Court name
Supreme Court
Case name
Myburgh v Commercial Bank of Namibia
Media neutral citation
[2000] NASC 3















CASE NO.: SA 2/2000



IN THE SUPREME COURT OF NAMIBIA







In the matter between







CATHERINA HENDRIKA MYBURGH
APPELLANT



And



COMMERCIAL BANK OF NAMIBIA RESPONDENT







CORAM: Strydom, C.J.; O'Linn, A.J.A. et
Manyarara, A.J.A.



HEARD ON: 12/10/2000



DELIVERED ON: 2000/12/08



_____________________________________________________________________________



APPEAL JUDGMENT



_____________________________________________________________________________







STRYDOM, C.J.: This is an appeal from the Full Bench of
the High Court of Namibia. I will refer to the parties as they
appeared before us. Mr. Grobler represented the appellant and Mr.
Frank, S.C., appeared for the respondent.







The respondent issued a combined summons against the appellant in the
High Court of Namibia. The respondent is a commercial bank and in
the summons claimed payment of an amount of N$115 927,92, interest a
tempore morae
and costs of suit on a scale as between attorney
and own client. The respondent's cause of action was based on a
written loan agreement. This document, together with statements
setting out how the amount claimed, was calculated, as well as a
certificate of indebtedness reflecting the total amount indebted,
were attached to the particulars of claim. After the summons was
served the appellant filed an appearance to defend. This in turn was
met by the respondent with an application for Summary Judgment.







The matter thereafter came before Mtambanengwe, J., who granted
summary Judgment for the respondent as prayed. An appeal was noted
to the Full Bench of the High Court which upheld the judgment given
by Mtambanengwe, J., and dismissed the appeal. An application for
leave to appeal was likewise unsuccessful, whereafter the appellant
petitioned this Court for leave to appeal. This application was
successful.







The respondent's application for Summary Judgment was supported by an
affidavit of one Salomon Petrus van der Wath, the Administration and
Credit Manager of the respondent. He stated that all the relevant
files and documentation representing the transaction with the
appellant were in his possession and under his control and that the
contents thereof were within his personal knowledge. He therefore
verified the respondent's cause of action, as set out in its
particulars of claim, and further stated that the appellant has no
bona fide defence and that such notice to defend the action
was delivered solely for the purpose of delaying the action.







According to the respondent's particulars of claim the appellant was
required, in terms of the written agreement, to repay the loan in 60
equal monthly payments of N$2 720,63 payable as from 21st
November 1993. On 21st August 1996 the appellant was in
arrears with her monthly installments in an amount of N$43 698,10.
Because of this breach of the terms of the written agreement clause
6.1 thereof entitled the respondent to immediately claim the
outstanding balance and interest. Furthermore clause 11 provides
that all legal costs incurred by the respondent in successfully
enforcing any of the provisions of the agreement, shall be payable as
between attorney and his own client. However, no such order was
asked for.







Of great importance was the way in which the appellant was cited in
the particulars of claim. Most of the argument presented to the
Court by both Counsel was devoted to this aspect of the case. This
citation is set out in paragraph 2 of respondent's particulars of
claim and I quote it herein in full, namely:







"2. Defendant (now the appellant) is Catharina Hendrika Myburgh,
an adult female married in community of property to Pieter Johan
Myburgh, duly assisted by him in so far as it may be necessary, with
domicilium citandi et executandi and also residing at no. 545
River road, Okahandja, Republic of Namibia."







The appellant herself did not file an affidavit in opposition to the
application for Summary judgment. This was done by her husband, Mr.
Myburgh, who said that he did so in his capacity as administrator of
the joint estate of the parties. The appellant confirmed the
contents of her husband's affidavit. The defence set out therein is
that the appellant has a counterclaim against the respondent which
exceeds respondent's claim.







The counterclaim arose in the following way. Appellant bought from
the respondent a truck and trailer for some N$236 000,00. In terms
of the agreement between the parties the truck and trailer were to be
insured. To comply with this requirement the truck and trailer were
added on to Myburgh's Transport's insurance policy with the insurance
company FGI. Myburgh's Transport is the name of the firm under which
appellant's husband is trading. The truck and trailer were further
leased to the deponent by the appellant to be utilized in his
transport business. The monthly rental was N$31 000,00.







Mr. Myburgh further stated that he was also a client of the
respondent. However, in 1995 the latter withdrew his overdraft
facility and since then the parties have been involved in court
cases, some of which have not yet been finalised.







Thereafter, so it is alleged, the respondent became involved in
certain unlawful actions taken against the deponent. These actions
culminated in FGI cancelling Mr. Myburgh's insurance with the
company. Because the truck and trailer of the appellant were
included in Myburgh Transport's insurance policy the cancellation of
the policy also resulted in appellant being without insurance.
Subsequently the truck and trailer were involved in an accident and
because they were not insured the appellant suffered damages in
excess of an amount of N$150 000,00.







Mr. Myburgh said that he verily believes that his inability to obtain
alternative short term insurance was due to the interaction between
insurance companies as a result of the unlawful actions of the
respondent. What the deponent referred to as unlawful actions are
set out in a handwritten statement of one W.J. Hennig. I will deal
later more fully with this aspect in so far as it is necessary.







The first point argued by Mr. Grobler concerns the locus standi
of the appellant and her citation in the Summons and particulars of
claim. This issue is covered by various grounds of appeal which
amount in essence thereto that the Court a quo erred or
misdirected itself in finding that the appellant had locus standi
to be sued. The Court a quo therefore erred to find that the
disability brought about for women married in community of property
was discriminating in terms of the Namibian Constitution and was
swept away by the provisions of Article 66(1) of the Constitution
when those provisions took effect on 21st March 1990.
Grounds of appeal were also directed at the alternative finding of
the Court a quo that the appellant, was on the facts, a
publica mercatrix and had locus standi as a result
thereof and that the Court a quo wrongly applied the
provisions of the Married Persons Equality Act, Act No. 1 of 1996, or
did not give sufficient weight thereto.







It is trite law that previously a woman married in community of
property had limited contractual capacity and was regarded by the law
as a minor. She could only validly contract with the assistance of
her husband unless certain exceptions applied, one of which was that
she was a publica mercatrix and the contract fell within the
scope of her business. From this it followed that a woman married in
community of property could also not sue or be sued. It was the
husband, as administrator of the common estate, who could sue on a
contract entered into with his assistance, or who had to be sued.
(See Martins v Fick, 1941 WLD 229 at 232; Grobler v
Schmilg and Freedman
, 1923 AD 496 at 501 and African Life
Assurance v Van der Nest and Another
, 1971(3) SA 672(C) at p. 675
A to B.)







If the common Law position of women married in community of property
was left unchanged, as was submitted by Mr. Grobler, then there is
substance in his argument that the respondent sued the wrong party
and that Summary Judgment could not have been granted.







Mr. Frank, however, countered this argument by submitting that the
position of women married in community of property was not left
unchanged. Counsel submitted that the disabilities brought about for
women married in community of property were in conflict with the
provisions of Articles 10 and 14 of the Constitution and were
therefore swept away by the application of Article 66(1) of the
Constitution. Counsel further submitted that the provisions of the
Married Persons Equality Act, Act No. 1 of 1996, which became law on
the 28th May 1996, i.e. before Summons was issued in this
matter, also had the effect of clothing the appellant with the
necessary legal capacity to be sued. Lastly Mr. Frank submitted that
the appellant was a publica mercatrix and that the contract on
which she was sued fell within the source of her business.







Concerning the constitutional issue the dispute between Counsel was
whether the common law, if it was in conflict with the Constitution,
remained valid until it was repealed or amended or declared invalid
by a competent Court, which was the stance taken by Mr. Grobler, or
whether the effect of the provisions of Article 66(1) was such that
the common law in conflict with the Constitution became to that
extent invalid when the provisions of the Constitution took effect on
Independence. Mr. Frank submitted that that was the effect of
Article 66(1).







There are mainly three Articles in the Constitution dealing with the
validity of laws enacted or in existence prior to Independence. They
are Articles 25, 66(1) and 140(1). Article 66(1) deals specifically
with the common law and customary law and is therefore a good
starting point to determine the meaning of these Articles in the
context of the Constitution. This Article provides as follows:







"66 (1) Both the customary law and the common law of Namibia in
force on the date of Independence shall remain valid to the extent to
which such customary or common law does not conflict with this
Constitution or any other statutory law."







In regard to the effect and meaning of Article 66(1), Silungwe, J.,
for the Full Bench, concluded as follows on p. 390 of his judgment,
namely:







"Article 66(1) makes it quite clear that for any rule of the
common law of Namibia in force at the time of Independence to have
remained valid, it must not have fallen foul of the Constitution or
any other statutory law. One question which immediately arises is
whether the common law rule in question did or did not violate the
Constitution. In the light of what has already been discussed above,
the categorical answer is that the Constitution was violated with the
result that the said common law rule at once became unconstitutional.







The clear picture that emerges is that the common law rule that made
women married in community of property victims of incapacity to sue
or be sued was swept away by the Constitution at Independence.
Further, the promulgation of the Married Persons Equality Act is, in
my view, not only a re-affirmation of the Constitutional abolition of
discrimination based on sex, as an abundante cautela
legislative measure, for the avoidance of doubt, but that it is also
designed to give content to the Affirmative Action provisions of
Article 23(2) and (3)."







I respectfully agree with the conclusion arrived at by the learned
Judge. The language of the Article means what it says namely that
the customary law and common law in force on the date of Independence
only survive in so far as they are not in conflict with the
Constitution. The words, "or any other statutory law"
contained in the Article, seem to me to refer to the future.







In the case of Ferreira v Lewin NO and Others, 1996(1) SA 984
(CC) the Constitutional Court of South Africa had to interpret
section 4(1) of the Constitution of South Africa. This section
provides in part that:







"4(1) This Constitution shall be the supreme law of the Republic
and any law or act inconsistent with (the Constitution's) provisions
shall, unless otherwise provided expressly or by necessary
implication in this Constitution, be of no force and effect to the
extent of the inconsistency."







Although different words are used, the meaning of what was enacted is
in my opinion very much the same as our Article 66(1). In this
regard Ackermann, J., said the following on p. 1006 G namely:







"On 27 April 1994 and subject to the qualification in the text
of s.4(1) ('Unless otherwise provided expressly or by necessary
implication in this Constitution') a law which is inconsistent with
the Constitution ceases to have legal effect."



(Although the majority of the Court did not agree with certain parts
of the judgment the majority specifically agreed with this
interpretation. See p. 1079 I - J.)







Our Article 66(1), which is part of our Supreme Law, the Constitution
(See Article 1(6)) provides for the validity of the common law to the
extent that it is not in conflict with the provisions of the
Constitution. There is nothing in the Article itself which postpones
invalidity of the common law where it is inconsistent with the
Constitution.







However, Mr. Grobler submitted that the answer as to when any part of
the common law, which is in conflict with the provisions of the
Constitution, becomes invalid, lies in Articles 140(1) and 25(1)(b)
and (2) of the Constitution. These Articles provide as follows:







"140(1) Subject to the provisions of this Constitution, all laws
which were in force immediately before the date of Independence shall
remain in force until repealed or amended by Act of Parliament or
until they are declared unconstitutional by a competent Court."







Article 25(1) provides:







"Save in so far as it may be authorised to do so by this
Constitution Parliament or any subordinate legislative authority
shall not make any law, and the Executive and the agencies of
Government shall not take any action which abolishes or abridges the
fundamental rights and freedoms conferred by this Chapter, and any
law or action in contravention thereof shall to the extent of the
contravention be invalid: provided that:








  1. a competent Court, instead of declaring such law or action to be
    invalid, shall have the power and discretion in an appropriate case
    to allow Parliament, any subordinate legislative authority, or the
    Executive and the agencies of Government, as the case may be, to
    correct any defect in the impugned law or action within a specified
    period, subject to such conditions as may be specified by it. In
    such event and until such correction or until the expiry of the time
    limit set, whichever be the shorter, such impugned law or action
    shall be deemed to be valid.









  1. any law which was in force immediately before the date of
    Independence shall remain in force until amended, repealed or
    declared unconstitutional, it may either set aside the law or allow
    Parliament to correct any defect in such law, in which event the
    provisions of Sub-Article (a) hereof shall apply."








Sub-Article (2) grants to persons, who claim that a fundamental right
or freedom has been infringed or threatened, the right to approach a
competent Court for protection.







As I understood Mr. Grobler he submitted that the words "all
laws" in Article 140(1) and "any law" in Article
25(1)(b) refer also to the common law and not only to statutory
enactments. Consequently Counsel argued that the common law remains
valid until it is repealed or amended or declared unconstitutional by
a competent Court.







In regard to Article 140(1) Mr. Frank argued that the opening words
of the Article show that it is subordinate to the other articles in
the Constitution which include Article 66(1) and Counsel referred the
Court to S v Marwane, 1982(3) SA 714. At p. 747 H to 748 A
the following is stated:







"The purpose of the phrase 'subject to' in such a context is to
establish what is dominant and what subordinate or subservient; that
to which a provision is 'subject' is dominant - in case of conflict
it prevails over that which is subject to it. Certainly, in the
field of legislation, the phrase has this clear and accepted
connotation. When the legislator wishes to convey that that which is
now being enacted is not to prevail in circumstances where it
conflicts, or is inconsistent or incompatible, with a specified other
enactment, it very frequently if not almost invariably, qualifies
such enactment by the method of declaring it to be subject to the
other specified one."







(See further Bongopi v Chairman, Ciskei Council of State, and
Others
, 1993(3) SA 494 (Ck AD) and Zantsi v Council of State,
Ciskei, and Others
, 1995(4) SA 615 (CC).)







In our Constitution Article 66(1), as it deals with a specific
situation which is not made subject to any other provisions, is
clearly the dominant provision to which Article 140(1) is subject to.
If the words "all laws" contained in Article 140(1) is
given the meaning contended for by Mr. Grobler so as to include also
the common law, it would be inconsistent and incompatible with the
clear provisions of Article 66(1) and Article 140(1), as the
subordinate Article, must therefore give way to what is provided in
Article 66(1).







Regarding Article 25 it seems to me that Sub-Article (1) has the same
effect upon law made by Parliament and subordinate legislatures in so
far as that law abolishes or abridges any fundamental right or
freedom, which Article 66(1) has on the common law, namely that to
the extent to which such law abolishes or abridges the fundamental
rights and freedoms it would be invalid. Apart from the wording of
the Sub-Article that is in my opinion also confirmed by the deeming
provision set out in the proviso in Sub-sub (a). As to the effect
and possible meaning of a "deeming" clause see S v
Rosenthal
, 1980(1) SA 65 (AD).







In this regard it was necessary to create a deeming clause in the
circumstances where a Court has decided to exercise its power and to
afford a legislature the opportunity to correct any defect in the
impugned law. That can obviously only occur where such law is still
in being and as a law which abolishes or abridges one of the
fundamental rights or freedoms is invalid to that extent, according
to sub-Article (1), a deeming clause which would revive such law was
necessary.







Coming to sub-sub-Article (b) it seems to me that when interpreted in
context with Articles 66(1) and 140(1) that there is no conflict in
this regard. Article 66(1), as previously pointed out, renders
invalid any part of the common law to the extent to which it is in
conflict with the Constitution. As also pointed out, this occurred
when the Constitution took effect. The Article does not require a
competent Court to declare the common law unconstitutional and any
declaratory issued by a competent Court would be to determine the
rights of parties where there may be uncertainty as to what extent
the common law was still in existence and not to declare any part of
the common law invalid. That has already occurred by operation of
the Constitution itself where there is conflict.







Seen in this context it follows that the words "any law" in
Article 25(1)(b) and "all laws" in Article 140(1) can only
refer to statutory enactments and not also the common law because in
the first instance such laws, which were in force immediately before
Independence, remain in force until amended, repealed or declared
unconstitutional by a competent Court. The Constitution therefore
set up different schemes in regard to the validity or invalidity of
the common law when in conflict with its provisions and the statutory
law. In the latter instance the statutory law immediately in force
on Independence remains in force until amended, repealed or declared
unconstitutional.







In Government of the Republic of Namibia v Cultura 2000,
1993 NR 328, Mahomed, C.J., discussed Article 140(1) and said the
following:







"Article 140(1) deals with laws which were in force immediately
before the date of independence and which had therefore been enacted
by or under the authority of the previous South African
Administration exercising power within Namibia. Such laws are open
to challenge on the grounds that they are unconstitutional in terms
of the new Constitution. Until such a challenge is successfully made
or until they are repealed by an Act of Parliament, they remain in
force.
(My emphasis)







I respectfully agree with this statement by the late Chief Justice.







Mr. Grobler is correct that a Constitution is sui generis and
must be interpreted broadly and liberally and ordinarily the word
"law" would include the common law as well as the statutory
law unless of course there are clear indications of a different
meaning. In my opinion, and as I have tried to show, there are such
clear indications which in Articles 25(1)(b) and 140(1) limit the
meaning to statutory law.







Mr. Grobler further submitted that if any person can decide for
himself what common law rule in force before Independence is in
conflict with the Constitution and need not anymore be applied, that
it will lead to chaos. The answer is that where there is uncertainty
this can be cleared up by the Legislator or any party involved can
approach the Court for a declaratory order. The Namibian
Constitution is also not the only one which contains provisions
similar to that of Article 66(1). I have already referred to Section
4(1) of the south African Constitution and in the Ferreira-case,
supra, p. 1006 G - 1008 C, Ackermann, J., discussed this issue
and points out that there is also authority for this approach in
Canada and that it is also followed by the German Federal
Constitutional Court. In the above citation the learned Judge also
explains that where a pre-existing law which was inconsistent with
the provisions of the Constitution became invalid the moment the
relevant provisions of the Constitution came into effect a subsequent
declaration by a Court, in similar circumstances as set out in
Article 25(1)(a), does not mean that it is the Court's order that
invalidates the law.







Mr. Grobler also referred the Court to the cases of Ex Parte:
Attorney general: in re: Corporal Punishment by Organs of State
,
1991 NR 178 (SC); S v K, 2000(4) BCLR 405 (NmS) and S v
Sipula
, 1994 NR 41 (HC) and submitted that in those cases no
distinction was drawn between the common law and customary law, on
the one hand, and statutory law, on the other hand, regarding the
invalidity thereof concerning the Constitution. Counsel therefore
argued that those cases were authority for his submission that the
common law survived the coming into effect of the provisions of the
Constitution where the common law was in conflict with the
Constitution.







I must point out that in none of those cases was this distinction
pertinently before the Court or was there an attempt to interpret the
three Articles of the Constitution as it became necessary in the
present instance, and those cases are not any authority for the
submissions made by Counsel. The Sipula-case was a judgment
given by two Judges on review where there was no argument put before
the Court. A reading of the case shows, as do the other two cases,
that there was no reference to the provisions of Article 66(1). As
far as this judgment is concerned, and the excerpt from it referred
to by Mr. Grobler, this must be read in the context of what was
discussed by the learned Judge, namely that the power to impose
corporal punishment by the Linyianti Tribal Khuta was given statutory
recognition by Proc. R.320 of 1970, section 1(1) and (2) thereof. It
is therefore covered by the provisions of Articles 25(1)(b) and
140(1) of the Constitution and remained in force until amended,
repealed or declared unconstitutional by a competent Court.







Mr. Grobler further argued that the disabilities to which women
married in community of property are subjected to are not in conflict
with the Constitution. Counsel submitted that women under the common
law had a choice and where they decided to marry in community of
property they do so voluntarily. In this regard the Court was
referred to Knox D'Arcy Ltd. And another v Shaw and Another,
1996(2) SA 651 (W) at p. 660 C - D. Counsel also submitted that if a
Court has to decide on the constitutionality of the common law
principle that a woman, married in community of property, does not
have locus standi in judicio, it will have to make a value
judgement whether, despite the fact that a woman entered into a
marriage in community of property out of her own free will, there is
an "overriding principle or public policy which is violated
thereby".







The Court a quo came to the conclusion that the disabilities
occasioned by a marriage in community of property were in conflict
with various provisions of the Constitution, inter alia
Article 10(2), and applied in this regard the principles laid down by
this Court in Müller v President of the Republic of Namibia
and Another
, 2000(6) BCLR 655 (NmS).







The two Articles of the Constitution which are clearly applicable to
decide this issue are Articles 10(2) and 14(1). They provide as
follows:







"10 (2) No persons may be discriminated against on the grounds
of sex, race, colour, ethnic origin, religion, creed or social
or economic status." (my emphasis); and







14 (1) Men and women of full age, without any limitation due to race,
colour, ethnic origin, nationality, religion, creed or social or
economic status shall have the right to marry and to found a family.
They shall be entitled to equal rights as to marriage,
during marriage and at its dissolution." (My
emphasis.)







In the Müller-case, supra, p. 665 A - C, the Court
set out the guidelines to be followed where Article 10(2)applies.
The Court's approach to the particular issue before it should be to
determine -







"(i) whether there exists a differentiation between people or
categories of people;








  1. whether such differentiation is based on one of the enumerated
    grounds set out in the sub-article;









  1. whether such differentiation amounts to discrimination against such
    people or categories of people; and









  1. once it is determined that the differentiation amounts to
    discrimination, it is unconstitutional unless it is covered by the
    provisions of Article 23 of the Constitution."








In the present instance there can be no doubt that a differentiation
exists between men married in community of property and women married
in community of property. It can in my opinion also not be denied
that this differentiation is based on one of the enumerated grounds,
namely sex. Only women are, on marriage in community of property,
subjected to the disabilities occasioned by such marriage.







In determining whether the differentiation amounts to discrimination
the Court, in the Müller-case, supra, p. 666, came
to the conclusion that discrimination as used in Article 10(2) refers
to the pejorative meaning of the word. Various guidelines were laid
down to determine in a particular instance whether a differentiation
based on one of the enumerated grounds is discriminatory. Following
those guidelines it must be concluded that women can claim to have
been part of a prior disadvantaged group. This is acknowledged by
the Constitution itself. (See Article 23(3)). Where such
differentiation is based on stereotyping which does not take
cognizance of the equal worth of women but reduces them, in the eyes
of the law, to minors who cannot act independently, but need the
assistance of their husbands, there can also be no doubt that such
disabilities to which such women are subjected, impair the dignity of
women as a class or individually. The differentiation takes no
cognizance of the fact that in many marriages in community of
property the intelligence, training, qualifications or natural
ability or aptitude of the woman may render her a far better
administrator of the common estate than the husband. The impact of
these common law rules on women is that as far as the common estate
is concerned they remain minors for as long as the marriage subsists.
Even where the husband becomes insane the wife does not acquire
contractual capacity and must either allow her husband's curator to
administer the joint estate or apply to Court for authorization to
administer her own property as though her husband were an absent
person. (See Tucker's Fresh Meat Supply (Pty) ltd v Echakowitz,
1958(1) SA 505 (AD).) In my opinion such disability brought about by
a marriage in community of property, which renders the wife subject
to the marital power of the husband, is discriminatory and offends
against Article 10(2) of the Constitution. That is also the case in
regard to Article 14(1) which guarantees to the husband and wife
equal rights during the marriage. Where a wife is during the
marriage, in these respects, subject to "guardianship" of
the husband, the parties do not have equal rights.







For the reasons set out above I have come to the conclusion that
these rules of the common law are in conflict with the provisions of
the Constitution and that they ceased to exist when the provisions of
the Constitution took effect on Independence, i.e. 21 March 1990.
Because of the conclusion to which I have come, it is no longer
relevant to decide whether the appellant was a publica mercatrix.







Reference must also be made to the Married Persons Equality Act, Act
No. 1 of 1996 (the Act). Of particular relevance is section 2 of the
Act. This section reads as follows:







"2(1) Subject to the provisions of this Act with regard to the
administration of a joint estate -








  1. the common law rule in terms of which a husband requires the marital
    power over the person and property of his wife is hereby repealed;
    and









  1. the marital power which any husband had over the person and property
    of his wife immediately before the commencement of this Act, is
    hereby abolished.









  1. The abolition of the marital power by paragraph (b) of subsection
    (1) shall not affect the legal consequences of any act done or
    omission or fact existing before such abolition."








It is, as I have tried to show, not the Act which brought to an end
the marital power which a husband had over the person and property of
his wife, but the Constitution itself and at the stage when the
provisions of the Constitution took effect. Although enacted
abundante cautela the Act ensures certainty as to the legal
position.







In regard to subsection (2) Mr. Grobler submitted that if the Act was
applicable to the present instance it specifically kept intact the
appellant's right to rely on her disability and more particularly her
lack of locus standi, as the contract was entered into before
the Act became operative in May 1996. This argument cannot avail the
appellant and if this is the correct interpretation of subsection (2)
then the subsection itself is unconstitutional because it cannot set
the clock back and declare constitutional what is unconstitutional.
The agreement was in any event entered into at a time when the
provisions of the Constitution had already taken effect, i.e. 21st
October 1993, and when the appellant was no longer subject to the
marital power of her husband.







The other provisions of the Act, set out in Part II, regulate the
situation in regard to marriages in community of property
irrespective of the date on which such marriages were contracted, and
are in my opinion necessary. Section 9 deals with litigation by or
against spouses and subsection (5) thereof provides that where a debt
is recoverable from a joint estate, the spouse who incurred the debt
or both spouses jointly may be sued therefore. If section 9(5) is
not applicable in the present instance, as was submitted by Mr.
Grobler, then in any event the parties, being equal co-owners of the
joint estate, without any impediment to the rights of the appellant,
since 21 March 1990, had to be sued jointly. (See Van der Merwe &
De Waal: Law of Thing and Servitudes, para. 209 ff.)
However, that would depend on whether the debt sued for formed part
of the joint estate. In my opinion it did not as I will try to show
later.







In my opinion Mr. Grobler's reliance on the Knox-case, supra,
is inappropriate. In that case it was argued that restraint of trade
clauses in contracts were per se unconstitutional as they
offend against section 26(1) of the South African Constitution which
protected the right to engage freely in economic activity. In the
course of his judgment the learned Judge confirmed the right of
private persons to contract freely and stated that the Constitution
would not, as a matter of policy, protect such persons against their
own foolhardy or rash decisions and the Court rejected the
application. Although marriage is an institution of private law the
interest of the State and the public in the institution is amply
illustrated by the many legal rules concerning the contracting of a
valid marriage, the proprietary and other rights during the marriage
and its dissolution and the effects thereof. To this extent the
Constitution itself provides that parties to a marriage shall be
entitled to equal rights as to marriage, during marriage and at its
dissolution, (Article 14(1)) and the Courts must give effect to this
and the other provisions of the Constitution, e.g. Article 10(2).
This is also not an instance where meaning and content must still be
given to the provisions of the Constitution, as was the case with
Article 8 where the Court had to determine the content and meaning of
words such as degrading treatment or punishment. See Ex Parte
Attorney General: in re: Corporal Punishment by Organs of
State
-case, supra, p. 188 D - F. In order to determine
whether the rules of the common law, which subjected women married in
community of property to the marital power of the husband, are
discriminatory no value judgment is necessary.







I have therefore come to the conclusion that Mr. Grobler's attack on
the locus standi of the appellant, and the other grounds of
appeal based on that, cannot succeed.







I now turn to the appeal against the Court a quo’s finding
that the appellant did not comply with Rule 32 and that no bona
fide
defence to respondent's claim was set out. The grounds of
appeal in this regard are the following:







“10. The Honourable Judges misdirected themselves on the facts
and/or the law alternatively erred in finding that the appellant had
no valid counterclaim to the claim of the respondent.







11. The Honourable Judges misdirected themselves on the facts and/or
the law, alternatively erred in finding that the issue was whether
the respondent interfered with the contractual rights of the
appellant and not to find that the claim of the appellant against the
respondent is delictual in that there was no contractual relationship
between the appellant and the insurance company.







12. The Honourable Judges misdirected themselves on the facts and/or
the law, alternatively erred not to find that because the respondent
unlawfully caused that the insurance on her vehicles was cancelled
she has a valid claim for damages.







13. The Honourable Judges misdirected themselves on the facts and/or
the law alternatively erred to find that the appellant could have
obtained alternatively (sic) insurance despite the clear
allegation by the appellant’s husband that his inability to arrange
for alternative insurance was likewise applicable to the appellant.”







Mr. Grobler submitted in this regard that if the Court should find
that the appellant had locus standi it would follow that the
truck and trailer would be her property in her own right and would
not form part of the joint estate of the parties. This seems to me
to be correct. The appellant entered into the sale agreement for her
own account. She undertook to pay the monthly installments and
undertook to fulfil the other obligations concerning the agreement
such as insuring the truck and trailer etc. This, so it seems, was
also the attitude of appellant and her husband for they entered, in
respect of the truck and trailer, into a lease agreement whereby he
utilised the vehicles in his transport business and paid to the
appellant an amount of N$31 000,00 per month as rent. This would not
have been legally possible if the vehicles were acquired for the
joint estate and Mr. Myburgh’s claim in his statement that, in the
event of a judgment against appellant, such judgment would be against
the joint estate, is at best for him, based on an incorrect view of
the law and does not fit the facts. The same applies in my opinion
to the loan agreement in respect of which the summons is issued
against the appellant. Also in this regard the contract is in her
name and was concluded and signed without any assistance from her
husband.







I have already referred to the affidavit of one Hennig which was
attached to Mr. Myburgh’s affidavit and in which Hennig sets out
how one Cassim, the Deputy Risk Control Manager of the respondent,
requested him to attempt to arrange that the insurance on Myburgh
Transport’s trucks be stopped. This, according to Hennig’s
affidavit he succeeded in doing.







I shall accept for purposes of this case, without deciding, that Mr.
Myburgh has shown that there was an unlawful interference with his
contractual rights by the respondent. The question is where does
that leave the appellant.







In the case of Dantex Investment Holdings (Pty) Ltd v Brewer and
Others NNO,
1989(1) SA 390 (AD) it was stated that an intentional
interference with contractual rights can in certain circumstances
constitute a delict. What the requirements for liability are, are
however, less clear (p. 395 D - F). The Court (p. 396 A - B) further
pointed out that a plaintiff, who bases his claim for patrimonial
loss on an intentional wrongful act of another, must allege and
prove, inter alia, that such person intended to cause the
plaintiff loss. McKerron: The Law of Delicit, 7th Ed, p. 47,
stated that an intentional act can be defined as an act whose
consequences were foreseen and desired.







Under the circumstances, and bearing in mind the requirements of Rule
32(3)(b), one would at least expect that the appellant would place
facts before the Court from which it was clear that the respondent
knew, or ought to have known, that any wrongful interference with the
contractual rights of the husband of the appellant would also affect
the rights of the appellant and that the respondent, at least,
accepted the risk. The appellant entered into separate contracts
with the respondent and it did not follow thereby that she would
insure her truck and trailer together with those of her husband.







Mr. Grobler submitted that the parties must have agreed to effect the
insurance of the appellant’s truck and trailer in this way. If
there was such an agreement then the appellant should have alleged so
and should have set out facts to substantiate such an agreement.
This was not done. The only allegations made in this regard by the
husband of the appellant were that she was required by the contract
of sale to take out insurance before delivery which she had to
maintain during the period of the contract. It seems that the Court
was asked to infer from the above averments that the respondent knew,
or ought to have known, what the situation regarding the insurance
was and that it was therefore foreseeable that any wrongful
interference with the contractual rights of appellant’s husband
would also cause her patrimonial loss.







However, in the absence of any allegation that notice of insurance
was to be in a specific form, e.g. according to the contract of sale
between the parties, or specific allegations as to how and what
notice was given, such notice could take almost any form from an
informal verbal confirmation to a most elaborate and complete set out
of data and information. No material facts were set out by appellant
or her husband from which a Court could even infer that the
respondent, when it unlawfully interfered with the contractual rights
of Mr. Myburgh, foresaw that by doing so they would also affect the
rights of the appellant and that they accepted that risk. It seems
to me that before it can be said that the respondent should have
foreseen that its unlawful interference could also affect the
appellant, facts should have been placed before the Court from which
it could infer that the respondent knew what the situation regarding
appellant's insurance was or facts which would have shown that they
ought to have known. This was the more necessary as the affidavit of
Hennig, on which the allegation of unlawful interference is based,
and the other documents attached by appellant’s husband, nowhere
even mentioned the appellant.







Also in regard to another important aspect of the case the
information put before the Court consisted of no more than bald
statements. This regards the allegation by Mr. Myburgh that, after
his insurance policy had been cancelled, he was unable to obtain
other insurance for his vehicles or that of the appellant. No
details were given of the attempts made by him and whether he saw one
or ten insurance companies and which those companies were. Such
information would at least have gone some way to establish bona
fides
and to support the claims of Mr. Myburgh. If any reasons
were given by the insurance company or companies for their refusal
then none did so on the basis that they were interacting and did
refuse as a result of the respondent's unlawful actions. The
high-water work of Mr. Myburgh’s allegations in this regard is that
he verily believes that that was the case. (See Caltex Oil SA
Limited v Webb and Another,
1965(2) SA 914 (N) at 917 H.)
Furthermore if the boycott by the insurance companies was aimed at
Myburgh's Transport or Mr. Myburgh no reason was given why the
appellant would not have been able to obtain insurance for her
vehicles. There is no allegation that she even tried herself to get
insurance.







In the oft quoted case of Maharaj v Barclays National Bank Ltd.,
1976(1) SA 418 A at 426 C, Corbett, J.A., (as he then was) stated the
following in regard to Court Rule 32(3)(b), namely:







“The word ‘fully’ as used in the context of the Rule (and its
predecessors) has been the cause of some judicial controversy in the
past. It connotes, in my view that, while the defendant need not
deal exhaustively with the facts and the evidence relied upon to
substantiate them, he must at least disclose his defence and the
material facts upon which it is based with sufficient particularity
and completeness to enable the Court to decide whether the affidavit
discloses a bona fide defence ... At the same time the
defendant is not expected to formulate his opposition to the claim
with the precision that would be required of a plea; nor does the
Court examine it by the standard of pleadings.”











In my opinion the appellant failed to allege material facts which
disclosed a bona fide defence to the claim of the respondent.















In the result the appeal is dismissed with costs.











(signed) STRYDOM, C.J.











I agree.











(signed) O’LINN, A.J.A.











I agree.












(signed)
MANYARARA, A.J.A.











/mv















COUNSEL ON BEHALF OF THE APPELLANT: Adv. Z.J. Grobler



(A. Louw & Co.)







COUNSEL ON BEHALF OF THE RESPONDENT: Adv. T.J. Frank, S.C.



(P.F. Koep & Co.)