry that could be made in ascertaining the deceased’s marital status.
The Court concluded that the Appellant did not know that the deceased was married and could not reasonably have known this, and there was thus deemed consent.
Consequently, an Order was granted that the Appeal is upheld with costs.
Ultimately, should you wish to sell a property, and you are married in community of property, get your spouse’s consent. If they withhold it unreasonably, you may make an Application in terms of section 16 of the Matrimonial Property Act for consent to be granted.
If purchasing a property, you have to make the relevant enquiries, and prove that you did not know of a marriage and the relevant marital regime, otherwise, property purchases are not going to work for you.
Last, while conveyancers are expected to verify marital status through ID and marriage certificates, which ties in with the duty of reasonable enquiry, they can only do so much, and it would be recommended that disputing parties have the relevant proof they require.
© 2025 Martin Vermaak Attorneys. All rights reserved.
Terms of Use Privacy Policy
