Court name
Supreme Court
Case number
SA 29 of 2006

Stipp and Another v Shade Centre and Others (SA 29 of 2006) [2007] NASC 2 (18 October 2007);

Media neutral citation
[2007] NASC 2



CASE NO.: SA 29/2006


In the matter between:



In her capacity as Executor in the deceased

estate of the late LEWIS CHRISTOFFEL STIPP













Shivute, C.J., Maritz, J.A. et Strydom, A.J.A.

Heard on:       

Delivered on:   


STRYDOM, A.J.A.: [1]    
The first appellant brought an application in the High Court of Namibia in her personal capacity and in her capacity as Executrix in the estate of the late Lewis Christoffel Stipp (the deceased). In her founding affidavit she stated that she was married to the deceased in community of property on 11 November 1981. When the deceased died on the 9
th December 2005 she was appointed as the executor in the estate.


The first respondent (SHADE CENTRE) was a business which manufactured and sold blinds, louvres and awnings. The business was run by the deceased. The business grew over the years and at the time of the death of the deceased it already branched off to include several other businesses, namely DYNAMIX SPORTSWEAR, MAXIDOOR and MR. SPYKES.


After the death of the deceased the first appellant went to the office of SHADE CENTRE in order to establish if the deceased had left a will and to take control of the businesses as she believed that they formed part of the common estate.


At the office she found two documents of which she was totally unaware, namely a Deed of Sale whereby the deceased had sold SHADE CENTRE to the second respondent for a nominal sum of N$10,00, and a lease agreement between a Closed Corporation, NABAHARI PROPERTIES CC, of which the deceased was the sole member, and SHADE CENTRE CC, of which the first respondent was the only member.


The first appellant confronted the second respondent and he confirmed to her that he was indeed the owner of SHADE CENTRE and the other properties since the 30th April 2003. He further claimed that the agreement of sale was valid.


As a result of the above situation the first appellant brought the application by Notice of Motion in which she claimed the following relief:

That the Deed of Sale between the deceased, the late LEWIS CHRISTOFFEL STIPP and the Second Respondent ETIENE LEWIS STIPP dated 30 April 2003 was null and void in terms of Section 7(1)(j) of MARRIED PERSONS EQUALITY ACT, ACT 1 OF 1996.


That the assets of SHADE CENTRE, SHADE CENTRE CC, MAXIDOOR, DYNAMIX SPORTWEAR and MR. SPYKES formed part of the common estate of the late LEWIS CHRISTOFFEL STIPP and ELSA STIPP.


That the businesses of SHADE CENTRE, SHADE CENTRE CC, MAXIDOOR, DYNAMIX SPORTSWEAR and MR SPYKES be allowed to continue to do business under the management of the Second Respondent on condition that:-


The Second Applicant be allowed to immediately compile an inventory of all the assets of the said businesses.


Any bank accounts in the name of any of the said businesses be placed under the control of the Second Applicant.


Costs of this application.


Further and/or alternative relief.”


In the Court a quo the second respondent took a point in limine which was successful and the application was dismissed with costs.


The appellants were not satisfied with the outcome of the application in the High Court and they appealed against the whole judgment and the order of costs granted by that Court. Mr. Barnard represented the appellants and Mr. Schickerling appeared for the respondents. Mr. Barnard did not argue the matter in the High Court.


In her founding affidavit the first appellant continued to state that she was an accountant who, especially in the first few years when the deceased started SHADE CENTRE, was able to provide for the family in order to allow the deceased to expand the business to include the other businesses mentioned and to run the business into a profitable undertaking.


The first appellant further stated that she always believed that the second respondent was employed in the business by the deceased and she claimed that he could not, by any stretch of the imagination, say that he did not know that she was married to the deceased in community of property. He therefore knew that her consent was necessary before the deceased could sell any of the assets of the common estate. In the event that he did not know what the proprietary rights of the spouses were it was his duty to establish what the true position was. She alleged further that the second respondent could not claim that he was an innocent party to the transaction.


The first appellant then submitted that the purported sale of the business for only N$ 10,00 was an alienation of an asset of the joint estate without value as contemplated by sec. 7(1)(j) of the Married Persons Equality Act, Act No. 1 of 1996, (the Act), and was therefore null and void.


The second respondent filed an answering affidavit on his behalf and that of the first respondent. This respondent is a son of the deceased from a previous marriage. He pointed out that until 30th April 2003 the deceased traded under the name and style of SHADE CENTRE. On the 23rd April 2003 the first respondent was duly registered in terms of the Close Corporations Act, 1988, as a close corporation. The Deed of Sale included the goodwill, raw materials and 3 second hand vehicles of SHADE CENTRE and transfer thereof duly took place. The second respondent was in terms thereof the sole registered member of the first respondent.


The point in limine, taken by the first respondent, was set out in the answering affidavit sworn to by the respondent and reads as follows:

The applicant bears the onus to:

Allege and prove (having regard to the requirements of section 7(1)(j) read with section 7(6) of the Married Persons Equality Act, 1996) that the alienation in question probably did and reasonably prejudiced her interest in the joint estate; and in addition thereto


When the late Lewis Christoffel Stipp entered into the agreement dated 30 April 2003: 
he probably had the applicant’s rights in and to the joint estate in mind; 

the transaction in question was in all the circumstances an unreasonable one to have been entered into, and 

the second applicant, when entering into the agreement in question, was aware that the disposal of the effects therein were being effected fraudulently as against the applicant


The applicant’s affidavit lacked any of the averments and or circumstances required to establish any of the above requirements.”


In deciding this issue Mr. Schickerling submitted that the Court should only look at the founding affidavit of the appellants and if the allegations set out therein did not sustain a proper cause of action then that would be the end of the matter. Mr. Barnard did not specifically address this point but he attempted to show that sufficient allegations were made by the appellants to sustain their cause of action and in doing so he also referred to the other affidavits filed of record.


The appellant’s cause of action was based on the provisions of sec. 7(1)(j) of the Act. This section, as well as subsection (6), provides as follows:

Except in so far as permitted by subsection (4) and (5), and subject to sections 10 and 11, a spouse married in community of property shall not without the consent of the other spouse –


donate to another person any asset of the joint estate or alienate such an asset without value, excluding an asset of which the donation or alienation does not and probably will not unreasonably prejudice the interest of the other spouse in the joint estate, and which is not contrary to any of the provisions of paragraph (a), (b), (c), (d) and (e).


In determining whether a donation or alienation contemplated in subsection (1)(j) does or probably will unreasonably prejudice the interest of the other spouse in the joint estate, the court shall have regard to the value of the property donated or alienated, the reason for the donation or alienation, the financial and social standing of the spouses, their standard of living and any other factor which in the opinion of the court should be taken into account.”


Subsections (4) and (5) and sections 10 and 11 are not relevant to this matter and need not be considered. The donation or alienation was also not contrary to the provisions of paragraphs (a), (b), (c), (d) and (e) of sec. 7(1) of the Act.


In terms of sec. 7(1)(j) a spouse is exempt from obtaining the consent of the other spouse where a donation or alienation would not unreasonably prejudice the interest of the other spouse in the joint estate. (See Hahlo: The South African Law of Husband and Wife: fifth Edition p 251 discussing a similar provision in Act 88 of 1984, of South Africa, namely sec. 15(3)(c) ).


The factors which the Court must take into consideration to determine whether the donation or alienation did or probably would unreasonably prejudice the interest of the other spouse are set out in sub sec. (6) These are the value of the property donated, the reason for such donation, the financial and social standing of the spouses, their standard of living and any other factor which in the opinion of the Court should be taken into account. (My emphasis).


From the above it follows in my opinion that a spouse who wishes to avail himself or herself of the rights set out in the section will have to put as full a picture before the Court as may be necessary in the circumstances of the particular case. What should be put before the Court will obviously differ from case to case. One can assume that to reclaim donations made by one spouse to feather the nest of a secret lover much less would be necessary to put before the Court than in most other cases. ( See in this regard Bopape and Another v Moloto, 2000(1) SA 383 (T.P.D.)). It is therefore impossible, and would also be unwise, to even attempt to give a list of what Courts would require in this regard.


In terms of the common law the spouse reclaiming an asset did not have an easy onus to discharge. In Pretorius v Pretorius, 1948 (1) SA 250 (A), Schreiner, J.A. set out what such spouse must prove. At p. 256 the following was stated:

Before a wife, married in community of property, can attack the exercise by her husband of the powers in dealing with the joint estate, or her share in it, she would at least have to show, viewing the matter subjectively, that the circumstances rendered it probable that the husband had her rights in mind when he entered into the impugned transaction and that he appreciated that it would prejudice those rights; and, viewing the matter objectively, she would at least have to show that the transaction was in all the circumstances an unreasonable one for the husband to enter into.”


In common law the onus to prove that the donation was in fraud of the rights of the wife rested throughout on the wife. (See Laws v Laws and Others, 1972 (1) SA 321 (WLD) and Govender v Chetty, 1982 (3) SA 1078 (CPD) ).


Although the issue as to who carried the onus was in dispute in the Court a quo, Mr. Barnard, correctly in my opinion, accepted that the onus was on the appellants to bring their application within the ambit of sec. 7(1)(j). He submitted that in order to successfully impugn the transaction between the deceased and the second respondent they had to establish the following:

That the impugned transaction was concluded without her consent;

That the transaction, in essence, and despite any simulated appearance, was a donation or an alienation without value; and

The transaction would probably unreasonably prejudice appellant’s interests in the joint estate.


I have no problem with this submission made by Counsel except to add that in order to determine whether the transaction would probably unreasonably prejudice the appellant’s interests in the joint estate the Court must apply the provisions of subsection (6) of section 7.


Mr. Barnard criticised the Judge a quo and submitted that he applied the common law rules and required the appellants to prove fraud in order to impugn the transaction. In my opinion the Court did no more than to state the common law in its endeavour to determine who carried the onus, The finding of the Court that the appellants carried that onus was correct.


Although this concession was made by Counsel he also argued that a transaction concluded without the consent of one of the spouses is generally a nullity and that the innocent spouse would always be entitled to seek a declaratory order to such effect.


Support for the contention that a donation without value can be void is to be found in the Bopape – case, supra, (A case which we were not referred to by Counsel). In that case the aggrieved spouse reclaimed payments made to or on behalf of a woman with which the second plaintiff, her husband, had an illicit relationship. In the summons the first plaintiff alleged that the second plaintiff, “without the consent of the first plaintiff and contrary to the provisions of sec. 15(3)(c) of the Matrimonial Property Act 88 of 1984, (my emphasis) donated moneys to the defendant. The Court found for the plaintiffs and rejected an argument that an aggrieved spouse’s remedy was limited to an adjustment in terms of sec. 15(9)(b) of that Act. The Court found that in order to accomplish a lawful donation without value the consent of both spouses was required. When such consent is absent the donation is unlawful and consequently void.


I agree with the finding in the Bopape – case, supra, that a spouse is not limited to the remedies set out in our sec. 8 of the Act, (sec. 15(9)(b) of the South African Act) which allows for an adjustment of the joint estate in favour of the innocent spouse. However, the case does not assist Counsel because before it can be said that a donation or alienation without value is void it must be brought within the ambit of the Act, in this instance sec. 7(1)(j) read with subsec. (6). It follows therefore that an applicant relying on these provisions of the Act must establish that the donation was without consent and without value and that it does or probably will unreasonably prejudice his or her interest in the joint estate. Whether such prejudice exists the Court will have regard to the provisions set out in sec. 7(6) of the Act.


The issue before the Court a quo, and also before this Court, is whether the appellants made the necessary allegations to bring their application within the ambit of the Act. To determine this issue the question is whether the Court is limited to the founding affidavit of the appellant, as was submitted by Mr. Schickerling, or whether it should also consider the answering affidavit of the second respondent and the replying affidavit of the first appellant as seemingly argued by Mr. Barnard.


In a long line of cases the Courts have stated as a general rule that an applicant in motion proceedings must set out his cause of action and supporting evidence in his founding affidavit. It is only in exceptional circumstances that the Court will allow an applicant to supplement its allegations in a replying affidavit in order to establish its case. How the Court should approach this issue was set out in the case of Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others, 1974 (4) SA 362 (T). At p. 369 the following was stated by the learned Judge:

It lies, of course, in the discretion of the Court in each particular case to decide whether the applicant’s founding affidavit contains sufficient allegations for the establishment of his case. Courts do not normally countenance a mere skeleton of a case in the founding affidavit, which skeleton is then sought to be covered in flesh in the replying affidavit."


In the case of Bowman NO v De Souza Roldao, 1988 (4) SA 326 (TPD), Kirk-Cohen, J, referring to various other cases, summed up the position as follows:

This type of objection must be considered on the basis of an exception to a declaration or a combined summons. The relevant considerations are:


the founding affidavit alone is to be taken into account;


the allegations in the founding affidavit must be accepted as established facts;


are these allegations, if proved, sufficient to warrant a finding in favour of the applicant?”

(see p. 327 I –J).


To the list of cases considered by Kirk-Cohen, J, can be added Bayat and Others v Hansa and Another,1955 (3) SA 547 (N) at 553D; Pearson v Magrep Investments (Pty)Ltd and Others, 1975 (1) SA 186 (D) at 187C – 188A and Ladychin Investments v South African National Roads Agency, 2001 (3) SA 344 at 359B – I.


Some criticism was expressed in the case of Valentino Globe BV v Phillips and Another, 1998 (3) SA 775 (SCA) against equating the procedure set out in the cases above with that of an exception. Harms, JA, expressed himself as follows on p779I -780A, namely –

It seems to me to be wrong to permit the use of this procedure in a Court of first instance where there is no real conflict of fact on the papers, as is the case here. But having used the procedure unsuccessfully at that level, does not mean that an appellant is entitled to use it again on appeal. In any event, it seems to me that the analogy with the exception procedure may be inappropriate and that the comparison should rather be with an application for absolution from the instance in a trial action. Having lost an application for absolution, a defendant cannot thereafter lead evidence and on appeal argue that absolution should have been granted at the end of the plaintiff’s case.” (my emphasis).

I agree with Nicholson, J, in the Ladychin – case, supra, at p 359 I – J, that the Valentino – case did not alter the situation as set out in the cases above. In the present instance the point taken that the applicant did not establish a prima facie cause of action was successful and it is that point which was appealed against and which this Court must decide. The issue did not become moot as would be the case where an application for absolution at a trial was dismissed and further evidence was then led.


In the present instance there are no exceptional circumstances why the Court should have regard to any of the other affidavits and it was also not argued that such circumstances were present.


In the result I have come to the conclusion that this Court should apply the general rule set out above and should consider, with reference to the founding affidavit only, whether the appellants have made out a prima facie cause of action.


The relevant allegations on which the appellants based their case for the relief set out in the Notice of Motion were set out in the judgment of the Court a quo. I agree that this setting out correctly reflected the relevant allegations made by the appellant. These are the following:


That the first appellant was married to the late Lewis Christoffel Stipp on 11 November 1981 in community of property and at the time of his death on 9 December 2005 this marriage still subsisted; (Rec. p18, par 7 and 8).


At the time of their marriage in 1981 the deceased had no assets, was a salaried worker for SWACO, from where he retired in 1989, when he started the business “Shade Centre” the capital of which she provided;

(Rec. p18-19, par 9).