Maggie Moroka v Nyokong and Faustmann [1908] ZAHCORC 35 (2 October 1908)

Practice.-Pleading.-Exception.-Declaration.-Cause of action.

Where it was alleged in a declaration that the first defendant,a coloured person, whose marriage with the plaintiff had been dissolved, had before such dissolution illegally and fraudulently transferred certain immovable property of his wife's into his own name and granted a mortgage to the second defendant, and the defendants excepted on the ground that there was no cause of action as the marriage which subsisted at the time of the transaction between the plaintiff and first defendant had been contracted in community of property and the first defendant had thereunder the power to alienate or mortgage his wife's property, Held, that the exception must be overruled and that the declaration was good in law, the first defendant having no right, being a coloured person, to hold immovable property, and consequently none to transfer the same into his own name.