I know many people think it is general knowledge that when parties are married in community of property, both parties have to sign agreements and legal documentation when immovable property is sold. 

This limits the parties to enter into agreements if one of them do not want to co-sign and protect the joint estate. 

Taking this into consideration imagine the shock and dismay when a person, married in community of property realises that their spouse has sold their immovable property, for instance their house.

They realise transfer has already been finalised into the purchasers’ names, without the one party’s consent or knowledge. This unfortunately happens on a regular basis and is a very serious concern due to the fact that the party that signed all the documentation without the knowledge of his or her spouse confirmed under oath that they are not married in community of property, well if we are frank they lied under oath.

Sections 15(2) and 14(3) of the Matrimonial Property Act of 1984 confirm the legal position as indicated above : a spouse married in community of property shall not without the written consent of the other spouse alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate.

In December of 2020 the Supreme Court of Appeal had to attend to a similar matter. 

Vukeya v Ntshane and Others (SCA) which is an unreported case.

Short summary as follows of the matter :    Mrs Ntshane was an elderly lady who moved to another province, leaving her husband who is now deceased in their home. Mr Tshane passed away and his wife was appointed as the executor of the estate and only at that stage became aware that her deceased husband had sold their home without her consent to the appellant in the matter.

Mrs Ntshane as executor made an application to the High Court to have the transfer cancelled on the basis that she did not consent in writing to the sale or transfer of the immovable property as required by law.  The High Court ruled in her favour but the matter was appealed by the purchaser as the purchaser was bona fide due to the fact that the person had no knowledge of Mr Nsthane’s marital status.

There are other matters to refer to as well with similar facts but the matter of Visser v Hull and Others 2010(1) SA 521 had another outcome due to the fact that the purchaser and sellers were blood relatives and the court was of the opinion that the purchaser ought to have known that the consent of the other spouse was required for the sale of the immovable property to proceed.

In both these cases and also other matters the courts all agreed that the most important factor to take into consideration is whether the purchaser could have reasonably known that the seller was married and specifically in community of property and the transaction required the spouse’s written consent to sell and transfer immovable property.

Take note that the test is: the purchaser cannot reasonably know.  This is in a situation where the purchaser and seller do not know each other for instance, but if they suspect a possibility then they should do a reasonable investigation to ensure if written consent is required.

The question now arises that how did these transfers proceed as the Registrar of Deeds should have picked up that the Seller was married in community of property and the transactions should have been rejected?

Referring to these 2 specific matters the database of the Department of Home Affairs was not updated and incorrectly reflected both these parties to be unmarried.  This resulted in a dishonest Seller alienating a property without the consent as required by law. 

The last line of “defence” if I can refer to it, being the records of the Department of Home Affairs is unfortunately not a practical or reliable solution to the problem.  That is also why I know our firm’s conveyancing department takes a very serious stand as to documentation to be provided during signing of the transfer documentation of both the seller and the purchaser.  This enables us to examine the marital status of the parties in an attempt to best in sure that the information is correct and all necessary consents have been obtained. 

If the Seller indicates he or she is unmarried, no marriage certificate is provided and the marital status recorded on the department’s system also indicates unmarried then there is a possibility that the incorrect transfer can still proceed. Despite conveyancers duly adhering to all possible safety precautions a matter like this can still slip through.

In this instance the spouse that was supposed to give written consent, the question now raised is what options are available for the non-consenting spouse and or purchaser in a situation like this.

The non-consenting spouse will have a claim against their spouse and the purchaser, should the purchaser be in the position that they knew that the spouse’s consent was required and not obtained.

If the purchaser can show to the court that they were not in a position to reasonably have knowledge of a marriage in community of property, then the agreement and transfer is valid and enforceable and cannot be deregistered as the purchaser acted bona fide.

When the purchaser fails to prove and be discharged from their burden of proof, then the agreement is void and an order that the transfer should be undone and restored to the previous names.  There is a possible remedy for the purchaser to claim damage.

The non-consenting spouse also has remedies of which one can be claim for fraudulent concealment by the other spouse, but this and the other remedies are only available if the result of the action has caused damage to the joint estate.

We as legal practitioners should stay vigilant and firm with our request for confirming documents when attending to transfers to avoid this from happening even less.