[20]
In terms of the common law the spouse reclaiming an asset did not have an easy onus to discharge. In Pretorius v Pretorius, 1948 (1) SA 250 (A), Schreiner, J.A. set out what such spouse must prove. At p. 256 the following was stated:
“Before a wife, married in community of property, can attack the exercise by her husband of the powers in dealing with the joint estate,
or her share in it, she would at least have to show, viewing the matter subjectively, that the circumstances rendered it probable
that the husband had her rights in mind when he entered into the impugned transaction and that he appreciated that it would prejudice
those rights; and, viewing the matter objectively, she would at least have to show that the transaction was in all the circumstances
an unreasonable one for the husband to enter into.”
[21]
In common law the onus to prove that the donation was in fraud of the rights of the wife rested throughout on the wife. (See Laws v Laws and Others, 1972 (1) SA 321 (WLD) and Govender v Chetty, 1982 (3) SA 1078 (CPD) ).
[22]
Although the issue as to who carried the onus was in dispute in the Court a quo, Mr. Barnard, correctly in my opinion, accepted that the onus was on the appellants to bring their application within the ambit of
sec. 7(1)(j). He submitted that in order to successfully impugn the transaction between the deceased and the second respondent they
had to establish the following:
1.
That the impugned transaction was concluded without her consent;
2.
That the transaction, in essence, and despite any simulated appearance, was a donation or an
alienation without value; and
3.
The transaction would probably unreasonably prejudice appellant’s interests in the joint
estate.
[23]
I have no problem with this submission made by Counsel except to add that in order to determine whether the transaction would probably
unreasonably prejudice the appellant’s interests in the joint estate the Court must apply the provisions of subsection (6)
of section 7.
[24]
Mr. Barnard criticised the Judge a quo and submitted that he applied the common law rules and required the appellants to prove fraud in order to impugn the transaction.
In my opinion the Court did no more than to state the common law in its endeavour to determine who carried the onus, The finding
of the Court that the appellants carried that onus was correct.
[25]
Although this concession was made by Counsel he also argued that a transaction concluded without the consent of one of the spouses
is generally a nullity and that the innocent spouse would always be entitled to seek a declaratory order to such effect.
[26]
Support for the contention that a donation without value can be void is to be found in the Bopape – case, supra, (A case which we were not referred to by Counsel). In that case the aggrieved spouse reclaimed payments made to or on behalf of a woman with which the second plaintiff, her husband,
had an illicit relationship. In the summons the first plaintiff alleged that the second plaintiff, “without the consent of
the first plaintiff and contrary to the provisions of sec. 15(3)(c) of the Matrimonial Property Act 88 of 1984,” (my emphasis) donated moneys to the defendant. The Court found for the plaintiffs and rejected an argument that an aggrieved spouse’s
remedy was limited to an adjustment in terms of sec. 15(9)(b) of that Act. The Court found that in order to accomplish a lawful donation
without value the consent of both spouses was required. When such consent is absent the donation is unlawful and consequently void.
[27]
I agree with the finding in the Bopape – case, supra, that a spouse is not limited to the remedies set out in our sec. 8 of the Act, (sec. 15(9)(b) of the South African Act) which allows
for an adjustment of the joint estate in favour of the innocent spouse. However, the case does not assist Counsel because before
it can be said that a donation or alienation without value is void it must be brought within the ambit of the Act, in this instance
sec. 7(1)(j) read with subsec. (6). It follows therefore that an applicant relying on these provisions of the Act must establish
that the donation was without consent and without value and that it does or probably will unreasonably prejudice his or her interest
in the joint estate. Whether such prejudice exists the Court will have regard to the provisions set out in sec. 7(6) of the Act.
[28]
The issue before the Court a quo, and also before this Court, is whether the appellants made the necessary allegations to bring their application within the ambit
of the Act. To determine this issue the question is whether the Court is limited to the founding affidavit of the appellant, as was
submitted by Mr. Schickerling, or whether it should also consider the answering affidavit of the second respondent and the replying
affidavit of the first appellant as seemingly argued by Mr. Barnard.
[29]
In a long line of cases the Courts have stated as a general rule that an applicant in motion proceedings must set out his cause of
action and supporting evidence in his founding affidavit. It is only in exceptional circumstances that the Court will allow an applicant
to supplement its allegations in a replying affidavit in order to establish its case. How the Court should approach this issue was
set out in the case of Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others, 1974 (4) SA 362 (T). At p. 369 the following was stated by the learned Judge:
“It lies, of course, in the discretion of the Court in each particular case to decide whether the applicant’s founding affidavit
contains sufficient allegations for the establishment of his case. Courts do not normally countenance a mere skeleton of a case in
the founding affidavit, which skeleton is then sought to be covered in flesh in the replying affidavit."
[30]
In the case of Bowman NO v De Souza Roldao, 1988 (4) SA 326 (TPD), Kirk-Cohen, J, referring to various other cases, summed up the position as follows:
“This type of objection must be considered on the basis of an exception to a declaration or a combined summons. The relevant considerations
are:
(a)
the founding affidavit alone is to be taken into account;
(b)
the allegations in the founding affidavit must be accepted as established facts;
(c)
are these allegations, if proved, sufficient to warrant a finding in favour of the applicant?”
(see p. 327 I –J).
[31]
To the list of cases considered by Kirk-Cohen, J, can be added Bayat and Others v Hansa and Another, 1955 (3) SA 547 (N) at 553D; Pearson v Magrep Investments (Pty)Ltd and Others, 1975 (1) SA 186 (D) at 187C – 188A and Ladychin Investments v South African National Roads Agency, 2001 (3) SA 344 at 359B – I.
[32]
Some criticism was expressed in the case of Valentino Globe BV v Phillips and Another, [1998] ZASCA 43; 1998 (3) SA 775 (SCA) against equating the procedure set out in the cases above with that of an exception. Harms, JA, expressed himself as follows
on p779I -780A, namely –
“It seems to me to be wrong to permit the use of this procedure in a Court of first instance where there is no real conflict of fact on the papers, as is the case here. But having used the procedure unsuccessfully at that level, does not mean that an appellant is entitled to use it again on appeal.
In any event, it seems to me that the analogy with the exception procedure may be inappropriate and that the comparison should rather
be with an application for absolution from the instance in a trial action. Having lost an application for absolution, a defendant
cannot thereafter lead evidence and on appeal argue that absolution should have been granted at the end of the plaintiff’s
case.” (my emphasis).
I agree with Nicholson, J, in the Ladychin – case, supra, at p 359 I – J, that the Valentino – case did not alter the situation as set out in the cases above. In the present instance the point taken that the applicant
did not establish a prima facie cause of action was successful and it is that point which was appealed against and which this Court must decide. The issue did not
become moot as would be the case where an application for absolution at a trial was dismissed and further evidence was then led.
[34]
In the present instance there are no exceptional circumstances why the Court should have regard to any of the other affidavits and
it was also not argued that such circumstances were present.
[35]
In the result I have come to the conclusion that this Court should apply the general rule set out above and should consider, with
reference to the founding affidavit only, whether the appellants have made out a prima facie cause of action.
[36]
The relevant allegations on which the appellants based their case for the relief set out in the Notice of Motion were set out in the
judgment of the Court a quo. I agree that this setting out correctly reflected the relevant allegations made by the appellant. These are the following:
1.
That the first appellant was married to the late Lewis Christoffel Stipp on 11 November 1981 in community of property and at the time
of his death on 9 December 2005 this marriage still subsisted; (Rec. p18, par 7 and 8).
2.
At the time of their marriage in 1981 the deceased had no assets, was a salaried worker for SWACO, from where he retired in 1989,
when he started the business “Shade Centre” the capital of which she provided;
(Rec. p18-19, par 9).
3.
As time progressed the deceased expanded the business into a profitable undertaking and by the time of his death it had branched off
to include several other businesses. Those businesses are the subject of prayer 2 of the Notice of Motion and it is alleged that
these businesses all formed part of the joint estate of the first appellant and the deceased. (Rec. p1, par 2 and p19, par 9.3and
9.4).
4.
After the death of the deceased the appellant attended at his offices where she discovered the deed of sale and a lease agreement
in question. (Rec. p20, par 13.1 and 13.2).
5.
She never knew of the agreements, did not consent thereto as was necessary and as such the purported sale of the business for only
N$ 10.00 was an alienation of an asset of the joint estate without value as contemplated by section 7(1)(j) of the Married Persons
Equality Act, l996, and is null and void. (Rec. p13, par. 14.2 and par. 15).
6.
She alleged that the second respondent could not claim that he did not know that she and the deceased were married in community of
property and that her consent was necessary before the deceased could sell any of the assets of the common estate. Even if the second
respondent did not know this it was his duty to establish what the true position was. He, like the deceased, kept quiet about the
transaction and she was never told about it. She submitted that the second respondent could not claim to be an innocent party in
the sale of the business to him by the deceased. (Rec. par 16.1, 16.2 and 16.3).
[37]
I did not understand Mr. Barnard to disagree with this summing up of the allegations contained in the founding affidavit of the appellant
but he submitted that the Court a quo failed to have any regard to the well established principle that a case could be established by reference to so-called “secondary
facts”. (See in this regard S v Basson [2004] ZACC 13; 2005 (1) SA 171 (CC) at p 197).
[38]
In this regard Counsel submitted that there was direct evidence that the transaction was an alienation without consent and value and
that based on this primary fact that it could be inferred that the appellant’s interests in the joint estate would be unreasonably
prejudiced.
[39]
In my opinion this “secondary fact” is itself no more than a conclusion, and not a fact, and, in my opinion, lacks the
necessary substrata to assist the appellant to establish a proper cause of action based on the provisions of section 7(1)(j) of the
Act. In my opinion the allegations set out by the appellant in her founding affidavit fell far short from establishing a prima facie cause of action.
[40]
Notwithstanding the provisions of sec. 7(6) which requires of the Court to take into consideration various factors in order to determine
whether a donation or alienation will unreasonably prejudice the interest of the other spouse in the joint estate the allegations
contained in the founding affidavit of the appellant is almost totally lacking the setting out of relevant factors which would assist
a Court to make such a determination. The founding affidavit does not even contain an allegation that the donation or alienation
does or will probably unreasonably prejudice the appellant’s interest in the joint estate. The reason for this is not difficult
to find. Summing up the submissions made by Counsel in the Court a quo the learned Judge pointed out that it was the contention of the appellants that the onus to prove that a donation would not prejudicially
affect the joint estate was on the party who received the donation. This contention did not find favour with the Court and in this
Court Counsel for the appellants conceded that the onus was on the appellant to prove that the donation was without value and consent
and consequently did have or probably would unreasonably prejudice her interest in the joint estate.
[41]
A reading of the subsection further makes it clear in my opinion that a donation without consent and without value is generally not
per se void. In determining whether prejudice will or does result the Court does not only perform an exercise in accounting and find for
the person in whose favour a credit balance comes out. The Court would, depending on the circumstances of each case, also be called
upon to consider indeterminable issues such as the standing of the parties in their community and their standard of living and will
have to consider the reasonableness or otherwise of the donation or alienation at the hand of these factors.
[42]
It does not follow that the Court would in each instance tick off a shopping list of factors before it could find one way or the other.
What is necessary is that the Court must be persuaded that the donation or alienation does or will probably unreasonably prejudice
the interest of the other spouse in the joint estate.
[43]
In most instances the value of the donation or alienation would be relevant and in certain instances would be of great importance
to enable the Court to come to a conclusion.
[44]
In the present instance no attempt was made to place a value on the business claimed by the appellants other than to state that it
was profitable. To what extent this is so is uncertain. Although one has a certain understanding that the appellant, not having control
of the business, may find it difficult to have access to the books of account or balance statements of the CC. However no attempt
was made by the appellant to avail herself of the provisions of the Rules of the High Court, and more particularly Rule 35(12), which
was designed to assist parties in circumstances such as these.
[45]
Apart from the fact that the value of the business is relevant and important for the Court to consider the possibility of prejudice
to the interest of the appellant in the joint estate there is in this particular instance a possibility that value, or at least some
value, was given.
[46]
In terms of the agreement of sale between the deceased and the second respondent the sale consisted of the trading name, goodwill,
raw materials and three second hand motor vehicles. These items were sold for a token sum of N$10,00. However, the sale agreement
made reference to a mutual agreement between the parties, namely that the second respondent would hire the industrial premises at
45 Copper Street, Prosperita (from where the businesses were carried on) as well as the plant and equipment from NABAHARI PROPERTIES
CC of which the deceased was the only member.
[47]
This mutual agreement was given effect to when a written agreement was signed on the 23rd July 2003 whereby the second respondent undertook to pay a rental of N$12,000. 00 per month to NABAHARI PROPERTIES CC, the interest
in which was an asset of the joint estate. The contract was for a year and renewable at the option of the second respondent on a
yearly basis. The fact that this agreement was incorporated by reference in the sale agreement at least created the possibility that
the two agreements were intended to compliment each other and that they formed an integral part of the transaction between the deceased
and the second respondent.
[48]
The agreements provided an income for an asset of the joint estate from a source outside the joint estate. In terms of these agreements
NABAHARI PROPERTIES CC received monthly payments of N$12 000, 00 which, over the years must amount to a substantial sum of money.
No attempt was made to deal with this issue although it may have an important result for the outcome of the case.
[49]
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