THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 642/2018
In the matter between:

JACQUES LE ROUX MARAIS N.O.

FIRST APPELLANT

SIVUVUYANI JULIAN SHONGWE N.O.                                        SECOND APPELLANT

and

KGOMOTSO COMFORT MAPOSA

FIRST RESPONDENT

KGOTHATSO THEODOR LEDWABA

SECOND RESPONDENT

MOKGOHU MARTHA LEDWABA

THIRD RESPONDENT

SEEPUNT EIENDOMME CC

FOURTH RESPONDENT

REGISTRAR OF DEEDS, CAPE TOWN

FIFTH RESPONDENT

COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION

SIXTH RESPONDENT
Neutral citation:
Marais N.O. and Another v Maposa and Others (642/2018)
[2020] ZASCA 23 (25 March 2020)
Coram:
PETSE DP, MBHA, VAN DER MERWE, PLASKET and
NICHOLLS JJA

Heard:
10 March 2020

Delivered:
25 March 2020

Summary:  Matrimonial Property Act 88 of 1984 – spouses married in community of
property – donation of asset of joint estate requires consent of spouse in terms of
s 15(3)(c) – consent not given – whether consent deemed to have been given in terms
of s 15(9)(a).

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Binns-Ward
J sitting as court of first instance):
1 Mr Jacques Le Roux Marais and Mr Sivuvuyani Julian Shongwe are substituted as
appellants for the late Ms Ephania Mogogodi Broodie.
2 The first, second and third respondents are directed to pay the costs of the
application for substitution, including the costs of two counsel.
3 The appeal is upheld.
4 The first, second and third respondents are directed to pay the appellants’ costs,
including the costs of two counsel.
5 The order of the court below is set aside and replaced with the following order.
‘(a) The transfer of 25 percent each of the members’ interest in the fourth respondent
to the first, second and third respondents is declared void.
(b)  The first, second and third respondents are directed to sign all necessary forms
and documentation within five days of the date of this order to re-register the members’
interest currently in their names into the name of the joint estate of the late Mr Samuel
Broodie and the late Ms Ephania Mogogodi Broodie, and to enable the sixth
respondent to rectify its records to reflect that the joint estate is the sole member of
the fourth respondent, failing which the Sheriff for the district of Cape Town is
authorized to sign all necessary forms and documentation in order to give effect to this
order.
(c) The first, second and third respondents are directed to pay the applicant’s costs,
including the costs of two counsel.’

JUDGMENT

Plasket JA (Petse DP, Mbha, Van der Merwe and Nicholls JJA concurring)

[1] Ms Ephenia Mogogodi Broodie was the executrix of the estate of the late Mr
Samuel Broodie when she brought an urgent application in the Western Cape Division
of the High Court, Cape Town. At the time of the death of Mr Broodie on 4 December
2016, he and Ms Broodie had been married for almost 50 years. Their marriage was
one in community of property. Ms Broodie launched the application after she
discovered that 75 percent of her and Mr Broodie’s joint estate’s members’ interest in
the fourth respondent, Seepunt Eiendomme CC (Seepunt), had, without her
knowledge and consent, been transferred in equal 25 percent proportions to the first,
second and third respondents, Ms Kgomotso Comfort Maposa, Mr Kgothatso Theodor
Ledwaba and Ms Mokgohu Martha Ledwaba respectively.

[2] Ms Broodie sought an order setting aside the transfer of the members’ interest
to the first to third respondents, as well as certain interim relief. The interim relief was
granted by agreement at an early stage in the proceedings. When the matter finally
came before Binns-Ward J for determination on the merits, he dealt with a number of
preliminary issues that do not have to be revisited in this appeal. He also separated
the two principal issues on the merits. They were, first, the effect of Ms Broodie’s lack
of consent on the validity of the transfer, in terms of s 15 of the Matrimonial Property
Act 88 of 1984, and, secondly, whether the transfer was effected fraudulently by Ms
Ledwaba and at a time when Mr Broodie lacked capacity.

[3] Binns-Ward J dismissed the claim based on Ms Broodie’s lack of consent,
holding that, in terms of s 15(9)(a) of the Matrimonial Property Act, she was deemed
to have consented to the transfer. He referred the ‘fraud and capacity’ issue to trial.
Ms Broodie applied for and was granted leave to appeal to this court. That leave was
restricted to the grounds relating to ‘the import and effect of section 15(9) of the
Matrimonial Property Act’.

[4] Ms Broodie died on 26 March 2019, subsequent to the judgment having been
delivered. (Both she and Mr Broodie died intestate.) At the hearing of the appeal, an
application was brought for an order substituting, as appellants, the current joint
executors of the estate of Mr Broodie for Ms Broodie. That application was opposed

by the first to fourth respondents. I shall deal with it before proceeding to deal with the
central issue in this appeal – the validity of the transfer.

The application for substitution
[5] Rule 15(1) of the Uniform Rules of Court provides that proceedings do not
terminate solely because of the ‘death, marriage or other change of status’ of a party,
‘unless the cause of such proceedings is thereby extinguished’. Rule 15(3) provides
that when a party dies or is no longer capable of acting as such, ‘his executor, curator,
trustee or similar legal representative, may by notice to all other parties and to the
registrar intimate that he desires in his capacity as such thereby to be substituted for
such party, and unless the court otherwise orders, he shall thereafter for all purposes
be deemed to have been so substituted’.

[6] Mr Jacques Le Roux Marais, as a duly appointed executor of the estate of Mr
Broodie, brought an application in terms of rule 15 for the substitution of himself and
his co-executor, Mr Sivuvuyani Julian Shongwe as appellants, in the stead of Ms
Broodie in her capacity as executrix of the estate of Mr Broodie. An application, which
was not persisted with, was also brought ostensibly for the substitution of Mr Charles
Duke Broodie, the executor of the estate of Ms Broodie, in the stead of Ms Broodie in
her personal capacity. No more need be said of this.

[7] It appears that when Ms Broodie died, the Master was prevailed upon to appoint
joint executors, one nominated by the Broodie family and the other nominated by the
Ledwaba family. Mr Marais was nominated by the Broodie family and Mr Shongwe
was nominated by the Ledwaba family.

[8] In his founding affidavit, Mr Marais stated that Mr Shongwe was requested to
consent to be substituted as an appellant but he responded by saying that he had
decided ‘to stay neutral in this matter and not appear to take sides in a dispute
involving beneficiaries in the common estate’. He was approached again but
maintained his position, adding that he would not change it ‘unless compelled by a
court order’.

[9] It is unfortunately necessary to say something about Mr Shongwe’s attitude.
When he was appointed as an executor, he was not appointed to champion one of the
disputing parties. He was appointed to act in the best interests of the estate. On the
face of it, a very substantial asset of the estate has been donated in circumstances
that, at the very least, raise suspicion as to that transaction’s validity. It was not open
to, or prudent of Mr Shongwe to assert a position of ‘neutrality’. I would have expected
him to have agreed to be substituted as an appellant without hesitation.

[10] Despite having filed opposing papers, the respondents abandoned their
opposition at the hearing of the appeal. It was argued on their behalf, however, that in
the event of the appeal being dismissed, Mr Marais ought to be ordered to pay the
costs de bonis propriis. As this was never raised in the papers, with the consequence
that Mr Marais never had the opportunity to deal with it, the argument was not properly
before us and can safely be ignored.

[11] I am satisfied that Mr Marais ought to be substituted as an appellant. I also take
the view that, despite his unacceptable abdication of his duty as an executor, Mr
Shongwe should be substituted as an appellant too. The opposition to what ought to
have been a formality was unreasonable, with the result that Ms Maposa, Mr Ledwaba
and Ms Ledwaba must bear the costs of the application. While Seepunt, represented
by Ms Ledwaba, also purported to oppose the application, in view of the result of the
appeal, there is no reason why it should have to pay any costs. I shall make the
appropriate order at the end of this judgment.

The central issue
Background
[12] In this account of the background to the application before Binns-Ward J, I set
out facts deposed to by Ms Broodie in her founding affidavit that are either common
cause, are not placed in dispute or cannot effectively be disputed. I shall later consider
Ms Ledwaba’s version including what she knew of the circumstances of the marriage
of Mr and Ms Broodie.

[13] Mr and Ms Broodie were married on 26 April 1967. Ms Broodie said in her
founding affidavit that, together, they accumulated immovable property, worked

together as a team and owned and ran a depot from which paraffin was sold. They
appear to have built up a substantial estate over the years.

[14] The biggest asset in their joint estate was the members’ interest in Seepunt. It
owned a building in Sea Point, Cape Town. The most recent valuation of the building
placed a value of about R20 million on it. The building also generates rental of
approximately R75 000 per month. Mr Broodie acquired the members’ interest in
Seepunt on 20 April 2001.

[15] Ms Broodie believed that Ms Ledwaba was employed by Mr Broodie as a
bookkeeper. That is disputed. Ms Ledwaba said that she was never formally employed
but played an active part in the management of some of Mr Broodie’s businesses. Ms
Broodie became aware of the relationship between Mr Broodie and Ms Ledwaba in
1989 and, in 1993, she found out that Mr Broodie had fathered two children – the first
and second respondents – by Ms Ledwaba.

[16] Mr Broodie began to display signs of ill-health in 2013. He appears to have
become forgetful and, at times, confused. In early 2014, it was determined that he had
suffered a stroke. As his mental health deteriorated, he withdrew from active
involvement in his businesses.

[17] It is common cause that on 12 May 2014, 75 percent of the members’ interest
in Seepunt was transferred from Mr Broodie to Ms Ledwaba and her two children, each
acquiring 25 percent. Ms Broodie said that this donation was effected without her
knowledge and without her consent. She was most surprised that Mr Broodie had not
spoken to her about the donation.

[18] Ms Broodie only became aware of the donation in November 2016. That was
about two and a half years after it had occurred and shortly before Mr Broodie died on
4 December 2016.

The Matrimonial Property Act
[19] Section 11 of the Matrimonial Property Act abolished the common law rule to
the effect that, unless an antenuptial contract provides otherwise, the husband in a

marriage exercises marital power over his wife. Section 12 provides that one of the
effects of the abolition of marital power was ‘to do away with the restrictions which the
marital power places on the capacity of a wife to contract and to litigate’.

[20] Chapter III of the Act concerns marriages in community of property. Its first
section, s 14, makes provisions for the natural consequence of the abolition of marital
power, namely equality between spouses. It states:
‘Subject to the provisions of this Chapter, a wife in a marriage in community of property has
the same powers with regard to the disposal of the assets of the joint estate, the contracting
of debts which lie against the joint estate, and the management of the joint estate as those
which a husband in such a marriage had immediately before the commencement of this Act.’

[21] Section 15, the section with which this appeal is concerned, is headed ‘Powers
of spouses’. Its focus is on the commercial relationships of spouses and third parties.
Section 15(1) provides that ‘[s]ubject to the provisions of subsections (2), (3) and (7),
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’.

[22] Section 15(2), the first subsection to which s 15(1) is subject, sets out a number
of transactions that not only require the consent of the non-contracting spouse, but his
or her written consent. The list includes, by way of example, entering into ‘any contract
for the alienation, mortgaging, burdening with a servitude or conferring of any other
real right in immovable property forming part of the joint estate’1 and a spouse binding
himself or herself as a surety.2

[23] Section 15(3), the second subsection to which s 15(1) is subject, also requires
the consent of the non-contracting spouse to the transactions that it lists, but consent
to these transactions need not be in writing. Section 15(3)(c) provides, for instance,
that a spouse may not, without the consent of the other spouse, ‘donate to another
person any asset of the joint estate or alienate such an asset without value, excluding
an asset of which the donation or alienation does not and probably will not
unreasonably prejudice the interest of the other spouse in the joint estate, and which

1 Section 15(2)(b).
2 Section 15(2)(h).

is not contrary to the provisions of subsection (2) or paragraph (a) of this subsection’.3
Section 15(8) provides that ‘[i]n determining whether a donation or alienation
contemplated in subsection (3)(c) does not or probably will not unreasonably prejudice
the interest of the other spouse in the joint estate, the court shall have regard to the
value of the property donated or alienated, the reason for the donation or alienation,
the financial and social standing of the spouses, their standard of living and any other
factor which in the opinion of the court should be taken into account’.

[24] The consent required by s 15(3), as well as for most of the transactions listed
in s 15(2), may be given after the event: the non-contracting spouse may ratify the
transaction provided that this is done within a reasonable time.4 Consent is not
required in respect of certain of the transactions listed in s 15(2) – such as a spouse
binding himself or herself as a surety – if those transactions are ‘performed by a
spouse in the ordinary course of his profession, trade or business’.5

[25] Section 15(9), which is central to this appeal, deals with the consequences of
a transaction requiring consent being entered into without consent. It states:
‘When a spouse enters into a transaction with a person contrary to the provisions of subsection
(2) or (3) of this section . . . and-
(a) that person does not know and cannot reasonably know that the transaction is being
entered into contrary to those provisions . . . it is deemed that the transaction concerned has
been entered into with the consent required in terms of the said subsection (2) or (3) . . . ;
(b) that spouse knows or ought reasonably to know that he will probably not obtain the consent
required in terms of the said subsection (2) or (3) . . . and the joint estate suffers a loss as a
result of that transaction, an adjustment shall be effected in favour of the other spouse upon
the division of the joint estate.’

[26] The effect of s 15 may be summarized as follows. First, as a general rule, a
spouse married in community of property ‘may perform any juristic act in connection

3 ‘Section 15(3)(a) concerns the alienation, pledging or other burdening of ‘furniture or other effects of
the common household forming part of the joint estate’.
4 Section 15(4).
5 Section 15(6). See Amalgamated Banks of South Africa Bpk v De Goede en ‘n Ander 1997 (4) SA 66
(SCA).

with the joint estate without the consent of the other spouse’.6 Secondly, there are
exceptions to the general rule. In terms of ss 15(2) and (3), a spouse ‘shall not’ enter
into any of the transactions listed in these subsections without the consent of the other
spouse. Subject to what is said about the effect of s 15(9)(a), if a spouse does so, the
transaction is unlawful, and is void and unenforceable.7 This, it seems to me, flows
from what Innes CJ, in Schierhout v Minister of Justice,8 called a ‘fundamental principle
of our law’, namely, that ‘a thing done contrary to the direct prohibition of the law is
void and of no effect’.9 Thirdly, if a listed transaction is entered into without the consent
of the non-contracting spouse, that transaction will nonetheless be valid and
enforceable if the third party did not know and could not reasonably have known of the
lack of consent. While the consent requirement is designed to provide protection to
the non-contracting spouse against maladministration of the joint estate by the
contracting spouse, the ‘deemed consent’ provision in s 15(9)(a) is intended to protect
the interests of a bona fide third party who contracts with that spouse.10

[27] Section 15 thus seeks to strike a balance between the interests of the non-
consenting spouse, on the one hand, and the bona fide third party, on the other.
Whether the legislature has struck an appropriate balance has been fiercely debated
by academic writers, but is an issue that does not have to be engaged with in this
judgment.11 In Sishuba v Skweyiya and Another12 the context in which s 15, and s
15(9)(a) in particular, is to be interpreted was set out as follows:
‘These provisions seek to regulate marriages in community of property after the abolition of
marital power. They must be interpreted and applied within this context – one in which “the

6 B van Heerden, A Cockrell and R Keightley Boberg’s Law of Persons and the Family (2 ed) (1999) at
188.
7 Amalgamated Bank of South Africa Bpk v Lydenburg Passasierdienste BK en Andere 1995 (3) SA
314 (T) at 322F-I; Bopape and Another v Moloto 2000 (1) SA 383 (T) at 386J-387A; Sishuba v Skweyiya
and Another [2008] ZAECHCG 25; 2008 JDR 0593 (E) paras 19-20. See too L Steyn ‘When a Third
Party “Cannot Reasonably Know” that a Spouse’s Consent to a Contract is Lacking’ (2002) 119 SALJ
253 at 253.
8 Schierhout v Minister of Justice 1926 AD 99 at 109.
9 See, in the context of s 15 of the Matrimonial Property Act, Sishuba v Skweyiya and Another (note 7)
para 20.
10 Van Heerden, Cockrell and Keightley (note 6) at 191.
11 See for instance, Van Heerden, Cockrell and Keightley (note 6) at 193, who argue that the protection
given to third parties by s 15(9)(a) at the expense of non-contracting spouses has been ‘taken too far’
and J S McLennan ‘The Perils of Contracting with Persons Married in Community of Property’ (2000)
117 SALJ 367 at 368 who says that ‘the legislature has effectively cast the burden of the equality of
spouses onto third parties’.
12 Note 7 para 17.

restrictions which the marital power places on the capacity of a wife to contract and to litigate”
have been abolished; in which “a wife in a marriage in community of property has the same
powers with regard to the disposal of the assets of the joint estate, the contracting of debts
that lie against the joint estate, and the management of the joint estate as those which a
husband in such a marriage had immediately before the commencement of this Act”; and in
which proper effect must be given to the fundamental right of everyone to equality before the
law and the equal protection and benefit of the law.’

[28] A third party to a transaction contemplated by ss 15(2) or (3) that is entered into
without the consent of the non-contracting spouse is required, in order for consent to
be deemed and for the transaction to be enforceable, to establish two things: first, that
he or she did not know that consent was lacking; and secondly, that he or she could
not reasonably have known that consent had not been given. In terms of the general
principle that the party who asserts a particular state of affairs is generally required to
prove it,13 the burden of bringing s 15(9)(a) into play rests on the party seeking to rely
on the validity of the transaction.14

[29] The reference to reasonableness in the phrase ‘cannot reasonably know’
imports an objective standard into the proof of this element: it must be established with
reference to the standard of the reasonable person, in terms of what the reasonable
person would do in the circumstances and the conclusion that the reasonable person
would draw.15

[30] In other words, a duty is placed on the party seeking to rely on deemed consent
to make reasonable enquiries. Van Heerden, Cockrell and Keightley say:16
‘Lack of actual knowledge on the part of the third party is a straightforward enough stipulation
and capable of determination. But “cannot reasonably know” is more problematic. It must imply
that the third party is under some sort of obligation to enquire about the status of the person
with whom he or she is contracting. The third party is called upon, it is submitted, to take
reasonable steps to ascertain whether the person with whom he or she is dealing is married

13 Pillay v Krishna and Another 1946 AD 946 at 951-952.
14 Distillers Corporation Ltd v Modise 2001 (4) SA 1071 (O) para 4.
15 Distillers Corporation Ltd v Modise (note 14) para 5.
16 Note 6 at 191. See too Steyn (note 7) at 256 who says: ‘The word “cannot” in the phrase “cannot
reasonably know”, I submit, implies that a duty is cast upon the third party to take reasonable steps to
investigate whether, in the circumstances, consent is required and, if so, whether it has been obtained.’

and, if so, whether they have obtained whatever consent may be necessary for the particular
transaction.’
The authors make the point that the third party may not do nothing, because then s
15(9)(a) would be meaningless.17 To put it at its lowest, the third party is ‘put on
enquiry’.18

[31] The views of the academic writers are in harmony with the views expressed in
various high court judgments. For instance, in Visser v Hull and Others,19 Dlodlo J,
after referring to the views of Steyn,20 held:
‘I agree with Professor Steyn that a third party is expected to do more than rely upon a bold
assurance by another party regarding his or her marital status. An adequate inquiry by the
third party is required. If this proposition and interpretation of the liability of third parties is
accepted, then it could be argued that the third parties in the case under consideration should
have made the necessary inquiries into the current state of the applicant and the deceased's
marital status.’
The same conclusion was reached in Sishuba v Skweyiya and Another,21 with
reference to the views of Van Heerden, Cockrell and Keightley replicated in para [30]
above.

[32] I endorse the views expressed in the cases to which I have referred, as well as
the views of the academic writers upon which they are based: a duty is cast on a party
seeking to rely on the deemed consent provision of s 15(9)(a) to make the enquiries
that a reasonable person would make in the circumstances as to whether the other
contracting party is married, if so, in terms of which marriage regime, whether the
consent of the non-contracting spouse is required and, if so, whether it has been given.
Anything less than this duty of enquiry, carried out to the standard of the reasonable
person, would render s 15(9)(a) a dead letter. It would not protect innocent spouses
from the maladministration of the joint estate and would undermine the Matrimonial
Property Act’s purpose of promoting equality in marriages in community of property.

17 Note 6 at 191 fn107.
18 J D Sinclair An Introduction to the Matrimonial Property Act 1984 (1984) at 20.
19 Visser v Hull and Others [2009] ZAWCHCC 77; 2010 (1) SA 521 (WCC) para 8. See too Yonda
Investments CC v Rohr and Another [2014] ZAGPPHC 275; 2014 JDR 1031 (GNP) para 24.
20 Note 7 at 256.
21 Note 7 para 22.

The facts
[33] In what follows, I set out relevant facts deposed to by Ms Ledwaba. In terms of
the Plascon-Evans rule,22 the facts deposed to by her, unless they are uncreditworthy,
far-fetched or untenable, are to be accepted for purposes of determining whether a
case has been made out for the relief claimed by Ms Broodie. For present purposes, I
shall accept them at face value rather than deal with the argument raised on behalf of
the appellants that her version is not, in important respects, creditworthy and ought to
be rejected on the papers.

[34] Ms Ledwaba said in her answering affidavit that she met Mr Broodie in 1986
and they became involved in a personal relationship in that year. She knew at the time
that he was married and had three children but did not know whether he was married
civilly or by custom. During 1988, Ms Ledwaba and Mr Broodie purported to enter into
a customary union. As Mr Broodie and Ms Broodie were married civilly, the result was
that the customary union was invalid, although Ms Ledwaba did not know this until
after these proceedings had been initiated.

[35] Ms Ledwaba stated that Mr Boodie told her that he had told Ms Broodie about
the customary union. This is, to an extent, consistent with Ms Broodie’s evidence that
she found out about the relationship between Ms Ledwaba and Mr Broodie in 1989. It
is not clear from the papers precisely what Ms Broodie knew of the nature of the
relationship.

[36] Two children were born of the union. Ms Maposa was born on 21 November
1989. Her brother, Mr Ledwaba, was born on 11 May 1993. Ms Broodie’s evidence
was that she found out that Mr Broodie had fathered two children by Ms Ledwaba in
1993.

[37] Ms Ledwaba resigned from her employment as a nurse and became
increasingly involved in administering one of Mr Broodie’s businesses, a paraffin
distribution business in Dennilton. She also began to study and in due course
completed a Master of Business Administration degree.

22 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.

[38] During the late 1990s, Ms Ledwaba said, Mr Broodie first broached the topic of
providing for their children in the event of his death. He wanted to provide for both of
his families separately by giving each of them different properties and businesses. A
few years later, in 2001, he acquired the members’ interest in Seepunt. She said in
this regard:
‘I pause to advise that although the Deceased was registered as the sole member of the CC,
in accordance with the usual patriarchal manner in which he conducted all his business
dealings, we verbally agreed that the members’ interest in the CC actually belonged to our
children and myself, although it would only be registered in our names on a date to be agreed
between the Deceased and myself. Although we did not discuss such issue, [there] can be no
doubt that it was tacitly or impliedly agreed that we could immediately demand to be registered
as the members of the CC in the event of his death.’
She conceded that she and Mr Broodie never entered into a written agreement of
donation in respect of the members’ interest in Seepunt.

[39] During 2013, Ms Maposa asked when her portion of the members’ interest in
Seepunt would be transferred to her. This led to a meeting, on 7 January 2014,
attended by Mr Broodie, Ms Ledwaba and their two children, at which it was agreed
that ‘the Deceased would forthwith transfer 75% of his members interest to our
children and me, with each of us to receive a members interest of 25%’. It was also
agreed that Ms Ledwaba ‘would take all necessary steps to procure such registration’.
Subsequent to this agreement she ‘duly acquired the necessary documentation,
arranged for the completion thereof by all parties concerned and submitted it to the
CIPC, whereupon my children and I became the registered members of the CC on 12
May 2014’.

Was the donation valid?
[40] Section 15(3)(c) only requires the non-contracting spouse’s consent if the
donation concerned ‘does not and probably will not unreasonably prejudice’ his or her
interests. Section 15(8) provides the means to determine this issue.

[41] The donation of 75 percent of the members’ interest in Seepunt constitutes the
lion’s share of the joint estate. In effect, the respondents claim an asset valued at R20

million for themselves, leaving a residue of perhaps two or three million Rand for Mr
Broodie’s ‘first family’. I bear in mind that the reason given by Ms Ledwaba for Mr
Broodie’s donation was to make provision, equally it would appear, for both of his
families. This donation certainly does not do that but rather benefits Ms Ledwaba and
her children in a disproportional manner as compared to Mr Broodie’s children by Ms
Broodie. These factors, on their own, lead me to the conclusion that the donation
certainly prejudiced the interests of Ms Broodie, and therefore required her consent.

[42] It is not in dispute that Ms Broodie never consented to the transfer of 75 percent
of the members’ interest in Seepunt to Ms Maposa, Mr Ledwaba and Ms Ledwaba. As
neither Ms Maposa nor Mr Ledwaba have claimed to have made any enquiries in terms
of s 15(9)(a), and because Ms Ledwaba, in terms of the agreement, took charge of the
transaction and acted on their behalf, it is to her conduct that one must look to
determine whether Ms Broodie’s consent may be deemed to have been given.

[43] Ms Ledwaba knew from the outset of her relationship with Mr Broodie that he
was married and had children. She stated that Mr Broodie never discussed his
marriage to Ms Broodie with her, and she never raised the issue with him. She ‘barely
knew the applicant’s name’ and she ‘certainly had no knowledge as to whether or not
she and the deceased were married according to civil rights or entered into a
customary marriage, and if the former, whether they were married in or out of
community of property’. On the basis of this factual foundation she asserted that she
‘did not know, and in light of the nature of my relationship with the Deceased, could
not have been expected to know, that he was married in community of property’.

[44] On Ms Ledwaba’s own version, she does not get out of the starting blocks. She
admitted that she knew that Mr and Ms Broodie were married but she made no
enquiries as to how they were married and whether Mr Broodie required Ms Broodie’s
consent to the donation. Her counsel conceded that she did not even ask Mr Broodie
if he had discussed the transfer with Ms Broodie. As she made no enquiries despite
her knowledge that Mr Broodie was married, she did not, on her own version, establish
that she, as a reasonable person, could not have known that the transaction was
entered into without Ms Broodie’s consent. The result is that the appeal must succeed
and the transaction must be set aside, with the consequence that the members’

interest in Seepunt reverts to the joint estate of Mr and Ms Broodie. In the light of this
conclusion, there is no basis for a costs order, either in the court below or on appeal,
to be made against Seepunt.

The order
[45] I make the following order.
1 Mr Jacques Le Roux Marais and Mr Sivuvuyani Julian Shongwe are substituted as
appellants for the late Ms Ephania Mogogodi Broodie.
2 The first, second and third respondents are directed to pay the costs of the
application for substitution, including the costs of two counsel.
3 The appeal is upheld.
4 The first, second and third respondents are directed to pay the appellants’ costs,
including the costs of two counsel.
5 The order of the court below is set aside and replaced with the following order.
‘(a) The transfer of 25 percent each of the members’ interest in the fourth respondent
to the first, second and third respondents is declared void.
(b)  The first, second and third respondents are directed to sign all necessary forms
and documentation within five days of the date of this order to re-register the members’
interest currently in their names into the name of the joint estate of the late Mr Samuel
Broodie and the late Ms Ephania Mogogodi Broodie, and to enable the sixth
respondent to rectify its records to reflect that the joint estate is the sole member of
the fourth respondent, failing which the Sheriff for the district of Cape Town is
authorized to sign all necessary forms and documentation in order to give effect to this
order.
(c) The first, second and third respondents are directed to pay the applicant’s costs,
including the costs of two counsel.’

______________________
C Plasket
Judge of Appeal

APPEARANCES

For the appellants:

S Gundelpfennig SC and E de Lange
Instructed by:
Van Wyk Van Heerden Attorneys, Paarl
Lovius Block Attorneys, Bloemfontein

For the first to fourth respondents:
H W Phalatsi
Instructed by:
Phalatsi and Partners, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

25 March 2020

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Marais N.O. and Another v Maposa and Others (642/2018) [2020] ZASCA 23 (25
March 2020)

MEDIA STATEMENT

The Supreme Court of Appeal (SCA) today allowed the appeal of Mr J Marais and Mr S
Shongwe, in their capacities as joint executors of the estate of the late Mr Samuel Broodie,
against Ms K C Maposa, Mr K T Ledwaba and Ms M M Ledwaba. Mr Broodie, at the time of
his death, had been married in community of property to Ms E M Broodie for close to 50 years.
He had also been involved in a long-standing personal relationship with Ms Ledwaba. Ms
Maposa and Mr Ledwaba were the children born of this relationship. Shortly before Mr
Broodie’s death, 75 percent of the members’ interest in a close corporation owned by Mr and
Ms Broodie’s joint estate was transferred to Ms Maposa, Mr Ledwaba and Ms Ledwaba. The
close corporation owned a building in Sea Point, Cape Town worth approximately R20 million.
Ms Broodie had never consented to the transfer. Prior to her death, Ms Broodie had, in her
capacity as executor of Mr Broodie’s estate, launched an application in the Western Cape
Division of the High Court, Cape Town to set aside the transfer. She had been unsuccessful.
She was substituted as an appellant by the joint executors of Mr Broodie’s estate.
In terms of s 15(3) of the Matrimonial Property Act 88 of 1984, Ms Broodie’s consent
was required for the transaction to be valid. Section 15(9)(a) of the Act provides, however, that
a spouse will be deemed to have consented if the third party with whom the other spouse had
transacted ‘does not know and cannot reasonably know’ of the lack of consent. On appeal,
the only issue was whether Ms Maposa and her children could not reasonably have known of
Ms Broodie’s lack of consent. They were under a duty to make enquiries. As Ms Ledwaba
knew that Mr and Ms Broodie were married but never even enquired of Mr Broodie whether
Ms Broodie’s consent was required, Ms Broodie could not be deemed to have consented. The
result was that the transaction was void.