THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

CASE  NO:  514/2001

In the matter between :

LOUISA DU PLESSIS                                                                                Appellant

and

MARIANA PIENAAR NO                                                      1st Respondent

NICO HENDRIK BOEZAART NO

2nd Respondent
ABSA BANK LIMITED

3rd Respondent
MASTER OF THE HIGH COURT

4th Respondent
SUSCA WATTS (BORN DU PLESSIS)

5th Respondent
PETRO DU PLESSIS

6th Respondent
LOURENS LEWIES DU PLESSIS

7th Respondent
____________________________________________________________
Coram:             HARMS, CAMERON, BRAND, NUGENT JJA et HEHER AJA
Heard:                 10 SEPTEMBER 2002
Delivered:         26 SEPTEMBER 2002
Summary:    Spouse married in community of property – separate
property – whether available to creditors upon insolvency of spouses.

_____________________________________________________________

J U D G M E N T
_____________________________________________________________

NUGENT JA:

NUGENT JA:
[1] One of the ordinary consequences of marriage in community of
property is that the property of the spouses is brought together in a joint
estate that is owned by them in equal undivided shares.  It is well
recognised, however, that either spouse might also own separate property
that is excluded from the joint estate (Erasmus v Erasmus 1942 AD 265;
Cuming v Cuming and Others 1945 AD 201).  The question in this appeal is
whether that separate property is available to meet the claims of joint
creditors of the spouses upon their insolvency.

[2] The question arises in the present case in relation to certain farms,
equipment, and livestock that were inherited by the appellant upon the death
of her father in 1983.  At the time the inheritance accrued to the appellant
she was married, in community of property, and the marriage is still in

existence. The property was bequeathed to the appellant subject to a
stipulation that it was not to form part of the joint estate of the appellant and
her husband, that it was not to be subject to the marital power of the
appellant’s husband, and that it was not to fall within ‘any possible insolvent
estate’ of the appellant’s husband nor vest in the trustee of such estate.

[3] The appellant’s husband carried on business as a moneylender for the
benefit of the joint estate. The business fell upon hard times and on 19
March 2000 an order was made by the Transvaal Provincial Division finally
sequestrating the joint estate of the appellant and her husband (which is the
usual form in which such orders are granted when the parties are married in
community of property.)  The first and second respondents are the trustees of
the insolvent estate. (The remaining respondents played no role in the
proceedings in this Court or in the Court a quo.)  The trustees laid claim to

the appellant’s separate property for the benefit of creditors whereupon the
appellant applied to the Transvaal Provincial Division for orders declaring
that the property did not form part of the insolvent estate, prohibiting the
trustees from selling the property for the benefit of creditors, and compelling
them to restore the property to her.  (The appellant also claimed other relief
in the alternative but that claim was subsequently abandoned.) The matter
came before Van der Westhuizen J who followed the decision of McLaren J
in Badenhorst v Bekker NO en Andere 1994 (2) SA 155 (N) and dismissed
the appellant’s claims with costs but granted leave to appeal to this Court.

[4] The central premise upon which the various submissions made by the
appellant was founded was that the debts that have given rise to the claims
against the insolvent estate were debts that were incurred by the joint estate.
That being so, it was submitted, they are recoverable only from the property

of the joint estate, and not from the separate property of the appellant which
falls outside the joint estate.   The respondent’s counsel, in an erudite and
helpful argument, pointed out, correctly, that the premise for those
submissions is unsound: 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.  Accordingly the ‘joint
estate’ did not incur the debts that are now sought to be recovered and it is
not the insolvent 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. (There
are exceptions that are not relevant to this appeal.)  That was expressed as
follows by Rabie JA in De Wet NO v Jurgens 1970 (3) SA 38 (A) at 47D-F
and quoted with approval in Nedbank Ltd v Van Zyl 1990 (2) SA 469 (A) at
476B-E:

‘Dit blyk duidelik dat die man en die vrou se skulde gemeenskaplike skulde is wat
uit die gemeenskaplike boedel betaalbaar is.  Hulle is dus eintlik
medeskuldenaars.  Dit is wel waar dat die man gewoonweg verantwoordelik is vir
die betaling van skulde, maar dit beteken nie dat net hy skuldenaar is nie.
Betalings word van hom geëis omdat hy in beheer van die boedel is, en hy word
in die Hof aangespreek omdat, behalwe in sekere uitsonderingsgevalle, slegs hy
voor die Hof gedaag kan word.  Wanneer hy ‘n vonnisskuld betaal, betaal hy dit
uit die gemeenskaplike boedel, en wanneer hy ‘n vonnisskuld nie betaal nie, word
eksekusie teen die bate in die gemeenskaplike boedel gehef.’

[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.  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 (see J.C. Sonnekus
‘Insolvensie by Huwelike in Gemeenskap van Goed’ 1986 TSAR 92 at 97;
A.H. Van Wyk The Power to Dispose of the Assets of the Universal

Matrimonial Community of Property unpublished doctoral thesis Leiden
1971 p. 60).  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 to 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.

[6] Similarly, the remedies provided for by the Insolvency Act 24 of 1936
are available against both spouses for recovery of the debt that is due by
both of them.  Before the Matrimonial Property Act 88 of 1984 came into
effect the husband, in whom the marital power vested, could be cited alone
in proceedings for sequestration of the joint estate, but even then the
consequence of such an order being granted was to render both spouses
‘insolvent’ as contemplated by the Act with all which that entails (De Wet

NO v Jurgens, supra, at 48A-C).  (Section 17(4)(b) of the Matrimonial
Property Act now requires both spouses to be cited in an application for the
sequestration of a joint estate.)  Moreover, the Insolvency Act does not
recognise separate estates of a debtor, nor does it allow for the sequestration
of only part of a debtor’s estate.  An order of sequestration has the effect of
divesting the debtor of the whole of his or her estate.  Section 20(1)(a)
provides expressly that the effect of the sequestration of the estate of an
insolvent shall be ‘to divest the insolvent of his estate and to vest it in the
Master until a trustee has been appointed, and, upon the appointment of a
trustee, to vest the estate in him.’  Section 20(2) in turn provides that for the
purposes of subsection (1) the estate of an insolvent shall include:
‘(a)
all property of the insolvent at the date of the sequestration, including
property or the proceeds thereof which are in the hands of a sheriff or a
messenger under writ of attachment;

(b)
all property which the insolvent may acquire or which may accrue to him
during the sequestration, except as otherwise provided in section twenty-
three.’

[7] There is no provision, then, for only part of a debtor’s estate to be
available to his or her creditors, nor, when incurring a debt, is a debtor
capable in law of binding only part of his or her estate for its recovery.
When the estate is sequestrated for recovery of the joint debts of the spouses,
both spouses become ‘insolvent debtors’ for purposes of the Insolvency Act,
with the consequence that the property of both of them (comprising their
undivided interests in the joint estate as well as separately owned property)
is available to meet the claims of creditors.  In my view that follows
inevitably from the joint liability of the spouses for debts that are incurred by
either of them, and the ordinary legal consequences to a debtor of having
incurred debt.  Neither one of the spouses, nor a testator, is capable in law of

unilaterally altering those ordinary consequences. A spouse who is married
in community of property, and who owns separate property, is in no stronger
position than any other debtor who similarly is not capable in law of
immunising property against the claims of creditors.  (cf Ex parte Estate
Kelly 1942 OPD 265.

[8] We were referred to two decisions in which a contrary conclusion was
reached.  In Ex parte Oberholzer 1967 (1) PH C7 (GW) it was held that a
donor or testator is entitled to give or bequeath immovable property to a
woman who is married in community of property so as not to form part of
the joint estate, and not to be subject to the marital power of her husband,
‘with the result that in the event of the insolvency of her husband, it will not
form part of the insolvent joint estate.’   It would be superfluous to repeat the
very full analysis by McLaren J in Badenhorst’s case of the authorities that

were relied upon in that case: it is sufficient to say that I agree with his
conclusion that those authorities do not provide cogent support for the
conclusion that was reached.  In Van Wyk v Groch en Andere 1968 (3) SA
240 (E) it was held that the separate property of a woman who was married
in community of property was immune from attachment in satisfaction of a
judgment obtained against her husband.  The ratio of that decision was
expressed as follows at 242C-D:
‘ Daar kan geen beginselrede bestaan waarom die uitsluiting van ‘n man se
maritale mag, ten aansien van spesifieke bemaakte eiendom deur ‘n testateur, nie
die eggenote ingelyks beveilig met betrekking tot sodanige eiendom nie.  Hieruit
volg dit, na my mening, dat die afsonderlike eiendom van ‘n getroude vrou ten
opsigte waarvan die maritale mag uitgesluit is, onvatbaar is vir beslaglegging deur
‘n skuldeiser van die man.’

If the judgment debt that was in issue in that case was incurred by the
husband as administrator of the joint estate (there is nothing in the judgment
to suggest that it was not) then in my view the decision was unsound.  As

was the decision in Oberholzer’s case, and for the same reason.  Both courts
appear to have overlooked the fact that the debt in issue was not the debt
merely of the husband but was a joint debt of the spouses.  The separate
property of the wife was not in truth being sought in satisfaction of the debt
of her husband (as was suggested in Van Wyk’s case at 242D and in
Oberholzer’s case) but was being sought to satisfy her own debt, albeit that
it was incurred by her husband in his capacity as administrator of the joint
estate.  In neither case were any cogent reasons proffered for why the
separate property was protected against what were in law the wife’s own
creditors.

[9]  The appellant also submitted that the Matrimonial Property Act has
had the effect of creating a separate estate comprising all property that is
excluded from the joint estate, and that that estate is protected against the

incursions of joint creditors of the spouses.  The result, according to that
submission, is that each estate (i.e. the joint estate and the separate estate) is
capable of having its own discrete creditors. There are indeed various
provisions of the Act that give recognition to the separate property of
spouses who are married in community of property (see sections 17, 18, 19
and the definition of ‘separate property’) but I do not think that implies the
creation of a novel entity that is capable of incurring discrete debts, or that is
protected from the normal consequences of the spouses’ indebtedness.
Indeed, the existence of such an entity would give rise to startling anomalies
for it would suggest that a debtor might be insolvent in relation to one estate
and not insolvent in relation to the other.  I do not think that the Act has
brought about that result.  It recognises the existence of separate property in
the relationship between the spouses inter se but I do not think it affects the
rights of third parties.  For so long as a spouse is a debtor in my view his or

her creditors may look to all the property of the debtor in satisfaction of the
debt and similarly upon insolvency all the debtor’s property is available to
his or her creditors.  In those circumstances I agree with the conclusion that
was reached in Badenhorst’s case and in the Court a quo.

The appeal is dismissed with costs.

__________________________

R NUGENT

JUDGE OF APPEAL

HARMS
JA )
CAMERON JA )
BRAND
JA )
HEHER       AJA )
CONCUR