key to the study guide - Name

110
15(6) of the Matrimonial Property Act, you have to note how the
requirement that the spouse must have acted in the ordinary course of his
or her profession, trade or business is interpreted by the courts. This issue
is discussed on page 81 of your textbook.
5 PROTECTIVE MEASURES IN THE MATRIMONIAL PROPERTY ACT IN
RESPECT OF THE ADMINISTRATION OF THE JOINT ESTATE
On pages 81±85 your prescribed textbook looks, firstly, at the protection
the Act affords to third parties and, secondly, at the protection afforded to
the spouses inter partes
(1) when one spouse concludes a transaction with a third party without
the necessary consent
(2) when one spouse's consent cannot be obtained for some reason or
other, or when one spouse unreasonably withholds consent
(3) when one spouse prejudices the interests of the other spouse in the
joint estate in another way
5.1 Protection of third parties
The position of third parties who conclude a transaction with a person who
has not obtained the necessary consent from his or her spouse, is set out on
pages 81±82 of your prescribed textbook. You will see that a distinction is
made between third parties who enter into a transaction with a person who
does not know, and cannot reasonably know, that the person's spouse had
to consent to the transaction or that the necessary consent was not
obtained (bona fide third parties) and third parties who enter into a
transaction with a person, while being well aware that the person's
spouse's consent is necessary and has not been obtained (mala fide third
parties). In this regard you have to note what the court held in Distillers
Corporation Ltd v Modise regarding the meaning of the words ``cannot
reasonably know''. Further note that bona fide third parties enjoy
protection in terms of section 15(9)(a) of the Matrimonial Property Act,
but that mala fide third parties do not enjoy such protection. Although the
Act is silent on the consequences of the transaction if the third party is
mala fide, the court in both Amalgamated Bank of South Africa Bpk v
Lydenburg Passasiersdienste and Bopape v Moloto decided that the transaction
is void. Ensure that you understand the discussion on these two cases on
page 82 of our prescribed textbook.
ACTIVITY
Draw a table in order to set out the position of third parties who conclude
contracts with a person who has not obtained the necessary consent from
his or her spouse to whom he or she is married in community of property.