Case Summaries
Family Law (Law of Persons and Family)
PVL1008H
Lecturer: I Ahmed
, Case Summaries – LPF – Family Law – PVL1008H
Case Name: Bopape v Moloto
Neutral Citation: 2000 (1) SA 383 (T)
Court: Transvaal Provincial Division of the High Court
Textbook Pg: 283, 298, 302-3, 306-7, 323
FACTS
• This case concerned a couple who were married in
community of property.
• During the marriage, Mr Bopape had an affair with Ms
Moloto, and he gave her several cheques (with a total value
of about R200 000) without his wife’s knowledge or consent.
• The court decided that this donation that might prejudice
Mrs Bopape’s interest in the joint estate, and therefore fell
within the scope of sec. 15(3)(c). Thus Mr Bopape could not
make this donation without his wife’s consent.
CONMIXTIO
• Mr Bopape could not actively transfer ownership in the
money to Ms Moloto.
• However, Ms Moloto did become owner of the money
through conmixtio (mixing) when the money became mixed
up with Ms Moloto’s other money in her bank account.
2
, Case Summaries – LPF – Family Law – PVL1008H
DELICTUAL REMEDY
• The court ordered Ms Moloto to return the money that Mr
Bopape gave her behind his wife’s back.
• This appear to have been an award of delictual damages,
but the court did not make this explicit and did not identify
the delictual action employed.
PROTECTING SPOUSES WHEN SPOUSAL CONSENT IS ‘DEEMED’ (VIOLATED)
SECTION 15(9)(B)
• The donation of R200K violated section 15(3)(c) – no consent.
• Mr and Mrs Bopape sued Ms Moloto for return of the money.
• Ms Moloto argued that Mrs Bopape could not bring a claim
against her and recover the money – instead, Mrs Bopape
should use the sec. 15(9)(b) adjustment remedy against her
husband.
• The court did not agree with this. It held that a non-
consenting spouse is not limited to the sec. 15(9)(b) remedy.
• The spouses can recover the donation directly from the third
party.
Case Name: Bannatyne v Bannatyne
Neutral Citation: 2003 (2) SA 363 (CC)
Court: Constitutional Court
Textbook Pg: 343, 344, 366
3
Family Law (Law of Persons and Family)
PVL1008H
Lecturer: I Ahmed
, Case Summaries – LPF – Family Law – PVL1008H
Case Name: Bopape v Moloto
Neutral Citation: 2000 (1) SA 383 (T)
Court: Transvaal Provincial Division of the High Court
Textbook Pg: 283, 298, 302-3, 306-7, 323
FACTS
• This case concerned a couple who were married in
community of property.
• During the marriage, Mr Bopape had an affair with Ms
Moloto, and he gave her several cheques (with a total value
of about R200 000) without his wife’s knowledge or consent.
• The court decided that this donation that might prejudice
Mrs Bopape’s interest in the joint estate, and therefore fell
within the scope of sec. 15(3)(c). Thus Mr Bopape could not
make this donation without his wife’s consent.
CONMIXTIO
• Mr Bopape could not actively transfer ownership in the
money to Ms Moloto.
• However, Ms Moloto did become owner of the money
through conmixtio (mixing) when the money became mixed
up with Ms Moloto’s other money in her bank account.
2
, Case Summaries – LPF – Family Law – PVL1008H
DELICTUAL REMEDY
• The court ordered Ms Moloto to return the money that Mr
Bopape gave her behind his wife’s back.
• This appear to have been an award of delictual damages,
but the court did not make this explicit and did not identify
the delictual action employed.
PROTECTING SPOUSES WHEN SPOUSAL CONSENT IS ‘DEEMED’ (VIOLATED)
SECTION 15(9)(B)
• The donation of R200K violated section 15(3)(c) – no consent.
• Mr and Mrs Bopape sued Ms Moloto for return of the money.
• Ms Moloto argued that Mrs Bopape could not bring a claim
against her and recover the money – instead, Mrs Bopape
should use the sec. 15(9)(b) adjustment remedy against her
husband.
• The court did not agree with this. It held that a non-
consenting spouse is not limited to the sec. 15(9)(b) remedy.
• The spouses can recover the donation directly from the third
party.
Case Name: Bannatyne v Bannatyne
Neutral Citation: 2003 (2) SA 363 (CC)
Court: Constitutional Court
Textbook Pg: 343, 344, 366
3
