Question

QUESTION 1

In 1975, Gin and Tonic got married whilst both had their domicile in England. In terms of the English Matrimonial Causes Act 1973, they were married ex lege out of community of property. In 2024, they visited South Africa and Tonic bought a flat (“voetstoots”) for speculation purposes from Dash without Gin’s consent. Shortly afterward, Tonic realised the property is a poor investment and has since refused to pay the purchase price. Dash now claims the amount due. Fully advise both Tonic and Dash on the capacity of a married woman to contract.

Answer 1

[AI-generated answer — Bot GPT 3.5]

In South Africa, the capacity of a married woman to contract is governed by the Recognition of Customary Marriages Act 120 of 1998. According to section 7(6) of the Act, married women have the same capacity to enter into contracts and administer their own property as unmarried persons. This means that Gin, as a married woman, has the capacity to enter into contracts without the consent of her spouse.

Therefore, Tonic's purchase of the flat from Dash without Gin's consent does not automatically make the contract invalid or unenforceable. However, Tonic may still be held liable for the purchase price if he fails to fulfill the terms of the contract.

As for Dash, since the contract for the sale of the flat was entered into by Tonic without Gin's consent, Dash may face challenges in enforcing the contract against Gin if Tonic does not pay the purchase price. It is important for Dash to consider these potential issues and seek legal advice on how to proceed with enforcing the contract.

In conclusion, the capacity of a married woman to contract in South Africa allows Gin to enter into contracts independently of her spouse. However, Tonic's purchase without Gin's consent may complicate the situation for both Tonic and Dash, and it is advisable for both parties to seek legal advice on how to proceed.