South Africa: North West High Court, Mafikeng

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Modisane v Kgwatisi (583/02) [2003] ZANWHC 27 (6 June 2003)

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LEEUW J:

1. The Applicant seeks the following order against the Respondent:

“1 Declaring Respondent indebted under case number M74/1993 to myself for payment of the amount of R26 953,20 plus interest thereon at 15,5% per annum from 16 July 2001;

2. Declaring Respondent indebted under case number 11439/1993 to myself for payment of the amount of R652 785,21 less the nett proceeds from the sale of the Mercedes Benz motor vehicle, plus interest on R604 919,71 from 16 July 2001 to date of payment;

3. Costs of suit;”

2. The Respondent was married to Letshwiti Abel Kgwatisi (“Kgwatisi”) on the 25^th August 1992 in Community of Property and they divorced on the 16^th July 2002. According to the Deed of Settlement which was incorporated to the Decree of Divorce, the following clauses inter alia, appear under the heading providing for Movable Property:

“  Plaintiff and Defendant confirm that the Mercedes Benz motor vehicle with registration number 999TKK NW belongs to the Plaintiff and is awarded to her as such;

 The Parties confirm that the Plaintiff and Defendant have no movable assets of any value in their estate at the time of the divorce;

 The Plaintiff and Defendant agree that each party will take full responsibility for his or her own accounts outstanding as at the date of divorce.”

3. According to the Applicant, he obtained an Anton Pillar Order in this Honourable Court on the 13^th December 1993 against Kgwatisi and a “venture” under his management namely “Fame Casting Artist Agency (“Agency”)”, wherein they were ordered to pay costs which were taxed in an amount of R29 390.14 (Case No M74/1993).

3. There was also a judgment granted against Kgwatisi for R636 466.91 plus interest at 11% per annum from 1^st December 1992 and costs in favour of the Applicant (Case No 11439/1993).

3. A writ of execution was issued against Kgwatisi, the Agency and the Respondent by virtue of the fact that she was married in Community of Property to Kgwatisi.

3. The Mercedes Benz motor vehicle referred to in the Deed of Settlement supra, was attached and sold in execution on the 8^th September 2001.

3. Subsequent to the divorce, Kgwatisi made arrangements with the Applicant to settle the debt of R636 390,14, which has escalated in excess of one million rand, in instalments of R1 500,00 per month which, according to the Applicant, he reluctantly accepted in view of the fact that it is inadequate. The debt of R29 390,14 has also remained unsatisfied.

3. Because of these unsatisfactory circumstances the Applicant wrote a letter of demand to the Respondent, through his attorneys, in an effort to recoup 50% of the outstanding amounts in both judgments debts. The Respondent denies liability for the debts and avers that because of the fact that the attachment and the sale in execution took place after her divorce from Kgwatisi, the writ of execution was therefore invalid against her.

3. She further took the following points in limine:

(i) That in terms of the Deed of Settlement between herself and Kgwatisi which was incorporated to the Decree of Divorce, “each party would take full responsibility for his or her own accounts outstanding as at the date of the divorce”; that Kgwatisi ought to have been joined as a party to the application; and

(ii) That the claim is based on a judgment debt and interest which was granted against Kgwatisi on the 1^st December 1992, and which Claim has prescribed against her in terms of section 11 of the Prescription Act, 68 of 1969 in that no summons was issued against her within three years after the date upon which the Claim arose;

3. She further alleges in the Answering Affidavit that:

(a) In the Application against Kgwatisi and the Agency, wherein she was also joined as a Third Respondent, this Honourable Court dismissed the Claim against her and that she was not held liable for the amount claimed, that is the R26 953,20 for costs; that the Warrant of Execution was to be levied against Kgwatisi as the judgment debtor and not against her, as the spouse of the judgment debtor; the vehicle was sold for an amount of approximately R55 000,00 whereas it was valued at approximately R110 000,00. She accordingly requests this Court to declare the Warrant of Execution invalid and also claims damages for the sale in execution of the motor vehicle;

(b) She further denies and disputes the fact that she is liable for 50% of the judgment debts mentioned above; and

(c) Avers that because she was not involved in Kgwatisi’s trade or business, it was prudent for Kgwatisi to obtain her written consent in accordance with section 17 (1) of the Matrimonial Property Act 88 of 1984 (The Act), to defend the abovementioned proceedings which were instituted against him; that because of the fact that Kgwatisi failed to obtain such consent, it is unconstitutional to make her liable for 50% of his judgment debts; consequently she requests this Court to find that section 17 (1) (c) of the Act is unconstitutional alternatively that the matter be referred to the Constitutional Court.

Non-Joinder of Respondent’s husband:

3. Section 17(5) of the Matrimonial Property Act provides that:

“Where a debt is recoverable from the joint estate, the spouse who incurred the debt or both spouses jointly may be sued therefor, and where a debt has been incurred for necessaries for the joint household, the spouses may be sued jointly or severally therefor.”

3. The Applicant therefore had a choice, during the subsistence of the marriage, of either suing the spouse who incurred the debt (in this case Kgwatisi) or both Kgwatisi and the Respondent jointly and severally. See B P Southern Africa (Pty) Ltd v Viljoen en ’n Ander 2002 (3) SA 630 (O) at 637 E - G and Zake v Nedcor Bank Ltd and Another 1999 (3) SA 767 (SE).

3. Community of Property means community of assets and liabilities. See De Wet, NO v Jurgens 1970 (3) SA 38 at 46 G - H. A judgment against one spouse, in a marriage in community, is effectively against both spouses because the debt incurred generally accrues to both of them. See Du Plessis v Pienaar NO and Others 2003 (1) SA 671 (SCA) at 674 I - J.

3. Community of Property between the spouses comes to an end at the dissolution of the marriage. See Hay v Hay 1910 NPD 90 - 91. But a Creditor may proceed against the husband for the recovery of the full amount for a debt incurred during the subsistence of the marriage in community or against the wife for half the debt. See Maury (Edms) h/a Franelle Gordyn Boutique v Erasmus 1988 (2) SA 314 (O), Wright v Westelike Provinsie Kelders Bpk 2001 (4) SA 1165 (C) at 1177 F; B P Southern Africa (Pty) Ltd v Viljoen en ’n Ander supra and Hlahlo The South African Law of Husband and Wife (5^th Edition) at 183 to 184, and Nedbank Limited v Van Zyl 1990 (2) SA 479 (A) at 476 J - 477.

3. The agreement between Kgwatisi and the Respondent wherein each agreed to “take full responsibility for his or her own accounts outstanding as at the date of divorce ,” is between the two parties to the marriage, and should not adversely affect the rights of Creditors. “Debts are not incurred by a person’s estate - the estate is merely the source from which the debt is recovered. The debt is incurred, however, by the person who is the debtor. The insolvent debtors are both the Appellant and her husband, for when spouses are married to one another in community of property debts incurred by one spouse generally accrue to them both..................................

[5] Once it is accepted that debts are incurred by persons, rather than by their estates, and that when the marriage is in community of property both spouses are generally liable for payment of the debts that are incurred by one of them, it follows that a creditor may look to the estates of both the debtors for recovery of the debt. (My emphasis) In the case of a spouse such as the Appellant that estate comprises not only her undivided interest in the joint estate but also her separate property that falls outside the joint estate.” Per Nugent JA in Du Plessis v Pienaar NO and Others supra at 674 J - 675 A - E and authorities therein referred. Nugent JA goes further to state that “The fact that some of her property is separately owned is relevant to the manner in which the property may be dealt with by the spouses inter se and their rights upon dissolution of the marriage but does not affect the ordinary right of a creditor to look to all the property of the debtor in satisfaction of a debt.” See p 675 F.

3. Mr Viljoen has correctly submitted that the Deed of Settlement creates a contractual right in personam for the Respondent against Kgwatisi to reclaim any amounts claimed from her by Creditors in respect of Kgwatisi’s debts. See also Reynders v Rand Bank Bpk 1978 (2) SA 630 (T) at 634 D.

3. It follows therefore that there is no merit in the Respondent’s submission that Kgwatisi ought to have been joined as a party to these proceeding and also that she cannot be held liable for her half share of the judgment debts incurred during the subsistence of their marriage, which debts are due and payable to the Applicant as the Judgement Creditor.

Has the debt prescribed against the Respondent?

3. In view of the reasons mentioned above, it is evident that the Respondent and her husband were joint debtors to the Applicant, and thus she was also a judgment debtor liable for the debts outstanding at the time of the dissolution of the marriage. See Du Plessis v Pienaar NO & Others supra and Wright v Westelike Provinsie Kelders Bpk supra at 1176 E. In terms of section 11 (a) (ii) of the Prescription Act No 68 of 1969, a judgment debt prescribes after 30 years.

Is section 17 (1) (c) of the Matrimonial Property Act unconstitutional?

3. It is hard to comprehend the argument raised on behalf of the Respondent with regard to the unconstitutionality of this section. There are no valid facts or law referred to in the Answering Affidavit to substantiate the bald allegation of the unconstitutionality of this section. It is also not clear as to how the consent of the Respondent allowing Kgwatisi to defend the action brought against him by the Applicant, impacts upon the constitutionality or not of section 17 (1) (c) of the Act.

3. The Respondent did not even follow the correct procedure in seeking this order in that:

(a) Rule 10 A of the Uniform Rules of Court requires the joinder of the relevant executive authority responsible for the administration of the Act; and

(b) Respondent ought to have served the Registrar of this Court with the appropriate notice of her Constitutional challenge in compliance with Rule 16 of the Uniform Rules of Court.

3. Furthermore, I am unable to entertain the Respondent’s request of declaring the Warrant of Execution, and consequent damages for the Sale in Execution of the motor vehicle invalid in view of the fact that there is no Counter-Application which was brought by the Respondent against the Applicant in these proceedings.

3. I accordingly dismiss the points in limine raised by the Respondent in this application and make the following order in favour of the Applicant:

“(a) Respondent is indebted under Case Number M74/1993 to the Applicant for an amount of R26 953-30 plus interest thereon at 15,5% per annum from 16 July 2001; and

(b) Respondent is indebted under Case Number 11439/1993 to the Applicant for payment of the amount of R652 785-21 of the Judgment Debt plus interest thereon at 15.5% from 16 July 2001. The nett proceeds from the sale of the Mercedes Benz motor vehicle Registration Number 999 TKK NW sold in Execution on the 8^th September 2001, shall be taken into consideration in calculating the Judgment Debt amount outstanding.

(c) Respondent is ordered to pay the costs of the Application.”

M M LEEUW

JUDGE OF THE HIGH COURT

APPLICANT’S ATTORNEYS: NIENABER & WISSING

RESPONDENT’S ATTORNEYS : JOHN VAN ONSELEN INC