Neutral citation: Booysen and Others v Booysen and Others (29558/10)  ZAGPJHC 27; 2012 (2) SA 38 (GSJ) (25 March 2011)
Coram: DSS Moshidi J
Heard: 10 November 2010
Delivered: 25 March 2011
The court was asked to interpret the formalities for the sale of land as contained in section 2 of the Alienation of Land Act 68 of 1981 ("the Act").
The facts are as follows. Joseph and Dora Booysen were married to each other in community of property. They were the parents of the first applicant, the second applicant and the first respondent. The second respondent was married to the first respondent in community of property. Dora Booysen died on 16 April 1998, and was survived by her husband, Joseph Booysen. Prior to her demise, Dora and Joseph Booysen executed a joint will on 1 December 1995.
On her death in April 1998, the estate of Dora Booysen was duly reported at the offices of the fifth respondent, the Master of the court. For reasons unknown to the court, the Master only appointed an executor on 1 July 2008, some ten years after the death of Dora Booysen. On 8 October 2007 Joseph Booysen concluded a written deed of sale in terms of which he sold the immovable property in the joint estate to his son, the first respondent, and his wife, the second respondent. The sale agreement had an addendum, which was signed by the first and the second respondents and the seller, Joseph Booysen, on 18 January 2008. On 8 May 2008 Joseph Booysen too passed away. The issues for determination in this matter were, first, whether Joseph Booysen had legally sold the immovable property to the first and second respondents; secondly, whether the fourth respondent, as executor of the estate of the late Dora Booysen, had to consent to the sale; and finally whether the sale of the immovable property was governed by the provisions of the Act.
Moshidi J held that the surviving spouse of a couple married in community of property has, after the death of his spouse, no legal authority to enter into an agreement of sale of immovable property in the joint estate without the consent of the executor and in circumstances where the estate of the deceased spouse has not been finalized. As the deceased estate is not a separate legal persona, the executor Is the person representing the estate and the only person with authority to sell the property.
Such an agreement of sale of immovable property by the surviving spouse does not comply with section 2(1) of the Act and is therefore void ab initio. Further, the agreement of sale cannot be rectified by attaching the signature of the executor subsequently.
The sale was thus invalid and void. The first and second respondents were ordered, jointly and severally, to pay the costs of the application.