THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case no: 184/2012
In the matter between:
Ockie Strydom

Appellant
and
Engen Petroleum Limited

Respondent

Neutral citation: Strydom v Engen Petroleum Limited (184/2012) [2012]
ZASCA 187 (30 November 2012)
Coram:
HEHER, TSHIQI et WALLIS JJA et SWAIN et SALDULKER
AJJA
Heard:
21 NOVEMBER 2012
Delivered:  30 NOVEMBER 2012
Summary: Suretyship – validity – ss 15(2)(h) and 15(6) of the Matrimonial
Property Act 88 of 1984.

ORDER

On appeal from: North Gauteng High Court, Pretoria (Southwood J, sitting as
court of first instance):
The appeal is dismissed with costs.

JUDGMENT

WALLIS JA (TSHIQI JA et SWAIN et SALDULKER AJJA concurring))
[1] Soutpansberg Petroleum (Pty) Ltd (Soutpansberg) distributed petroleum
products on behalf of the respondent, Engen Petroleum Limited (Engen), from
depots in Musina and Louis Trichardt in Limpopo. It was provisionally wound
up on 13 November 2006 and a final winding-up order was made on
12 November 2007. At that time it owed some R25 million to Engen. Mr
Strydom, the appellant, was previously a director of Soutpansberg and, on 15
December 2004, had executed an unlimited deed of suretyship in favour of
Engen, binding himself as surety for and co-principal debtor with Soutpansberg
for the due and punctual payment of all moneys that were then or might
thereafter be owing by Soutpansberg to it. With a view to recovering the amount
owed to it, Engen instituted motion proceedings against Mr Strydom and
another surety, a Mr Louw, in the North Gauteng High Court, Pretoria. The
application was heard by Southwood J who granted judgment against Mr
Strydom and Mr Louw (the latter having not defended the proceedings) in the

amount of R25 311 432.21, together with interest and costs of suit on the scale
as between attorney and client.

[2] Mr Strydom opposed Engen's application on two grounds. First, he
contended that Engen had not proved the amount of its claim. Second, he said
that he was married in community of property and that his wife had refused her
consent to his signing the deed of suretyship. Engen was not in a position to
dispute this and did not do so. He contended that the deed was therefore invalid
by virtue of the provisions of s 15(2)(h) of the Matrimonial Property Act 88 of
1984 (the Act). Southwood J rejected both defences, but gave leave to appeal to
this court in relation to the second defence only.

[3] Under the Roman Dutch common law, marriages were ordinarily in
community of property and the husband was vested with the marital power.
This enabled the husband to deal with all the assets of the joint estate to the
exclusion and without the consent of his wife. That meant that the husband
could incur debts and bind the joint estate to those debts irrespective of the
views or interests of his wife. Such a patriarchal regime is of course intolerable
under our present constitutional dispensation. Even under its oppressive
predecessor it was regarded as unacceptable and the provisions of chapter III of
the Act were directed at changing it.

[4] The Act did not abolish the institution of marriage in community of
property, where the assets of the respective spouses fall into a joint estate.
Instead s 11 of the Act abolished the marital power and, in terms of s 12, did
away with the restrictions that the husband‟s marital power had placed on the

capacity of a wife to contract and litigate. The resultant consequences of
marriages in community of property were set out in chapter III of the Act. In
construing those provisions it is necessary for us to be conscious that we now
live in a society where everyone is equal before the law and has the right to
equal protection and benefit of the law, and unfair discrimination on the
grounds of gender, sex and marital status has been outlawed.

[5] Under the new legal regime governing marriages in community of
property both spouses have 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 (s 14). They are each vested with
the powers that previously vested in the husband alone. However, those powers
are not entirely unfettered. The Act recognises that, if they were, either spouse
would be vulnerable to suffering financial loss in the event of their partner
making ill-judged or profligate decisions in relation to their financial affairs.
Accordingly, in s 15, a number of limitations are put in place on the exercise of
this power.

[6] The starting point under s 15(1) is that either 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. That right is, however, made
subject to the limitations contained in ss 15(2) and (3), which impose the
requirement of the consent of the other spouse, written in the cases described in
s 15(2), but not in the cases described in s 15(3), in order to undertake certain
financial transactions. It is with one of these, the prohibition on the one spouse
binding him or herself as surety, that this case is concerned.

[7] It is appropriate at this stage to set out the relevant statutory provisions.
They are as follows:
(1) Subject 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.
(2) Such a spouse shall not without the written consent of the other spouse –

(h) bind himself as surety.

(6) The provisions of paragraph … (h) of subsection (2) do not apply where an act
contemplated in those paragraphs is performed by a spouse in the ordinary course of his
profession, trade or business;‟

[8] These provisions were considered by this court in Amalgamated Banks of
South Africa Bpk v De Goede.1 There two members, who were employed
respectively as a teacher and a clerk, each held a 12 per cent interests in a close
corporation. The controlling interest was held by a man who, in the case of the
teacher, was his father and, in the case of the clerk, was his father-in-law. The
two younger men played no day to day role in the operation of the close
corporation. They had, however, contributed small amounts to the close
corporation as their members‟ interests and by way of loans. In order to finance
the business activities of the close corporation a loan was sought from the bank
and it required all three men to sign suretyships as security for the loan. When
the close corporation went into liquidation the bank sued the teacher and the
clerk on their suretyships to recover what was owing to it and were met with the
defence that these were invalid by reason of s 15(2)(h) of the Act.

1 Amalgamated Banks of South Africa Bpk v De Goede & ŉ ander 1997 (4) SA 66 (A).

[9] This court rejected that defence on the grounds that, in accordance with
the provisions of s 15(6), the suretyships had been furnished by them in the
ordinary course of their business. It pointed out that in enacting the legislation
the legislature must have been aware that the limitations in ss 15(2) and (3) had
the potential to interfere with the operation of businesses, trades or professions
and that the requirement of consent in these cases would unnecessarily interfere
with and restrict the ordinary conduct of business.2 One can readily see why that
might be the case. For example, if an attorney who was a member of a
partnership, was married in community of property and the partnership required
an overdraft, wished to purchase business premises or conclude agreements to
acquire office machinery, which agreements would be subject to the provisions
of the National Credit Act 34 of 2005, their spouse‟s consent would be required
in order for the partnership to enter into these ordinary business transactions. To
impose such a limitation would seriously hamper the ability of a spouse married
in community of property to function effectively in that profession. As a result
the protection the statute provides against unilateral conduct by one spouse that
may detrimentally affect the joint estate is not absolute.3

2 At 74F-I where F H Grosskopf JA said: „Waar 'n gade egter in die gewone loop van sy beroep, bedryf of
besigheid optree, kan die vereiste van toestemming die normale handelsverkeer onnodig belemmer en beperk.
Dit was vermoedelik om daardie beswaar die hoof te bied dat die Wetgewer in art 15(6) bepaal het dat die
toestemming van die ander gade nie vereis word waar die gemelde regshandelinge in die  gewone loop van 'n
gade se beroep, bedryf of besigheid verrig word nie. Borgstelling is een van daardie regshandelinge gemeld in
art 15(6). Artikel 17(1)(c) bevat 'n soortgelyke bepaling. Volgens art 17(1) mag litigasie deur of teen 'n gade
getroud in gemeenskap van goed normaalweg nie sonder die skriftelike toestemming van die ander gade ingestel
of bestry word nie, behalwe geregtelike verrigtinge “(c)  ten aansien van 'n aangeleentheid wat betrekking het op
sy beroep, bedryf of besigheid”.

3 At 74I, F H Grosskopf JA said: „Dit is dus duidelik dat die beskerming teen eensydige optrede van ŉ gade wat
die gemeenskaplike boedel nadelig kan raak, nie volkome is nie.‟

[10] Accordingly s 15(6) provides that spousal consent in relation to most of
the transactions in s 15(2) and (3) is not required where those transactions are
entered into in the ordinary course of a spouse‟s business, trade or profession.
Where a business is carried on through an incorporated vehicle such as a
company or close corporation, or even an unincorporated vehicle, such as a
partnership or trust, the question to be answered is whether the surety‟s
involvement in that business is his or her business and whether the execution of
the suretyship was in the ordinary course of the surety‟s business, not the
business of the company, close corporation, partnership or trust.4 It may not be
the surety‟s business if they are a mere salaried employee, having no
commercial interest in the business‟ success or failure. However, a person who
holds a number of non-executive directorships that are the principal source of
their income may well when executing a deed of suretyship for one of those
companies be acting in the ordinary course of their business.

[11] This illustrates the fact that whether a deed of suretyship was executed in
the ordinary course of business is, as Southwood J held it to be in this case, a
question of fact. That is how this court treated it in De Goede.5 It rejected a
contention by the sureties that their interest in the close corporation was merely
a paper interest. It pointed out that under the Close Corporations Act 69 of 1984
they both owed a fiduciary duty to the close corporation and both were vested
with powers of management in respect of its affairs. They had involved
themselves in those affairs by investing money to provide it with capital and by
being parties to the conclusion of the loan agreement with the bank. Their
intention was to profit from their participation in the affairs of the close

4 At 77A-B.
5 And how it was treated in Tesoriero v Bhyjo Investments Share Block (Pty) Ltd 2000 (1) SA 167 (W) at 173A-
175E.

corporation. They were therefore conducting business through the vehicle of the
close corporation and the execution of the deeds of suretyship was done in the
ordinary course of that business.

[12] That was also the approach of Hurt J in Investec Bank Ltd & another v
Naidoo & others.6 That case involved a property syndication, where 50
investors, through the medium of a private company, purchased a property for
redevelopment and resale on a sectional title basis. The acquisition was funded
by way of a loan from the plaintiff bank repayment of which was secured inter
alia by individual deeds of suretyship from the investors. When the scheme
collapsed and the bank sued the sureties 14 of them raised a defence under
s 15(2)(h) of the Act that the deeds of suretyship were invalid because their
wives had not consented to their execution. Hurt J held that the question
whether they had been granted in the ordinary course of the sureties business
„must be judged objectively with reference to what is to be expected of
businessmen (or, these days, businesswomen)‟. He stressed the importance
attached in De Goede to the fact that the sureties‟ interest in the close
corporation was an investment and that the suretyship was given to enable that
investment to succeed by providing it with the necessary funding via a loan to
pay operating expenses. In those circumstances, even though the shareholders
were not directors and were not managing the venture, he held that the only
difference in the two cases was that he was dealing with shareholders and not
members of a close corporation. Given the nature of the scheme; the obligation
of the shareholders to make capital contributions; the fact that they were
consulted on the purchase of the property at a higher price than originally
contemplated and that the corporate form was adopted for reasons of business
convenience in relation to what was in substance a partnership or joint venture,

6 Investec Bank Ltd & another v Naidoo & others (unreported), Case No 9640/98 (DCLD).

he held that the deeds of suretyship were executed in the ordinary course of the
business of the sureties.

[13] The argument before us on behalf of the appellant proceeded on the
footing that, once Mr Strydom said that he was married in community of
property and that his wife had not consented to his executing the deed of
suretyship,7 an onus rested on Engen to prove that he had nonetheless bound
himself as surety in the ordinary course of his business. Whilst in my view the
evidence before the court demonstrated that this was indeed the case the
approach was in my view wrong. The reason is that it treated the provisions of
s 15(2) as distinct from s 15(6). However, that is not appropriate as a matter of
interpretation, which requires statutes to be construed in the light of their
context not as isolated fragments of words.8  The requirement that spousal
consent be obtained before concluding certain defined financial transactions as
set out in ss 15(2) and (3) of the Act cannot be read in isolation. Section 15(6)
says expressly that in respect of certain of those transactions, including binding
oneself as surety, section 15(2) does not apply if the act in question is
performed in the ordinary course of the spouse‟s business, trade or profession.
What one knows therefore is that ss 15(2) and (3) operate in respect of some,
but not other, financial transactions depending on whether or not they are
performed in the ordinary course of the spouse‟s business, trade or profession.
Accordingly it does not suffice for a person seeking to rely on s 15(2)(h) to say
that they were married in community of property and that their spouse did not
consent to the transaction to bring themselves within the ambit of the section.
That is because the section only operates in certain limited circumstances. If

7 He in fact said that she refused to agree, something Engen hardly surprisingly, as it was not privy to their
matrimonial communications, did not dispute.
8 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) paras 18 and 19.

they wish to rely upon it they must bring themselves within the full range of
operation.

[14] The fallacy underlying the appellant‟s approach is not far to seek. It lay in
a failure to recognise that in substance, if not in form, s 15(6) is a proviso to the
relevant parts of ss 15(2) and 15(3). Had it been universally applicable to all
transactions dealt with in those sections, no doubt they would have commenced
with the qualification that it embodies, in words such as „Save where the act
contemplated in the following paragraphs is performed by a spouse in the
ordinary course of his profession, trade or business‟. However, that was not
possible as a matter of drafting because s 15(6) does not, for example, apply in
relation to the transactions in sub-paras (a) (d) and (e) of s 15(2). Hence it is
contained in a separate sub-section. That does not, however, change its essential
character. Use of the familiar form „Provided that …‟ is not necessary to
constitute a provision in a statute or contract a proviso.9 Any form of words that
serves to narrow the scope of another provision by qualifying its scope of
operation or excepting from it something that would otherwise fall within it is
treated as a proviso.

[15] The correct approach to the interpretation of a proviso and the fallacies
that arise in respect thereof was identified in the following passage from the
judgment of Botha JA in Mphosi v Central Board for Co-operative Insurance
Ltd:10

9 See by way of example the judgment of Nicholas AJA in this court in Hira v Booysen 1992 (4) SA 69 (A) at
79F-80D.
10 Mphosi v Central Board for Co-operative Insurance Ltd 1974 (4) SA 633 (A) at 645C-F.

„„This argument altogether overlooks the true function and effect of a proviso. According to
Craies, Statute Law, 7th ed., at p. 218 –
"the effect of an excepting or qualifying proviso, according to the ordinary rules of
construction, is to except out of the preceding portion of the enactment, or to qualify
something enacted therein, which but for the proviso would be within it; and such proviso
cannot be construed as enlarging the scope of an enactment when it can be fairly and properly
construed without attributing to it that effect".
In R. v Dibdin, 1910 P. 57, Lord FLETCHER MOULTON at p. 125, in the Court of Appeal,
said –
"The fallacy of the proposed method of interpretation (i.e. to treat a proviso as an independent
enacting clause) is not far to seek. It sins against the fundamental rule of construction that a
proviso must be considered in relation to the principal matter to which it stands as a proviso.
It treats it as if it were an independent enacting clause instead of being dependent on the main
enactment. The Courts … have frequently pointed out this fallacy, and have refused to be led
astray by arguments such as those which have been addressed to us, which depend solely on
taking words absolutely in their strict literal sense, disregarding the fundamental
consideration that they appear in a proviso."‟

[16] Once it is recognised that it was for Mr Strydom to demonstrate that he
was entitled to the protection of s 15(2), and that, in order to do so, he was
required to show that he did not bind himself as surety in the ordinary course of
his business, it is immediately apparent that he failed dismally to do so. He said
that he was a businessman, but other than his involvement in Soutpansberg, he
mentioned no other business in which he was involved. He was admittedly a
director of Soutpansberg, but he sought to distance himself from this by saying
that he was principally involved with the marketing of the product in the
Limpopo area and not intimately involved in the day to day running of the
business. In the heads of argument on his behalf it was sought to distance
himself still further by saying that he was „exclusively responsible for the
marketing of the principal debtor in a specific area‟. However, these allegations

take on a different colour once it is recognised, as appears from the admitted
contracts between Soutpansberg and Engen on which the relationship was built,
that Soutpansberg‟s business was the distribution and sale of Engen‟s products
in Limpopo through its depots in Musina and Louis Trichardt. The entire
business was the sale of those products. Accordingly the marketing of the
business was the heart and soul of its operations. Apart from that there was only
the logistical side of delivering product to customers and administration. Far
from being involved to a limited extent Mr Strydom worked at the very core of
the business.

[17] Then there was Mr Strydom‟s coy silence on a number of key issues. He
was a director of the business. It was a small private company and it is unusual
for such companies to have directors who have no share in the company. Yet
Mr Strydom did not claim not to be a shareholder. An important part of the
agreements that were concluded between Soutpansberg and Engen was the
agreement in December 2004 in terms of which Engen required the directors of
Soutpansberg to sign deeds of suretyship for the company‟s indebtedness to
Engen. The natural inference underlying this request is that the directors were
also the persons having a financial stake in the company, in other words, its
shareholders. Yet Mr Strydom merely admits the agreement and his signature to
the deed of suretyship without indicating that he signed it on some other basis.
Had he been a mere employee given token status as a director that was the
obvious thing to say, yet he remained silent. Significantly, on the deed of
suretyship, immediately beneath his signature and a little to the left, is a line,
under which appear the words „CONSENT BY SPOUSE (TO THE EXTENT
APPLICABLE). Entered on that line is the acronym „N/A‟ meaning „not
applicable‟. The central issue in this case is whether that was so yet he does not
explain that insertion. Various possibilities were postulated in argument, but

these are mere speculation. The document is admitted and this is unexplained.
That is a glaring failure if in truth spousal consent was necessary.

[18] Furthermore, annexed to the application papers was the judgment by
Mynhardt J in the application for the winding-up of Soutpansberg. That
recorded that the opposition by the company was contained in opposing
affidavits and that Mr Strydom had signed a confirmatory affidavit.
Significantly the judgment reflects that at the time of the application Mr
Strydom had a debit loan account with the company in an amount in excess of
R3 million. He said nothing about this. Nor did he say anything about the
circumstances in which he came to sign directors‟ resolutions that resulted in
Soutpansberg waiving claims against Engen and varying the terms of the sales
and distribution agreement. He was silent also on his presence at meetings
between Engen and Soutpansberg reflected in the letter the company‟s attorneys
addressed to Engen in October 2006 that led to the final rupture in relations.
Any proper explanation of his involvement in Soutpansberg demanded that he
deal with issues such as these yet he chose to remain silent. In this case his
silence speaks volumes.

[19] The reality of the matter is that the only person who could testify to these
matters was Mr Strydom himself. He could explain how he came to be involved
in Soutpansberg; why he was appointed a director and why his activities in
relation to its operations did not constitute his business. He chose not to do so in
the face of an explicit statement on behalf of Engen that he had bound himself
as surety in the ordinary course of his business. That was said in the replying
affidavit in response to his invocation of s 15(2) and in his supplementary
answering affidavit delivered some eight months later he chose not to deal with

it. The obvious inference is that he was unable to do so. Where matters are
within the exclusive knowledge of one party less evidence is required to be
adduced by the other party to discharge the onus of proof on a point.11 And
sometimes the silence of a witness on a vital point within that person‟s
knowledge is as telling as anything that may be said from the other side.

[20] Even had the onus of proving that Mr Strydom had bound himself as
surety in the ordinary course of his business rested on Engen there would still
have been a need for Mr Strydom to give evidence to rebut that suggestion.
There was certainly sufficient evidence in the nature of the business, Mr
Strydom‟s position as the director in charge of the key area of the company‟s
operations, the fact that he signed the deed of suretyship and, as a result of his
directorship, was clearly aware of the nature of the company‟s relationship with
Engen and familiar with the contractual arrangements between Soutpansberg
and Engen to require him to explain why he had not been acting in the course of
his business. That he failed to do. Accordingly, even if the onus had rested on
Engen it was discharged.

[21] That conclusion renders it unnecessary to consider some other matters
that were canvassed in argument and in particular the impact of s 15(9) which
reads:
„(9) When a spouse enters into a transaction with a person contrary to the provisions of
subsection 2 … of this section …, and –

11 Union Government (Minister of Railways) v Sykes 1913 AD 156 at 173-4; Ex parte The Minister of Justice: In
re R v Jacobson & Levy 1931 AD 466 at 479 where reference is made to „the nature of the case and the relative
ability of the parties to contribute evidence on that issue‟. Hasselbacher Papier Import and Export (Body
Corporate) & another v MV Stavroula 1987 (1) SA 75 (C) at 79A-D.

(a) that person does not know and cannot reasonably know that the transaction is being
entered into contrary  to those provisions or that order, it is deemed that the transaction
concerned has been entered into with the consent required in terms of the said subsection (2)
…;
(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) … 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 joined estate.'
It is possible that this section might have come into play in different
circumstances but as the case can be resolved without needing to deal with it,
the better course is to say nothing in regard to its meaning and effect. Any such
statement would be obiter and that should if possible be avoided.

[22] My brother Heher, whose imminent retirement is a source of regret to his
colleagues on this court, takes a different view of the case to mine. He would
place the onus on Engen on the basis that it was obliged to prove that it had a
legally enforceable deed of suretyship. I respectfully differ. A person relying on
a deed of suretyship need show only that it was executed by a person having full
legal capacity in accordance with the requirements of section 6 of the General
Laws Amendment Act 50 of 1956. It is no part of their cause of action to allege
and prove that the surety was either not married in community of property, or, if
they were, that their spouse had consented to the execution of the deed, or that
such consent was unnecessary because it was executed in the ordinary course of
the surety‟s profession, trade or business. However, at the end of the day that is
neither here nor there, because my colleague holds that Mrs Strydom was a
necessary party to this litigation and that her non-joinder has the effect that
Engen is non-suited until she has been joined.

[23] Again I find myself in respectful disagreement. Joinder is necessary in the
circumstances explained by Corbett J, with his customary lucidity, in United
Watch & Diamond Co (Pty) Ltd & others v Disa Hotels Ltd & another.12 He
said:
„It is settled law that the right of a defendant to demand the joinder of another party and the
duty of the Court to order such joinder or to ensure that there is waiver of the right to be
joined (and this right and this duty appear to be co-extensive) are limited to cases of joint
owners, joint contractors and partners and where the other party has a direct and substantial
interest in the issues involved and the order which the Court might make (see Amalgamated
Engineering Union v Minister of Labour, 1949 (3) SA 637 (AD); Koch and Schmidt v Alma
Modehuis (Edms.) Bpk., 1959 (3) SA 308 (AD). In Henri Viljoen (Pty.) Ltd. v Awerbuch
Brothers, 1953 (2) SA 151 (O), HORWITZ, A.J.P. (with whom VAN BLERK, J., concurred)
analysed the concept of such a 'direct and substantial interest' and after an exhaustive review
of the authorities came to the conclusion that it connoted (see p. 169) –
“... an interest in the right which is the subject-matter of the litigation and ... not merely a
financial interest which is only an indirect interest in such litigation”.
This view of what constitutes a direct and substantial interest has been referred to and
adopted in a number of subsequent decisions‟.
Corbett J‟s exposition has been cited countless times as a correct statement of
our law including in judgments of this court.13

[24] On that basis the question is whether Mrs Strydom has a direct and
substantial interest in the subject matter of this litigation, that is, the suretyship
and its validity, or whether her interest is merely a financial interest that is only
indirect and therefore does not require her joinder. The answer is clear. She has
no interest in the suretyship or its validity. She is not a party to it and according
to her husband she was opposed to its execution. The fact that he went ahead
and executed it notwithstanding her disapproval is a potential source of

12 United Watch & Diamond Co (Pty) Ltd & others v Disa Hotels Ltd & another1972 (4) SA 409 (C) at 415E-H.
13 The most recent is National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 85, fn 72.

financial prejudice to her and undoubtedly a source of matrimonial discord.
However, that is not a direct and substantial interest in the issues in this case. It
is an interest that exists only by virtue of the fact that she and Mr Strydom are
married in community of property. I accordingly disagree with the proposition
stated in para 43 of my colleague‟s judgment.

[25] The consequence of my colleague‟s judgment would be that in every case
where the effect of a judgment, or more accurately the execution of a judgment,
would be to diminish the joint estate, joinder of the spouse who was not party to
the underlying transaction or dispute, would be essential in order that they could
protect their interest in the joint estate. Whilst the proposition in para 43 of his
judgment is in terms confined to suretyship, I can see no reason why it would
not apply in any situation where a claim against one spouse married in
community of property would, if successful, detrimentally affect the joint estate.
On my colleague‟s reasoning, particularly that in the final sentence of para 45 of
his judgment, the other spouse would have to be joined to enable them to
protect the joint estate and their interest in it. Not only has that never been our
law, but it would fly in the face of the constitutional guarantee of equality
between husband and wife by forcing them to litigate together in all situations
where the joint estate could be affected by the outcome of the litigation.
Sections 15(5) and 17(1) of the Act make it clear that this is not a requirement.
In relation to matters relating to a spouse‟s profession, trade or business that
spouse is free to institute or defend litigation without obtaining the consent of
their spouse. This provision would be entirely undercut by a requirement that
the other spouse must be joined in that litigation.

[26] For those reasons the appeal is dismissed with costs.

M J D WALLIS
JUDGE OF APPEAL
HEHER JA (dissenting):
[27] This appeal concerns the application of s 15 of the Matrimonial Property
Act 88 of 1984 which provides, in so far as here relevant, as follows:
„(1)
Subject to the provisions of [subsection (2)] … 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.
(2)
Such a spouse shall not without the written consent of the other spouse –
…
(h)
bind himself as surety.
…‟

[28] The provisions of [paragraph (h)] of subsection (2) do not apply where an
act contemplated in [that paragraph] is performed by a spouse in the ordinary
course of his profession, trade or business.‟

[29] The respondent („Engen‟) a manufacturer, marketer and distributor of fuel
and chemical products concluded a sales and distribution agreement with
Soutpansberg Petroleum (Pty) Ltd on 3 December 2004 which amplified earlier
contractual arrangements between the parties. Clause 2.10 provided that an
undertaking of suretyship for the obligations of the company would be signed
by all its directors. The appellant was a director and he duly signed the required

undertaking on 15 December 2004 as did his fellow director, Mr Nico Louw.
(Another director did not, but that factor is irrelevant to the issues in this
appeal.)

[30] Soutpansberg Petroleum (Pty) Ltd was provisionally wound up upon the
application of the respondent on 13 November 2006, the order being made final
on 12 November 2007.

[31] In February 2009 the respondent applied on motion to the North Gauteng
High Court, Pretoria for an order directing the appellant and Louw jointly and
severally to pay to it the sum of R25 311 432.21 together with mora interest on
that amount and costs on the attorney and client scale. This amount, the
respondent alleged, was due and payable to it by the company and accordingly
owed by the sureties.

[32] The application was opposed by the appellant. He essentially raised two
defences: that the respondent had refused to furnish him with particulars that
established any indebtedness on the part of the company; in consequence he
denied that it was a debtor of the respondent; and that he, the appellant, was
married in community of property when he signed the deed of suretyship and
his spouse had refused to consent to him doing so, with the consequence that his
undertaking had been without force and effect by reason of the provisions of
s 5(2) of the Act.

[33] The court that heard the application (Southwood J) rejected both grounds.
It ordered the relief as claimed. However it granted leave to appeal to this Court
„in respect of only the [appellant‟s] defence based on the provisions of [the
Act].‟

[34] The onus in the application proceedings rested on the present respondent
throughout. That included the burden of establishing that it relied upon a legally
enforcible undertaking of suretyship. In the context of s 15(2) that required that
Engen prove, on a balance of probabilities, that the appellant‟s spouse had
consented in writing to him incurring the obligations of a surety (which, it was
common cause, she had refused to do) or that it exclude the operation of
ss (2)(h) by proving that the appellant gave the undertaking in the ordinary
course of his business. (There was no question of practising a profession or
carrying on a trade in this instance.)

[35] Whether Engen knew when it instituted the proceedings that the appellant
was married in community is unclear. I shall assume it did not and that it only
became aware of that status when he raised the statutory defence in his
answering affidavit. It follows that it was only then that the aspect of whether
the appellant had acted in the ordinary course of business became relevant. The
generalised allegations in the founding affidavit – that the appellant was at all
material times a director of Soutpansberg Petroleum (Pty) Ltd and that he
entered into the suretyship in that capacity, and the fact that the appellant, as a
director, signed a resolution to conclude a waiver of claims with the respondent
– therefore contribute little or nothing to the elucidation of an issue that had not
then become apparent.

[36] In the answering affidavit, the appellant deposed:
„5.
Although I was a director of Soutpansberg, I was never intimately involved in the day
to day running of Soutpansberg. I was almost exclusively involved with the marketing on
behalf of Soutpansberg in the Limpopo area.‟
This was purely an answer to the allegations in the founding affidavit. It was not
directed to the applicability of s 15(6) for the simple reason that Engen had not

by then pleaded reliance on that section and there is no indication that the
appellant was aware of its existence or its terms.

[37] The statutory defence was raised by the appellant in the following terms:
„I married Hendrina Petronella Jacomina Steyn Crouse on 5 April 1980. We are married in
community of property. My wife did not provide her consent to the suretyship, as required in
terms of Section 15(2) of the Matrimonial Property Affairs Act, 88 of 1984. She specifically
refused to sign the suretyship. As a result thereof the deed of suretyship is invalid.‟

[38] In its replying affidavit Engen admitted that the appellant was a director
of Soutpansberg but denied in bare terms the remainder of the allegations in
para 5 of the answering affidavit. As to para 11 the respondent contended itself
with stating that the appellant was, at the time of signature of the deed, a
director of Soutpansberg „and signed the deed in the ordinary course of [the
appellant‟s] trade and business as well as in the ordinary course of business of
the principal debtor.‟

[39] The learned judge a quo quite correctly held that whether the appellant
signed the undertaking in the ordinary course of his business depended on the
facts.

[40] Southwood J summarised the facts that he regarded as relevant as
follows:
„The first respondent was a director of Soutpansberg when he signed the deed of suretyship.
He describes himself as a businessman and states that he was almost exclusively involved in
the marketing on behalf of Soutpansberg in the Limpopo area. He refers to no other business
in which he was involved. On the information in the affidavits it appears that the directors
were all actively involved in the conduct of Soutpansberg‟s business and in reality conducted
business through the vehicle of the company. It appears that when the liquidation proceedings
commenced the directors all owed Soutpansberg large amounts on loan account: in the case

of the first respondent this was R3 065 251. When the first respondent signed the deed of
suretyship he did so because the applicant had agreed to increase Soutpansberg‟s credit limit
to R21,5 million and in return required deeds of suretyship signed by the directors, something
which had not been required before.‟
He found on the strength of these „facts‟ that the appellant signed the deed in
the ordinary course of his business.

[41] I have serious doubts whether, upon a proper application of the principles
stated in cases such as Radebe v Eastern Transvaal Development Board 1988
(2) SA 785 (A) at 793C-G and Minister of Land Affairs and Agriculture v D &
F Wevell Trust 2008 (2) SA 184 (SCA) at 200C-E, Engen set up sufficient facts
to enable the court to decide in its favour that it had brought its case within the
exception for which s 15(6) provides. However, for the reasons which follow, I
find it unnecessary to pronounce finally on that question.

[42] When the appeal commenced the court requested counsel to address it as
to whether Mrs Strydom, to whom (it was not in dispute) the appellant was
married in community of property at the date on which he signed the
undertaking of suretyship in favour of Engen, was a necessary party to the
proceedings in the court a quo, and should, therefore, have been joined as a
respondent in the application.14 Having heard counsel and considered the matter
further, I am persuaded that she was indeed such a party and that it is required
of this Court to make an order which addresses that conclusion: Amalgamated
Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 663; Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd 2004 (2) SA 353 (W) para 13.

14 There was no indication in the record on appeal that Mrs Strydom had been notified of the application or the
relief claimed in it.

[43] In my view the applicable principles can be stated thus in relation to the
proceedings brought by Engen:
When a person is sued for payment of an indebtedness allegedly arising from an
undertaking of suretyship signed by that person and he or she was at the time of
giving the undertaking married in community of property, the spouse to whom
he or she was then married has a material or direct and substantial interest in the
relief claimed such as to confer on that spouse the right to be joined in the
proceedings and conversely the party suing is obliged to join that spouse unless
he or she has waived that right.

[44] The question of joinder does not depend on the nature of the subject-
matter of the suit but on the manner in which, and the extent to which, the
court‟s order may affect the interests of third parties: Amalgamated Engineering
Union at 657. That notwithstanding, where there exists a joint financial or
proprietary interest, a „vermoënsbelang‟, joinder of a person sharing that interest
is insisted upon: Morgan & Another v Salisbury Municipality 1935 AD 167 at
171; Kock & Schmidt v Alma Modehuis (Edms) Bpk 1959 (3) SA 308 (A) at
318F.

[45] The debts incurred by a spouse married in community of property are
(subject to the operation of s 15 of the Matrimonial Property Act 88 of 1984)
the joint debts of the common estate, the spouses are joint debtors, the debts are
paid out of the estate and execution can be levied against it in the event of non-
payment: De Wet NO v Jurgens 1970 (3) SA 38 (A) at 47D-F. It follows that
any judgment obtained by a creditor in Engen‟s position could not be carried
into effect without prejudicing the financial interests of both spouses.

[46] Moreover a consideration of the purpose and terms of s 15 shows that a
spouse in the position of Mrs Strydom possesses a legal interest in the relief

claimed. Section 15(2)(h) enacts a prohibition against a husband or wife married
in community of property undertaking the obligations of a surety without the
consent of his or her spouse. The purpose is plainly to protect both spouses
against the unilateral improvidence of one of them. Each spouse has a material
interest in the consequences of the prohibition. Neither is deprived of asserting
that interest unless and until the creditor seeking to enforce an otherwise
prohibited act brings that act within the scope of the exception for which s 15(6)
provides (in accordance with the general principle that he or she who asserts
must prove: Pillay v Krishna 1946 AD 946 at 951; Tooth & another v Maingard
and Mayer (Pty) Ltd 1960 (3) SA 127 (N) at 134-5). I agree with Kirk-Cohen J,
in Amalgamated Bank of SA Bpk v Lydenburg Passasiersdienste BK 1995 (3)
SA 314 (T) at 322 that „‟n borgakte deur „n gade aangegaan waar subarts (5) en
(6) nie van toepassing is nie is nietig‟.Just as either spouse has the right to assert
his or her interest in the prohibition, so he or she has an equivalent right to resist
a creditor‟s resort to s 15(6) in order to sustain the benefit of the prohibition. To
refuse either spouse his or her right in this regard would be to deprive that
spouse of the means to protect his interest in the joint estate which the statute
guarantees. To find that it is unnecessary for the creditor to give notice to and
join the innocent spouse in proceedings in which s 15(6) is invoked by that
creditor would tend to the same deprivation.

[47] Section 15(5) provides:
„Where a debt is recoverable from a joint estate, the spouse who incurred the debt or both
spouses jointly may be sued therefor, and where a debt has been incurred for necessaries for
the joint household, the spouses may be sued jointly or severally therefor.‟
Although the general operation of this provision may permit the recovery of
debts from a joint estate without joinder of both spouses: Zake v Nedcor Bank
Ltd & another 1999 (3) SA 767 (SECLD), it should not be so interpreted as to

avoid the requirement of joinder when the issue is whether a spouse enjoys the
protection of s 15(2) in relation to one of the prohibited acts.

[48] Section 15(9) provides:
„(9)
When a spouse enters into a transaction with a person contrary to the provisions of
subsection (2) or (3) of this section, or an order under section 16 (2), and-
…
(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),or that the power concerned has
been suspended, as the case may be, 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.‟
I do not think this provision detracts from the necessity of joining an affected
spouse. It operates only once a joint estate has suffered loss, ie subsequent to
judgment, and provides simply for an adjustment if and when a division of the
joint estate takes place. There is no necessary implication in the section that it
ousts the ordinary right of a spouse to take steps to protect the joint estate
against the contingency of the loss referred to by resisting proceedings instituted
by a creditor.

[49] I find therefore that the appellant‟s wife possessed an interest that was
both financial and direct and substantial (as that phrase is used in the authorities
cited) in the relief claimed by Engen which required that Engen join her as a
party to the proceedings. Without such joinder any judgment which Engen
obtained was ineffective to bind the joint estate.

[50] I would therefore uphold the appeal with costs, set aside the order of the
court a quo, and direct that Engen take steps to join the appellant‟s wife at the
time of signing the undertaking of suretyship15 as a respondent in the

15 The record discloses nothing about her present status.

application on appropriate terms (which it is unnecessary to spell out here since
this is a minority judgment).

_________________
J A HEHER
JUDGE OF APPEAL

APPEARANCES

APPELLANT:

N G D Maritz SC (with him A P J Els)

Schabort Incorporated, Pretoria

Symington & De Kok, Bloemfontein

RESPONDENT:
P L Carstensen

Lanham-Love Attorneys, c/o Gerber Attorneys, Pretoria

McIntyre & Van der Post, Bloemfontein