|
''Maseko v Maseko'',〔1992 (3) SA 190 (W).〕 heard in the Witwatersrand Local Division by Lazarus AJ from 22 to 25 October, 1990, with judgment handed down on 16 November, is an important case in South African contract law, with its stipulation, on the question of legality, that contracts designed to mislead creditors are immoral and against public policy. The plaintiff in this case, in order to protect her property from possible attachment in execution, had entered into an agreement with the defendant that they would marry, transfer the property to him, thereafter divorce and then retransfer the property to her once the threat of attachment was over. The purpose of this agreement was to conceal the property from the creditor, and possibly others; as such, it was contrary to public policy. The court also held that, when a contract is void ''ab initio'', the remedy of ''restitutio in integrum'' will not be available. The essence of the remedy is that there should be a valid legal transaction from which the court will in certain circumstances grant relief by avoiding it ''ab initio''. == Facts == The plaintiff acquired a certificate of occupation of certain property in Soweto, whereafter she signed as surety for two purchasers of motor vehicles. Some time later, when the purchasers defaulted in their payments on the purchase price of the vehicles, the possibility arose of her being held liable in terms of the suretyships. In order to protect her property—that is, her certificate of occupation—she and defendant entered into an agreement whereby they were to be married and then transfer the property to the defendant. They would later get a divorce and, when there was no longer a threat that the property might be attached in execution, retransfer the property to the plaintiff. The parties were duly married on 9 May 1985. Less than a week later, the plaintiff ceded her property to the defendant. Divorce proceedings were instituted three days later, and an agreement of settlement was reached at the end of May. A divorce order, incorporating the agreement of settlement, was granted on 12 June. One of the terms of the agreement of settlement made an order of court was that the defendant "shall retain as his sole and exclusive property all right, title and interest in certain immovable property," which is to say the property transferred to him by the plaintiff. The defendant refused to retransfer the property to the plaintiff, who sued. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Maseko v Maseko」の詳細全文を読む スポンサード リンク
|