Former Passenger Rail Agency of South Africa (Prasa) CEO Lucky Montana’s attempt to free his wife, Sefora Devereaux Letsoalo, from liability as a co-defendant in his multimillion-rand tax debt legal battle with South African Revenue Service (Sars) will be tough, according to tax experts.
Montana, married in community of property, is in a legal battle with the tax authority over a tax debt that was initially R44m but has accumulated to R55m.
The tax authority now seeks to sequestrate the joint estate of the couple after Montana in his affidavit in November flagged the non-joinder of his wife as a defect in the tax authority’s application.
Non-joinder of parties is a legal term referring to the failure to include a necessary party in a lawsuit. A necessary party is someone who has a direct and substantial interest in the subject matter of the case — one that will be affected by the court’s final judgment.
The interlocutory application puts in the spotlight how spouses married in community of property can jointly be held accountable for tax debt.
Montana, a former MK party MP, opposes the tax authority’s move to join his wife as a respondent to protect her from liability.
In filed court papers, Montana pins his defence on the fact that the sequestration court case is based on an audit of his tax affairs in 2009-19, years before he married Letsoalo.
The sequestration application to attach his assets was filed in May 2023. Montana married in November 2023 and disclosed the fact in November 2025 in his answering affidavit.
Montana contends because the application was initiated before he married, his wife should not be joined to answer to litigation matters that happened years before the union.
“Critically, this marriage was concluded after the launch of the sequestration application.
“My spouse cannot be expected to defend herself against allegations concerning transactions, events and conduct that occurred long before she entered into any legal relationship with me. To permit such a joinder would offend the principle of fairness and constitute a grave procedural injustice,” he argues.
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Tax attorney Natalie Napier, speaking to Business Day, said legally Sars has the power to join Letsoalo in the litigation because the couple is married in community of property.
“In terms of the Matrimonial Property Act both spouses can be joined and sued. Sars could just sue the husband but because they are married in community property, they can choose to sue them jointly,” she said.
The time period of when the tax issue arose does not seem to be relevant, Napier said, adding that being married in community of property the debt followed the couple into the marriage.
“Marrying in community of property can have negative implications unfortunately. The person who is claiming can claim from both parties. It is not ringfenced. If you marry out of community property, you will not be liable for your spouse’s debt.”
Tax attorney Alan Lewis said partners in a marriage in community of property become jointly liable for all debts of the joint estate, which include any debts incurred by the other partner before the marriage.
“The joint estate of the marriage partners therefore includes all assets and liabilities of both spouses as at the date of that marriage,” Lewis said.
The tax attorneys said the marriage regime laws will make it hard for Montana to block Sars from joining his wife in the legal dilemma.
Montana does not dispute that Sars has the legal authority to join his wife but argues the court should consider the tax dispute arose years before he married Letsoalo.
“It cannot have been the legislature’s intention that a debtor could, by marrying after proceedings have commenced, automatically compel the joinder of an innocent third party. lf anything, such an interpretation would encourage abuse, not prevent it,” he contends.
“My spouse was not involved nor is she aware of any of the transactions and amounts in the dispute. lf she is joined under these conditions; she will be compromised. Put bluntly, this will be a miscarriage of justice.”
The court is yet to decide on the matter.
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