LPF: Semester 2 Authorities
**I do not take credit for any knowledge expressed in this document, only the summary of notes and easy access to key points that I found important.
Bibliography at the end**
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
Property: Marriage
- Spouses married in community of property can sue each other for damages arising
from bodily injury (MPA s 18(b))
- when one of the spouses married in community of property is liable to a third party in
delict, the damages must be paid out of the guilty spouse’s separate property if they
have any (MPA section 19)
- spouses married in community of property could never sue each other in delict (Tomlin
v London and Lancashire Insurance Co Ltd) (such as defamation)
- Spouses married in community of property can only sue each other for damages arising
from bodily injury (MPA s 18(b))
- debts incurred by either spouse can be recovered from the joint estate. Delictual
damages paid to third parties are governed by MPA section 19
- In community of property: a spouse cannot alienate household effect without the
permission of his spouse (MPA 15(3)(a)). The other spouse remains the (joint) owner of
the object and can vindicate it using the rei vindicatio.
- If one spouse sells something to someone without informing the other and if the third
party is bona fide, they will qualify for protection in terms of MPA 15(9)(a). This means
that the other spouse’s consent to the transaction will be deemed and ownership of the
object will transfer to the third party
- If one spouse gave something to a male fide third party, the other spouse is not obliged to
pursue the item or to sue the third party in enrichment. The joint estate has suffered a loss
, (the value of the object) and the other spouse can choose to ask for an adjustment in
their favour to this amount when the joint estate is divided (MPA 15(9)(b))
- if one spouse alienates the household effects, the other spouse can recover possession of
these items using the mandament van spolie (Oglodzinski v Oglodzinski)
- ‘expensive non-recurring items’ such as cars (Whelan v Whelan) and grand pianos are
not considered household necessaries (Hahlo 1985: 204)
- Spouses married out of community of property must pay for the necessary expenses of
the household on a pro rata basis according to their means (Matrimonial Property Act 88
of 1984, s 23(2))
- For some important transactions which may seriously prejudice the interests of the other
spouse or the 3rd party, consent is required – sometimes in writing, with witnesses, and
sometimes must be given before the transaction (s 15(2) -15(8)).
- The spouses have equal powers to deal with the joint estate. The powers are those that
husbands had in the days of marital power (s 14)
- Usually, each spouse is free to perform any juristic act with regard to the joint estate
without the consent of the other spouse (s 15 (1)).
- But for some important transactions which may seriously prejudice the interests of the
other spouse or the 3rd party, consent is required – sometimes in writing, with witnesses,
and sometimes must be given before the transaction (s 15(2) ‐15(8)).
- Male fide third party doesn’t deserve protection:if third party knew very well that the
other spouse had not consented to donation (Bopape v Moloto; Visser v Hull)
- According to s 15(9)(a) the third party is bona fide if he or she does not know and cannot
reasonably know that the transaction is prohibited in terms of MPA s 15.
- the only circumstances in which spouses married in community of property can sue each
other in delict are those listed in MPA s 18(b)
- When determining whether an item or service is ‘necessary’ for a particular household,
the court will look at the household’s social status, their usual standard of living, and
their means (Reloomel v Ramsay)
- Spouses need written consent from the other spouse to: alienate or pledge any jewellery,
coins, stamps, paintings or similar assets in the joint estate that are held mainly as
investments. 15(2)(d)
- Section 15(9)(b) provides that, if a spouse performs a transaction listed in sections 15(2)
or 15(3) without the required consent, and the spouse who performs the transaction
knows that he or she would probably not get his or her spouse’s consent (or reasonably
ought to know this), and the joint estate suffers a loss as a result of the transaction, • then
the non-consenting spouse is entitled to an adjustment in his or her favour when the joint
estate is divided.
- In a putative marriage:
**I do not take credit for any knowledge expressed in this document, only the summary of notes and easy access to key points that I found important.
Bibliography at the end**
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
Property: Marriage
- Spouses married in community of property can sue each other for damages arising
from bodily injury (MPA s 18(b))
- when one of the spouses married in community of property is liable to a third party in
delict, the damages must be paid out of the guilty spouse’s separate property if they
have any (MPA section 19)
- spouses married in community of property could never sue each other in delict (Tomlin
v London and Lancashire Insurance Co Ltd) (such as defamation)
- Spouses married in community of property can only sue each other for damages arising
from bodily injury (MPA s 18(b))
- debts incurred by either spouse can be recovered from the joint estate. Delictual
damages paid to third parties are governed by MPA section 19
- In community of property: a spouse cannot alienate household effect without the
permission of his spouse (MPA 15(3)(a)). The other spouse remains the (joint) owner of
the object and can vindicate it using the rei vindicatio.
- If one spouse sells something to someone without informing the other and if the third
party is bona fide, they will qualify for protection in terms of MPA 15(9)(a). This means
that the other spouse’s consent to the transaction will be deemed and ownership of the
object will transfer to the third party
- If one spouse gave something to a male fide third party, the other spouse is not obliged to
pursue the item or to sue the third party in enrichment. The joint estate has suffered a loss
, (the value of the object) and the other spouse can choose to ask for an adjustment in
their favour to this amount when the joint estate is divided (MPA 15(9)(b))
- if one spouse alienates the household effects, the other spouse can recover possession of
these items using the mandament van spolie (Oglodzinski v Oglodzinski)
- ‘expensive non-recurring items’ such as cars (Whelan v Whelan) and grand pianos are
not considered household necessaries (Hahlo 1985: 204)
- Spouses married out of community of property must pay for the necessary expenses of
the household on a pro rata basis according to their means (Matrimonial Property Act 88
of 1984, s 23(2))
- For some important transactions which may seriously prejudice the interests of the other
spouse or the 3rd party, consent is required – sometimes in writing, with witnesses, and
sometimes must be given before the transaction (s 15(2) -15(8)).
- The spouses have equal powers to deal with the joint estate. The powers are those that
husbands had in the days of marital power (s 14)
- Usually, each spouse is free to perform any juristic act with regard to the joint estate
without the consent of the other spouse (s 15 (1)).
- But for some important transactions which may seriously prejudice the interests of the
other spouse or the 3rd party, consent is required – sometimes in writing, with witnesses,
and sometimes must be given before the transaction (s 15(2) ‐15(8)).
- Male fide third party doesn’t deserve protection:if third party knew very well that the
other spouse had not consented to donation (Bopape v Moloto; Visser v Hull)
- According to s 15(9)(a) the third party is bona fide if he or she does not know and cannot
reasonably know that the transaction is prohibited in terms of MPA s 15.
- the only circumstances in which spouses married in community of property can sue each
other in delict are those listed in MPA s 18(b)
- When determining whether an item or service is ‘necessary’ for a particular household,
the court will look at the household’s social status, their usual standard of living, and
their means (Reloomel v Ramsay)
- Spouses need written consent from the other spouse to: alienate or pledge any jewellery,
coins, stamps, paintings or similar assets in the joint estate that are held mainly as
investments. 15(2)(d)
- Section 15(9)(b) provides that, if a spouse performs a transaction listed in sections 15(2)
or 15(3) without the required consent, and the spouse who performs the transaction
knows that he or she would probably not get his or her spouse’s consent (or reasonably
ought to know this), and the joint estate suffers a loss as a result of the transaction, • then
the non-consenting spouse is entitled to an adjustment in his or her favour when the joint
estate is divided.
- In a putative marriage:
