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Case no 673/87 WHN

ISTVAN DE UJFALUSSY Appellant

and

ILONA DE UJFALUSSY Respondent

JOUBERT, JA.
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the matter between:

ISTVAN DE UJFALUSSY Appellant

and

ILONA DE UJFALUSSY Respondent

Coram: JOUBERT, HOEXTER, VAN HEERDEN, NESTADT

et KUMLEBEN JJ.A Heard: 15 February 1989 Delivered: 16 March 1989

JUDGMENT JOUBERT, JA:

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This is an appeal against a decision of WILLIAMSON J in the Cape of Good Hope Provincial Division which is reported in 1988(2) SA 540 (C). The appeal is brought with the leave of the Court a quo. The parties to the appeal were married to each other in Sweden according to the laws of that country and their marriage still subsists. It is common cause that their marital regime is governed by community of property. I shall refer individually to the appellant as "the husband" and to the respondent as "the wife".
The marriage relationship between the parties was apparently not a very happy one since the wife in an action against her husband in the Cape of Good Hope Provincial Division was granted on 21 August 1975 a decree of judicial separation a mensa et thoro. A 'Consent Paper' in which they regulated matters such as maintenance and their property rights was simultaneously made an order of Court.

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The preamble to the 'Consent Paper' expressly states that they desire it to be incorporated in such decree. From the provisions relating to their property rights it is clear that they intended inter alia to effect a division of the joint estate between them (boedelscheiding) and that each party was thenceforth to be in control of his or her own estate, i.e. by ousting the marital power of the husband over the wife and her separate estate. (Compare Clause 5.) Clause 2(a) provides for a division of the movable assets of the joint estate. The only immovable asset in the joint estate was Berg-en-Dal, sitUated in Somerset West, Cape Province, and registered by Deed of Transfer T2131/63 in the name of the husband. The relevant portions of Clause 2 which relate to this immovable asset provide as follows:

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"(b) In respect of the undivided one-half share of the immovable property situate and known as Berg-en-Dal and registered in the name of Defendant, the parties hereto agree as follows:-

(i) Plaintiff shall during her lifetime be entitled, free of any payment to Defendant whatsoever, to the sole and exclusive use of Berg-en-Dal for whatsoever purposes she in her sole and absolute discretion may elect to utilise same.

(ii) In consideration of the aforegoing, Plaintiff hereby indemnifies Defendant and holds him harmless against all or any proprietary charges of whatsoever nature or description which might be levied against Berg-en-Dal including any outstanding claims

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against Berg-en-Dal up to and including date hereof as also any expenditure which might hereafter be incurred by Plaintiff in respect of farming operations and/or any other operations relating to Berg-en-Dal. Moreover Plaintiff undertakes and agrees to effect payment of all or any instalments falling due in respect of the mortgage bond registered against Berg-en-Dal as also to effect payment of any insurance premiums payable in respect of the dwelling house erected thereon.

(c) (i) Notwithstanding anything to

the contrary hereinbefore contained, Defendant hereby grants to and in favour of Plaintiff or her nominee an option valid until the 31st

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August, 1985, to acquire his aforementioned undivided one-half share in the aforementioned Berg-en-Dal, for a purchase consideration of R60,000-00,payable in cash against registration of transfer from Defendant to and in favour of Plaintiff or her nominee, specially subject to the condition that all or any costs of transfer including transfer duty shall be borne by Plaintiff or her nominee as the case may be, who shall moreover be obliged to discharge such balance as may then be due by Defendant in respect of the mortgage bond registered against the entire immovable property known as Berg-en-Dal.

(ii) Should Plaintiff or her nominee elect to exercise the option

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conferred as aforesaid, 30 days notice of such exercise shall be furnished to Defendant in writing either by personal service on him or alternatively by prepaid registered post despatched together with an acknowledgment card to his then place of residence or employment, at the option of Plaintiff or her nominee.

(d) (i) Should the option conferred

in the preceding sub-paragraph be exercised by Plaintiff or her nominee, then and in such event and against registration of transfer to and in favour of Plaintiff or her nominee, a sum of R30,000-00 shall be paid to Defendant in cash and the balance of R30,000-00 accruing to Defendant shall be deposited

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with an approved financial institution agreed upon between the parties hereto or alternatively invested in a manner mutually agreed upon between the parties, specially subject to the condition that all or any income accruing in respect of the aforestated balance of R30,000-00 shall accrue to Plaintiff in respect of maintenance for herself personally for as long as Defendant is legally liable to maintain Plaintiff."

On 14 June 1985 Abe Swersky & Associates, the wife's attorneys, purported to exercise timeously on her behalf the option conferred on her in terms of Clause 2(c) of the Consent Paper by means of a letter addressed to her husband, the relevant part of which reads as follows:

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"We have been instructed by your wife

to notify you, as we hereby do, that

the option conferred on her in terms of

Clause 2(c)(i) of the Consent Paper

incorporated in the Decree of Judicial

Separation granted by the Supreme Court

of South Africa (Cape of Good Hope Provincial

Division) on the 21st August 1975 is

hereby exercised as at the 30th August

next."

While the attorneys of both parties were making the necessary arrangements to register transfer of Berg-en-Dal in the name of the wife, her husband unilaterally elected, for various reasons, not to proceed with such registration. The wife then applied in the Court a quo for an order compelling her husband to proceed with the transfer. He opposed the application on several grounds. What is germane to the present appeal is his contention in paragraph 2(b) of his

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answering affidavit "that unless Abe Swersky & Associates
at the time of the signature of the letter of the 14th June
1985 addressed to me had a written Power of Attorney from
the Applicant to act in exercising the option, the option
has not been validly exercised". This contention was founded
on the provisions of section 2(1) of the Alienation of Land
Act No 68 of 1981 (date of commencement 19 October 1982)
which reads as follows:

"No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority."

According to section 1(1) of the said Act the word

" 'alienate' in relation to land, means

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sell, exchange or donate, irrespective of whether such sale, exchange or donation is subject to a suspensive or resolutive condition, and 'alienation' has a corresponding meaning."

While the Court a quo accepted that Abe Swersky & Associates were not authorised in writihg to exercise the option as agents on behalf of the wife (p 544 C) it was, however, held that the provisions of section 2(1) of the said Act were not applicable to alienations of land pursuant to an order of Court as was, in the view of WILLIAMSON J, the position in the present matter (p 545 C). The wife's application was accordingly allowed with costs. The husband now appeals to this Court against that decision.

In this Court it was common cause that the wife had not authorised Abe Swersky & Associates in writing to exercise the option on her behalf. Mr Weinkove on behalf

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of the wife, however, contended that the provisions of section 2(1) of the said Act were inapplicable to the present situation inasmuch as, on a proper construction of the relevant provisions of the Consent Paper, the parties entered into an agreement to confer on the wife no more than a right of election to acquire the husband's half-share in Berg-en-Dal against payment by her of R60 000, half of which was to go directly to him while the other half was to be treated in a certain manner specified in the Consent Paper. This contention in effect substitutes "election" for "option" where it occurs in Clause 2(c)(i),(ii) and (d)(i). The soundness of this contention depends on the proper construction of the relevant provisions of the Consent Paper. In construing these provisions I propose to apply the following well-known principles of interpretation of written contracts as enunciated by WESSELS CJ in

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Scottish Union & National Insurance Co Ltd v Native Recruiting

Corporation Ltd, 1934 AD 458 at p 465-466:

"We must gather the intention of the parties from the language of the contract itself, and if that language is clear, we must give effect to what the parties themselves have said; and we must presume that they knew the meaning of the words they used. It has been repeatedly decided in our Courts that in construing every kind of written contract the Court must give effect to the grammatical and ordinary meaning of the words used therein. In ascertaining this meaning, we must give to the words used by the parties their plain, ordinary and popular meaning, unless it appears clearly from the context that both the parties intended them to bear a different meaning. If, therefore, there is no ambiguity in the words of the contract, there is no room for a more reasonable interpretation than the words themselves

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convey. If, however, the ordinary sense of the words necessarily leads to some absurdity or to some repugnance or inconsistency with the rest of the contract, then the Court may modify the words just so much as to avoid that absurdity or inconsistency but no more."

I can find no ambiguity in the language of the provisions in question of the Consent Paper. Nor was I referred to any ambiguity. What militates very strongly against the construction advanced by Mr Weinkove is the fact that Clause 2 (c)(i) expressly mentions "a purchase consideration of R60 000" which is in perfect conformity with an intention of the parties to confer on the wife as grantee an option to purchase her husband's half-share in Berg-en-Dal at a price of R60 000 before 31 August 1985. I can find nothing in the context of the relevant provisions which indicates that

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the intention of the parties was that the word "option" to
purchase should bear a meaning other than its ordinary meaning.
The ordinary meaning of an option to purchase a certain thing
at a certain price (as in the context of the Consent Paper)
is an agreement whereby the grantor undertakes to keep open
an offer to sell for a period of time within which the grantee,
by exercising the option, may elect to purchase it at the
fixed price. See Hersch v Nel, 1948(3) SA 686(A) at p
695. In my judgment the clearly stated intention of the parties
in the relevant provisions was to confer until 31 August 1985
on the wife as grantee a right to purchase the half-share
of her husband in Berg-en-Dal for the sum of R60 000 subject
to the terms regarding payment of the R60 000. Moreover,
since the option was stated to be in favour of the wife "or
her nominee" it evinces an intention that the option to purchase
was cedable by her to a third party. Contrary to what Mr

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Weinkove submitted it was an option to purchase in the commercial sense of the word. In the light of the aforegoing the contention of Mr Weinkove is in my judgment untenable. Subject to the second contention of Mr Weinkove which I am about to consider, it follows that the husband's attack against the validity of the exercise of the option to purchase by Abe Swersky & Associates without authority in writing by his wife was well taken.
I now turn to consider the second contention of Mr Weinkove. The gist of this contention was that once the Consent Paper was made an order of Court it acquired a different status which removed it from the sphere of purely contractual relationships between the parties. According to the argument she did not seek the enforcement of a deed of sale which amounted to an alienation of land, the formalities of which were prescribed by the Alienation of Land Act No

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68 of 1981. She sought the enforcement of an order of Court

in regard to the settlement of her property rights as contained

in the Consent Paper. The order of Court conferred on her
a right to exercise an option to acquire her husband's half-

share in Berg-en-Dal. Because the exercise of the option
was pursuant to an order of Court it was not subject to the

formalities prescribed by the Alienation of Land Act No 68
of 1981. The exercise of the option was regulated by the
common law which rendered the oral authorisation of an agent
by her to act on her behalf lawful. This contention was
founded on the following ratio decidendi of the Court a quo at
p. 544 H-545 D:

"The status of the rights conferred by the consent paper is not merely that of contractual rights. Once the consent paper became an order of Court it acquired a different status, a status which in

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my view is far removed from that of a purely contractual document creating only a contractual relationship between the parties. It is difficult to define precisely the parameters of that status. One of the features of the new status is that it can be enforced by means and in ways not available to purely contractual relationships. Another feature is that enforceable rights and duties are created which could not be created by simple contractual methods alone. A joint estate is divided stante matrimonio in a way in which the parties by their own extra-curial contractual efforts could not themselves achieve. In a very real sense this is the Court presiding over the division of the joint estate. And when a Court does that, it is not, in my opinion, obliged to comply with whatever statutory formalities may be required in a purely contractual situation. The Court can, by virtue of it being a Court of law,

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order that one party in a matrimonial dispute, transfer property to the other party against payment of a certain consideration. No question of statutory formalities arises in that situation. The fact that the Court order has, as its foundation, an agreement between the parties does not alter the position. When such agreement is elevated to the status of an order of Court it acquires a fundamentally different nature for it is now the voice of the Court, albeit the voice speaking the language of the parties in their agreement.

"In my opinion the Act, notwithstanding

its wide terms, is not intended to, nor
does it, intrude upon alienations of

land which take place under the aegis
of an order of Court. And that is precisely
what the position is in this case. By
order of Court the applicant had a right

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to exercise an option and she was, in my view, entitled to exercise that right in any of the ways permitted by the common law. That the option was exercised by an orally authorised agent is not seriously disputed by respondent and is in fact manifestly the case."

To determine the correctness of this contention it is necessary to investigate the legal nature of a decree of judicial separation a mensa et thoro.
Judicial separation a mensa et thoro originated in medieval Canon.Law owing to the strong opposition of the Christian Church to divorce. It was a legal device which relieved spouses in certain circumstances from the obligation of cohabiting while the marriage bond remained intact. It was adopted in the law of the Province of Holland where it was used extensively. It was granted by a decree

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with a view to the ultimate reconciliation of the spouses and the resumption of their cohabitation (op eene reconciliatie ende weder vereeniging). See de Groot (1583-1645) 1.5.20, Van Leeuwen (1626-1682) RHR 1.15.3, C.F. 1.1.15. 4 et 17, Brouwer (1625-1683) De Jure Connubiorum lib.2 cap 29 nr 18, Voet (1647-1713) 24.2.16, Van Bynkershoek (1673-1743), Quaestiones Juris Privati lib 2 cap 8, Lybrechts (1 1758) Redenerend Vertoog over 't Notaris Ampt 1 Deel hoofstuk 12 nr 18. The decree could also order a separation of the joint estate (boedelscheiding) where the marriage was in community of property. The husband could also be interdicted from administering his wife's separate estate. It was also the Dutch practice to incorporate in a decree a consent paper (pactum separationis bonorum, acte van separatie) in which the spouses regulated their property rights by means of boedelscheiding and by restricting the husband's marital

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authority. See Van Bynkershoek, op.cit., lib 2 cap 9,
Van der Keessel ad Gr 1.5.18 et. 3.21.11. According to the
common law one of the invariable conseguences of a marriage
from its very inception was that it was either in or out of
community of property which could not be altered by an act
inter vivos between the spouses during the subsistence of
the marriage. See Gr. 2.12.5, Groenewegen (1613-1652)
ad Cod 4.29.11, ad Cod 5.12.25. The effect of this principle
of the common law on an order of boedelscheiding and the
restriction of the husband's marital power was the subject
of much controversy among the Roman-Dutch jurists. See
Groenewegen ad Cod 5.19.1, Voet 24.2.17 e_t 19, de Groot
3.21.12, Schorer (1717-1800) ad Gr 1.5.20, Scheltinga

(1708-1765) ad Gr 3.21.8, Van Bynkershoek, op.cit.,
lib 2 cap 9, 2 Observationes Tumultuariae Novae 968,
3 Observationes Tumultuariae Novae 1626. The correct solution

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is undoubtedly to be found in Van der Linden (1759-1835)

1.3.9 viz. that the effect of a decree of judicial separation
providing for boedelscheiding and restriction of the marital
power was to suspend provisionally community of property and
the marital power until the resumption of cohabitation by
the spouses caused the revival of the full consequences of
the marriage. In referring to Van der Linden, loc.cit.,
KOTZÊ J P in Banks v Clement N O, 1921 CPD 197 at p 201 correctly
held as follows:

"The view of Van der Linden, that there is only a suspension of the rights and consequences of the marriage, which revive on a reconciliation between the spouses,has generally been recognized in South Africa as a correct statement of the law."

Moreover, there is nothing sacrosanct about a decree of judicial separation. It lapses automatically

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without an order of Court setting it aside if a reconciliation between the spouses takes place and they resume cohabitation. All the personal and property consequences of the marriage, in so far as they were suspended by the decree of judicial separation,revive ipso facto. See De Villiers v De Villiers, 1938 CPD 565 at p 567-568.
The fallacy in the ratio decidendi of the Court a quo is that an order of Court never per se directed the husband to transfer his undivided half-share in Berg-en-Dal to his wife. Had there been such an order of Court the causa for the registration of the transfer would have been the order of Court. That is, however, not the factual position in the present matter. It is clear from paragraph 7 of the wife's founding affidavit that she based her application to the Court a quo on her purported exercise of the option to purchase which Clause 2(c)(i) and (ii) of the Consent Paper

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conferred on her. Had she lawfully exercised the option to purchase the causa for the registration of transfer of her husband's half-share to her or her nominee would have been a lawfully concluded sale. The formalities regarding such a sale would have to comply with the provisions of the Alienation of Land Act No 68 of 1981. The husband's defence that the purported purchase by his wife of his undivided half-share in Berg-en-Dal was invalid was therefore sound. There is accordingly no merit in the second contention of Mr Weinkove. In the light of the aforegoing it is clear that the ratio decidendi of the Court a quo is wrong.

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It follows that the appeal must succeed. The following orders are granted:

1.	The appeal succeeds with costs.
2.	The order of the Court a quo is altered to read as follows:

'The Application is dismissed with costs'.

C. P. JOUBERT JA.

HOEXTER JA)
VAN HEERDEN JA) Concur.
NESTADT JA)
KUMLEBEN JA)

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