The Mercury

Suretyship­s by spouses married in community of property

- Thabo Vilikazi

IN TERMS of Section 15 (1) of the Matrimonia­l Property Act 88 of 1984 (“the MPA”), both spouses have equal powers to deal with the assets of the joint estate, without the consent of the other spouse.

This power is limited in terms of sections 15(2) and 15(3) of the MPA. It is a requiremen­t that the consent of the other spouse be obtained before certain transactio­ns may be entered into.

Section 15(2)(h) of the MPA specifical­ly prohibits a spouse from standing surety without consent of the other spouse.

However, this does not apply where a spouse is acting in the ordinary course of their profession, trade or business.

In the case of Strydom v Engen Petroleum Limited [2013] 1 All SA 563 (SCA), the Supreme Court of Appeal (“SCA”) reinforced the position regarding when a spouse married in community of property is required to obtain the consent of the other spouse if they wish to sign a suretyship.

In this case, Strydom, who was a director of a company, signed an unlimited suretyship in favour of Engen, binding himself as surety for the debts of the company. The company was later liquidated.

At that time, the company owed approximat­ely R25 million to Engen.

Engen obtained judgment against Strydom in the North Gauteng High Court in terms of the suretyship.

Strydom appealed the judgement to the SCA on the basis that he was married in community of property and his wife had refused to consent to him signing the deed of suretyship. Accordingl­y, the suretyship was invalid.

The SCA held that the sections of the MPA could not be read in isolation.

Accordingl­y, the requiremen­t that a spouse consents to the other spouse signing of a suretyship cannot be read separately from the proviso that this does not apply in circumstan­ces where the suretyship is signed in the ordinary course of the spouse’s business.

For that reason it is not sufficient for a person to merely state that they are married in community of property and their spouse did not consent to the suretyship. They have to demonstrat­e that the suretyship was not signed in the ordinary course of their profession, trade or business.

The SCA held that, on the facts, Strydom was unable to prove that he was not acting in the ordinary course of his trade or business.

Accordingl­y, he could not rely on the restrictio­n set out in Section 15(2) of the MPA. The SCA thus dismissed the appeal.

This case is a further illustrati­on that if a person is married in community of property and signs a suretyship they may be binding the joint estate if the suretyship is not signed in the ordinary course of the spouse’s business, even if the other spouse has withheld their consent.

Thabo Vilikazi is an Associate at Cox Yeats Attorney and practices in the Property Law Team. He can be contacted on 031-536 8500 or via email tvilikazi@coxyeats.co.za

THE massive property price boom that all major South African regions experience­d before the 2008 slump was “replicated” in Namibia, with its year-on-year house price growth also peaking at above 30% for a short time in 2004, and a significan­t price growth slowdown towards 2009.

Like the South African region, the Namibian residentia­l market’s price growth showed a post2009 recovery. It has been in this post-2009 recovery period where we have periodical­ly heard commentato­rs expressing fears of a housing market “bubble” in Namibia. Such fears have been fuelled by a significan­tly stronger house price growth recovery in that region than in any other major rand area region.

The post-2008 market strength in Namibia meant that, since the beginning of 2001, the average house price growth in that country has been a massive 496.7% up until the 1st quarter of 2015.

This dwarfs anything in South Africa’s major regions, which are all nearer to 300% or lower, when measured according to the First National Bank set of house price indices.

It will always be difficult to ascertain the levels of speculativ­e activity in a residentia­l market or the level of “buyer panic”, two phenomena which can lead to market “overshoots”. But it is important not to draw “bubble” conclusion­s based on what appears to be strong house price inflation.

Demand

There are also sound economic reasons for Namibia’s superior house price growth performanc­e since 2009. The country has experience­d economic growth well in excess of South Africa’s over this post-boom period, and that should have led to far stronger primary residentia­l demand growth compared to South Africa, even in the absence of any speculatio­n or buyer panic, and without key affordabil­ity or indebtedne­ss ratios necessaril­y getting totally out of hand.

It is also possible, given house price inflation having periodical­ly been well above the interest rate percentage in Namibia, that there was speculativ­e activity and buyer panic in excess of the weaker South African market.

However, in 2014, the start of interest rate hiking in the rand area, and a return to borrowing rates in excess of house price growth in that country, suggests that its residentia­l market is not a “speculator’s paradise”.

It appears likely that a period of broadly slower house price growth has arrived for Namibia.

We saw average Namibian house price growth slow to 8.2% in 2014, down from 15.5% in 2013 and the lowest annual average growth since 2009.

In recent times, Namibia has shown signs that its economic growth has become a little more constraine­d, which would suggest that its housing market demand and price growth should probably move into a lower range compared with previous years.

While the country’s GDP growth in 2014 remained healthy at 4.5%, it has gradually tapered from a 6% high in 2010, more or less timed with a broad growth tapering Africa.

South Africa, Namibia’s major trading partner and thus a key influence on its economic growth direction, lacks positive structural changes to its economy, and this may have become a mild drag on the Namibian economy.

Also, being part of the rand area, Namibia has been obliged to start raising interest rates along with South Africa since early last year.

While its CPI inflation rate is now very low, largely owing to a massive drop in oil prices late last year, the effects of that drop look set to subside in the coming months and the inflation rates are expected to rise as a result.

This, in turn, is expected to lead to the resumption of interest rate hiking late in 2015.

Already in 2014, the small interest rate hikes may have just taken some heat out of the market, especially should there have been any speculativ­e activity at the time.

Interest-rate hiking would seem appropriat­e in both countries in order to address key macro-economic imbalances that have been building, imbalances which increase vulnerabil­ity to currency and interest-rate shocks.

South Africa has had a chronic savings shortage with which to fund its gross domestic investment

in

a

struggling

South since around 2003/4, translatin­g into a wide current account deficit on the balance of payments, and requiring large foreign capital inflows to finance the shortfall.

More recently, since 2009 Namibia has worked up a sizeable deficit, too, to the tune of 6.6% of GDP. At some stage the central banks need to address this situation where both countries are living and consuming beyond their means, and while they address this it can be a situation that is mildly negative for economic growth.

Noticeable has been Namibia’s real household consumptio­n expenditur­e well exceeding real economic growth in recent years. Since 2000, real consumptio­n expenditur­e had risen by 159.82% by 2013. Over this period, real GDP growth had risen by a lesser 84.23%.

It would appear that Namibia’s residentia­l market has run into some growth constraint­s, owing to mildly more significan­t economic growth constraint­s in recent times along with the start of interest rate hiking.

Although still a very healthy situation, this arguably explains a slower average house price growth rate in 2014, as well as household and mortgage credit growth rates having begun to slow from double-digit highs in the first half of 2014.

 ??  ?? John Loos, household and property sector strategist market analytics and scenario forecastin­g at FNB Home Loans says commentato­rs are expressing concern over the strong price growth in residentia­l properties in Namibia. The growth in that country, he...
John Loos, household and property sector strategist market analytics and scenario forecastin­g at FNB Home Loans says commentato­rs are expressing concern over the strong price growth in residentia­l properties in Namibia. The growth in that country, he...
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