Abstract

The Supreme Court of Appeal ruling in Vukeya v Ntshane 2022 2 SA 452 (SCA) (“Vukeya”) provides a useful lens through which to examine the ostensible protection that section 15 of the Matrimonial Property Act 88 of 1984 provides for the patrimonial interests of spouses married in community of property. Section 15(2) of the Act appears to provide powerful protection for the spouses’ interests in their immoveable property. However, this protection can be scuppered when an errant spouse transacts with a bona fide third party who qualifies for protection in terms of section 15(9)(a) of the Act. In the Vukeya ruling, the court applied a stringent test to assess whether the third party could reasonably have known that the contracting spouse lacked the required spousal consent. The third party was deemed to qualify for the legislative protection, in part because the information in the Deeds Registry was out of date. The note suggests that there should be better communication between the Department of Home Affairs and the Deeds Registry to avoid this kind of prejudice to married spouses. It is the responsibility of the government departments concerned to update their electronic data systems so that the objectives of the protective legislation (the Matrimonial Property Act and the Deeds Registries Act 47 of 1937) can be achieved in practice. The note argues further that section 15(9) of the Act does not provide a reasonable balance between protecting the interests of third parties and the interests of non-consenting spouses. It suggests an amendment to the legislation to provide a more equitable balance by incorporating some aspects of the common law actio Pauliana.