1. Govender and another v Maitin and another 2008 (6) SA 64 (D)
1.1 In Govender and another v Maitin and another 2008 (6) SA 64 (D) the decision of the Court was based on the acceptance by the court that a spouse cannot purchase immovable property without the consent of the other spouse.
1.2 The court interpreted the provisions of section 15 of the Matrimonial Property Act 88 of 1984 as follows: "I deal now with s 15(2) and s 15(9). Subsection (2) of s 15 (which) provides that 'such a spouse shall not without the written consent of the other spouse perform a number of juristic acts named in paras (a) - (h) of that subsection. Paragraph (g) of ss (2) specifically provides that: (2) Such a spouse shall not without the written consent of the other spouse -(g) as a purchaser enter into a contract as defined in the Alienation of Land Act 68 of 1981 and to which the provisions of that Act apply. It is a provision couched in peremptory terms. In the present case no evidence of such written consent was tendered."
1.3 The terms and conditions contained in the "agreement of sale" do not appear from the reported decision but what is clear is that the agreement was signed on 2 August 2007, the judgement delivered on 8 February 2008 and "the entire purchase price was guaranteed within the stipulated dies" which must have been before 8 February 2008. I therefore, for the purpose of this memorandum, assume that the purchase price was to be paid within a period of less than a year.
1.4 I now turn to the definition of "contract" as contained in the Alienation of Land Act 68 of 1981.
2. Alienation of Land Act 68 of 1981
2.1 In section 1 of the Alienation of Land Act 68 of 1981:
2.1.1 "contract" is defined as "a deed of alienation under which land is sold against payment by the purchaser to, or to any person on behalf of, the seller of an amount of money in more than two instalments over a period exceeding one year............" (my underlining) and;
2.1.2 "deed of alienation" is defined as "a document or documents under which land is alienated".
2.2 From the said definitions it is clear that 'a deed of alienation' includes a 'contract' but not vice versa.
2.3 It would thus appear as if an ordinary agreement of sale of immovable property is a 'deed of alienation' whilst an agreement of sale in terms of which the purchase price is payable in at least three instalments over more than a year is a special kind of 'deed of alienation' which, for the purposes of the Alienation of Land Act, is called a 'contract'.
2.4 Based on my assumption in paragraph 1.3 above it would appear that the agreement before the court in Govender and another v Maitin and another 2008 (6) SA 64 (D) was not a 'contract' as defined in the Alienation of Land Act but an ordinary 'deed of alienation'.
3. Matrimonial Property Act 88 of 1984
3.1 Section 15 of the Matrimonial Property Act 88 of 1984 provides that except for certain exceptions provided for in the section "a spouse in a marriage in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse". None of the exceptions forbids a spouse to, without the consent of his or her spouse, as purchaser enter into a 'deed of alienation'. What the spouse may not do is to, without the consent of his or her spouse, "as a purchaser enter into a contract as defined in the Alienation of Land Act, 1981 (Act 68 of 1981), and to which the provisions of that Act apply" (my underlining).
3.2 I respectfully submit that the court erred in finding the agreement before it to be void as that finding was based on the erroneous acceptance that the agreement was a 'contract' as defined in the Alienation of Land Act, 1981 (Act 68 of 1981).
Roelie Rossouw
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