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[2016] ZAWCHC 44
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V.V.M v M.G.V and Others (8897/2014) [2016] ZAWCHC 44 (21 April 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 8897/2014
DATE:
21 APRIL 2016
Reportable
In
the matter between:
[V……]
[V…….]
[M……]
........................................................................................................
Applicant
And
[M…….]
[G……]
[V…….]
..........................................................................................
First
Respondent
REGISTRAR
OF DEEDS, CAPE
TOWN
.............................................................
Second
Respondent
MINISTER OF
HUMAN
SETTLEMENT
...............................................................
Third
Respondent
JUDGMENT: 21
APRIL 2016
HENNEY
J
Introduction
[1] The crisp issue
for determination is, whether a limited real right to immovable
property vesting in the joint estate of the
Applicant, and First
Respondent prior to divorce which were converted into a real rights
once ownership of that immovable property
was registered in their
names after divorce can be regarded as a patrimonial benefit of the
joint estate capable of being forfeited.
In terms of the amended
Notice of Motion the following relief was sought by the Applicant:
1.1 declaring
that the Applicant is the sole owner of the immovable property (“the
Property”) known as Erf [6…….]
[K……..],
in the city of Cape Town, Division Cape, Western Cape Province, in
extent 106 (One Hundred and Six) metres,
as will appear from General
Plan S.G No. 49/2010, and held by Certificate of Consolidated Title
No. [6……….]
under Deed of Transfer [T……..],
also known as [C…….], [S…….], [K……],
alternatively,
that Applicant and Respondent’s joint ownership
of the property held in undivided half shares is terminated; further
alternatively
ordering the termination thereof.
1.2 Directing
that the Deed of Transfer [T…….] over the property, now
registered in the deeds office by the second
respondent, be rectified
to reflect that the Applicant, namely “Virginia Vuyokazi
Mpela”, is the sole owner of the
property, and that the title
deed to the property be rectified accordingly.
1.3 Directing
that Respondent sign all documents and take all / any further steps
necessary to cause the transfer of his registered
undivided half
share in the immovable property to Applicant, and have it registered
in the Applicant’s name such that Applicant
becomes the sole
registered owner of the immovable property in question.
1.4 Directing
that should the Respondent refuse and/or fail to sign the
above-mentioned documents and/or take such steps when duly
requested
to do so, the Sheriff of the High Court for the District where the
immovable property is located, is authorized and directed
to sign all
documents and take all/any steps required to effect registration of
transfer of the Respondent’s half undivided
share in the
property to the Applicant on behalf of the Respondent.
1.5 In the
alternative to Prayer 2 and 3 herein above, that this Honourable
Court makes such directions as to the termination of
the joint
ownership of the property as it deems just and equitable in the
circumstances.
1.6 Both the
Applicant and First Respondent are indigent. Mr Walters
appeared pro bono for the Applicant and Miss Mannel was
instructed by
Legal Aid South Africa for the First Respondent.
[2]
Background Facts
The
Applicant and First Respondent were married in community of property
on 15 December 1992. The First Respondent bought
an informal
dwelling or shack which was later converted into a dwelling and which
is the subject of this dispute from a certain
Mr Ben Nokwe in 1987 on
this very land which now constitutes the property. The dwelling
and the associated rights to use
the land which the dwelling stood
upon their, subsequent marriage became their “family home”
and fell within their
joint estate.
[3]
On 26 May 2005, the Applicant and the First Respondent jointly
applied for a subsidy to the National Housing Department which
was
approved and an Agreement of Sale was concluded as a result thereof.
The transaction between the Department and the Applicant
and the
First Respondent was approved on 12 July 2005. There were
delays in the conclusion of the transfer relating to the
construction
of improvements to the property, surveying the land on which the
property is situated, and documenting and affecting
the transfer of
ownership. These delays all occurred prior to the divorce of
the parties which took place on 24 June 2008.
[4]
The Applicant, prior to the dissolution of the marriage had to vacate
the property as a result of the conduct of the First Respondent
which
conduct gave rise to the divorce proceedings and the divorce order,
and according to the Applicant, the forfeiture order
in particular.
The divorce order was granted on an unopposed basis. The
relevant portion of the divorce order states:
“
The
Defendant forfeits the patrimonial benefits of the marriage including
the informal dwelling situated at [C…….],
[S…….],
[K……], Erf no [1……..], BKS No: [1……]
Phase 2 in Plaintiff’s
favour as
her sole and
exclusive
property
.”
(own
emphasis)
[5]
After the divorce order was granted, Applicant requested the First
Respondent to vacate the property. He advised her to discuss
the
matter with the community leaders. She was told by the
community leaders that they would not allow First Respondent to
vacate the property, unless she could provide alternative
accommodation to the First Respondent. She also sought legal
advice
to evict First Respondent whereafter she launched an
application for his eviction from the property.
[6]
The First Respondent did not oppose the divorce. However, upon
realizing that the divorce court forfeited his rights and
benefits he
had in the property, he launched an application for the variation of
the divorce order which was dismissed on 29 March
2012.
This
fact was conveyed to the Third Respondent. Despite this, the
Third Respondent permitted the property to be registered
in both the
Applicant and First Respondent’s names on 16 August 2012.
[7]
The Applicant’s Case
The
Applicant argued that the divorce order is clear, and states that the
First Respondent “forfeits all patrimonial benefits
of the
marriage including the informal dwelling” as described above in
the order of the divorce court. The Applicant
is of the view
that the description in the divorce order of the immovable property
and the improvements thereon refers to that
very same property.
[8]
At the time of the divorce order as described earlier, the Applicant
holds that they had acquired limited corporeal rights which
can be
regarded as patrimonial assets which fell within the patrimonial
estate of the parties, which was vested in their joint
estate.
At the time of the divorce a corporeal thing, the so-called shack /
informal dwelling; an incorporeal thing, namely,
the use rights to
the land on which it was constructed; and also further incorporeal
things, namely the limited real rights, and/or
contingent rights
arising from the approval of the application for subsidy and the
related process which would lead to the transfer
of the real rights
of ownership to them from the Housing Department, had accrued to
them.
[9]
The Applicant therefore contends that they had limited real rights in
the property vesting in their joint estate prior to the
divorce which
were converted to real rights once ownership of the property was
registered in their names by the Registrar of Deeds
(as had
subsequently taken place).
[10]
Mr Walters submitted that while the real rights to ownership of the
property was contingent upon registration of transfer of
the
immovable property in their names jointly and in undivided shares,
the approval of the application by the Housing Department
and further
implementation thereof by the Housing Department and all the
legitimate expectations which attached thereto accrued
to them.
[11]
He submitted that these were all contingent rights vesting in and
this part of the parties’ joint estate as they were
married in
community of property. He further argued, that in making an
order where parties are married in community of property,
the court
may dispense of that property by ordering the division of their
estate, forfeiture of benefits to the marriage, and also
make an
order for the adjustment upon division as a result of certain
transactions in terms of which the joint estate suffered
a loss.
[12]
In making any of these orders, the court will recognize that limited
real rights, and/or contingent rights, may vest in such
a joint
estate, and should be dealt with accordingly in making these orders
applicable in a given case. Mr Walters in his
argument refers
to Van Niekerk: `Practical Guide to Patrimonial Litigation in Divorce
Actions’ in Substantiation (Issue 16)
thereof, where the
learned author in Chapter 7.2 states that in order to determine
“means” in a divorce action, “assets”
consists of and includes rights, title, or interest which is capable
of being valued in monetary terms. Such rights, title
or
interest may be in a corporeal thing or incorporeal thing which is
capable of being valued in monetary terms.
[13]
He argued relying on Van Niekerk (supra) that such right would
include the right to claim transfer of immovable property in
terms of
which a duly executed written agreement to such effect
notwithstanding the fact that such property is not yet registered
in
the name of such a person. Such a right he says according to
Van Niekerk to claim transfer may have monetary value and
therefore
be an asset in the joint estate of parties to a divorce.
Mr Walters submits that such a right would also
be an asset in the
joint estate for the purposes of the court making any order of
forfeiture. Such a right he argued, would
also not be excluded
in terms of
s18
of the
Matrimonial Property Act, 88 of 1984
[1]
.
[14]
He further submitted, that all contingent rights to ownership of the
property clearly fell within the joint estate of Applicant
and First
Respondent at the time of their dissolution of their marriage.
Since the divorce order provides for the forfeiture
of all such
rights on a proper construction of the order, and by necessary
inference and implication the actual and/or contingent
rights related
to directly or indirectly, the forfeiture would include the transfer
of ownership of an undivided half share thereof
to the First
Respondent.
[15]
He therefore submits that the divorce order is valid and enforceable
and, that it also applied to the First Respondent’s
actual
and/or contingent rights.
[16]
Rectification of the Title Deed
The
Applicant further argued that in terms of s4(c) of the Deeds
Registries Act, Act 47 of 1937 as amended (“the Deeds
Act”), that errors in the registration process may be
rectified. Mr Walters argued that although there is little
authority
that deals with a defective title deed or office error,
there is however, support for the view that registration is not
conclusive
with regards to real rights in land.
[17]
He argued that the real and valid underlying causa and intention to
transfer the title into the name of the Applicant and First
Respondent was not taken into account upon registration of the
property. There was a fundamental flaw to the underlying causa
and intention of the Department when ownership of the property was
transferred to the Applicant jointly and or undivided shares
with the
First Respondent as if they were still married in community of
property. This was done firstly without reference
to the
divorce order and secondly, without reference to the forfeiture of
all rights real or contingent to the property as directed
by the
divorce order. The officials of the Department either
overlooked, or failed to properly appreciate the terms of the
divorce
order and then failed to implement it, or adhere to it.
[18]
He argued that the court has the power to intervene and remedy that
error by directing the rectification of the title deed.
He
further argued that the court is empowered to do so in terms of s6 of
the Deeds Act or, alternatively by means of a rectification
of a
transfer in terms of s16 or 31 of the Deeds Act. He further
argued that this court also has an inherent jurisdiction
and power to
ensure that its orders including those orders of lower courts within
its jurisdiction are adhered to and applied fairly
and properly.
[19]
As a further alternative Mr Walters argued that the court could also
order the termination of the parties’ joint ownership
of the
property. Regarding this point he argued that the Applicant did
make out a case that it could be just and equitable
to allocate to
the Applicant (and direct transfer) of First Respondent’s
entire half share in the property to the Applicant.
[20]
In doing so, he argued the court should have regard to the terms of
the divorce order; the circumstances giving rise to the
divorce; the
events that had taken place since the granting of the divorce order,
and the respective means of the Applicant and
the First Respondent.
Given
these circumstances, the First Respondent has not put up any bona
fide defence to the alternative relieve claimed by the Applicant.
[21]
The First Respondent’s Case
Miss
Mannel argued that the First Respondent understood the divorce order
to mean that he forfeits his patrimonial benefit to his
informal
dwelling, the corrugated sheet structure. According to the
First Respondent, the Deeds office when it registered
the property in
both his and the Applicant’s names on 23 February 2012, did so,
not because they made a mistake, but because
he believed that he and
the Applicant are joint owners of the property.
[22]
According to the First Respondent he and the Applicant had a
contingent right over the property; a mere hope that they might
own
it at a later stage. According to Miss Mannel, the parties
merely had a tenure over the immovable property. She
argued
that in the previous dispensation the right to tenure had a lesser
title than ownership. According to her the current
tenure is on
par with ownership. This tenure, so she argued, had a suspensive
condition that must be adhered to.
[23]
The Magistrate during the divorce proceedings had no power to grant a
forfeiture order of the immovable property to which the
parties had
tenure to. This tenure according to her is only converted into
full ownership at a later stage. She based
her argument on the
dictum in
Ex parte Western Cape Provincial Government and Others
;
In
re DVB Behuising (Pty) Ltd v North West Provincial Government
and Another 2000(4) BCLR 347
(CC)
. She also relied
on the decision of
Reeder v Softline and Another
2000 (4) ALLSA
105
(W)
and argued that the contingent rights the Applicant and
the First Respondent had over the immovable property was not a vested
right
that accrued to them during the subsistence of their marriage.
[24]
At the time of their divorce, the parties merely had a tenure over
the property and not a real right that vested in their joint
estate.
They received a housing subsidy from the Department of Human
Settlements with which they secured a tenure to ownership
at a later
stage from the City of Cape Town. The City of Cape Town therefore,
during the divorce proceedings was the owner of the
immovable
property.
[25]
They had no right that actually vested in them. They had no
enforceable right. The immovable property could thus not
form part of
their matrimonial property. They only had owned the informal
dwelling. Miss Mannel therefore went on to argue
that the divorce
court only could make an order with regards to the informal dwelling
as being the corrugated sheeting structure.
[26]
In reply to these submission Mr Walters argued that the First
Respondent’s contention that the right to “tenure”
amounts to a lesser title than ownership is flawed. This view
is founded on an incorrect reading and application of the DBV
Housing
case. That case dealt with a limited form of tenure created by
Proclamation R293 of 1962, issued in terms of the
Native
Administration Act 38 of 1927. In contrast, the Upgrading of Land
Tenure Rights Act 112 of 1991, was enacted to ensure that
a limited
form of ownership was to be upgraded to full ownership.
[27]
The DBV case so Mr Walters argued dealt with the issue whether the
limited tenure stood to be transferred in terms of Section
2(1) read
with s6(1) of the Upgrading of the Land Tenure Rights Act 112 of
1991. In this particular case, the Applicant and First
Respondent
obtained transfer, if regard is to be had to the Deed of Transfer
[2]
.
The property had been transferred in terms of s13(1) of the Upgrading
of Land Tenure Rights Act 112 of 1991.
[28]
According to Mr Walters the whole purpose of the Act was to convert
land tenure rights into ownership. This matter does not
concern the
granting of tenures obtained under proclamation R293 of 1962, which
were issued in terms of the Native Administration
Act, 38 of 1927,
which conferred a limited form of ownership and stood to be
transferred in terms of section 2 of s3 of the Upgrading
of Land
Tenure Rights Act 112 of 1991.
[29]
The Respondent’s reliance on the Reeder case is also misplaced
in that the Reeder matter dealt with a marriage out of
community of
property subject to accrual as opposed to the current case in which
the parties were married in community of property
only. In such
a case the contingent rights to assets in another spouse’s
estate in a marriage out of community of property
is subject to
accrual only after the marriage is dissolved.
[30]
As opposed to a marriage in community of property as with the present
matter whereas the rights are vested in the joint estate
prior to
divorce. The housing application form
[3]
is clear evidence of a valid purchase contract concluded between the
Applicant, First Respondent, Third Respondent, and others
prior to
the divorce order being granted.
[31]
Evaluation
:
It
is trite that when parties are married in community of property, the
nature of the relief which they can claim is either an order
for
division of the joint estate or an order for forfeiture of the
benefits of the marriage in community of property. In this particular
case during the divorce proceedings, the court made an order for the
forfeiture of the benefits of the marriage in favour of the
Applicant. This included an order that the First Respondent forfeits
the patrimonial benefits of the marriage which included the
informal
dwelling situated at [C…….], [S……..],
[K……], Erf no:[1……….],BKS
no:[1…….] Phase 2 in favour of the Applicant as her
sole and exclusive property.
[32]
It is common cause that during the subsistence of the marriage the
Applicant and the First Respondent applied for subsidized
housing
which was approved on 12 July 2005
[4]
.
In terms of that document a “contract of purchase” was
also concluded between them and the Housing department on 13
June
2005. It is therefore not disputed that the Applicant and First
Respondent concluded an agreement of sale during the subsistence
of
the marriage with the Housing Department to acquire the property. It
was also clear that everything was set in motion for them
to acquire
ownership of the property which included having construction of the
improvements thereon. Further steps were undertaken
towards the
transfer of the ownership thereof to the joint estate of the
Applicant and the First Respondent.
[33]
It was also clear that the registration of transfer of ownership of
the property to Applicant and First Respondent would occur
on a
future date. In my view, this was much more than a mere tenure, or
hope that the property would one day be transferred into
the name of
Applicant and First Respondent. They acquired a right to claim
transfer of the immovable property in terms of a duly
written
agreement which were clearly evident from their application for
housing document
[5]
. In this
regard, I am in total agreement with the view expressed by the
learned author Van Niekerk: Practical Guide to Patrimonial
Litigation
In Divorce Actions (Issue 16) at paragraph 7.2 where he states “
For
purposes of determination of “means” in a divorce action,
it is suggested that an asset consists of the rights,
title or
interest which a person may have in any corporeal or incorporeal
thing, which is capable of being valued in monetary terms.
It
therefore follows that an asset may be tangible or intangible. For
instance, a person may be the full beneficial owner of a
tangible
asset such as a Ferrari sports car or, on the other hand, may have
the right to claim transfer of immovable property in
terms of a duly
executed written agreement to such effect, notwithstanding the fact
that such property is not yet registered in
the name of such a
person. Such a right to claim transfer may have a monetary value and
therefore be an asset in the estate of
such a person
.”
[34]
The author then proceeds to mention that apart from obvious assets
such as movable property like motor vehicles, tools and
coins et
cetera and immovable property they are also other assets which can be
taken into account like shares in companies, membership
interests in
close corporations, loan accounts, share options and pension
interests. I am also in agreement with the argument
as advanced by Mr
Walters that a party‘s vested rights in immovable
property if such a property has been acquired in
terms of the duly
executed written agreement cannot be affected if the
registration of the transfer of the property has not
been concluded.
[35]
To put it differently, the rights that a party has acquired in terms
of an agreement to own the property remains unaffected.
Such a right
therefore can be regarded as an asset which a party can acquire
during the subsistence of a marriage which can either
be regarded as
an asset for the purposes of the division of the joint estate, or in
an appropriate case for the forfeiture of a
benefit of the marriage
in community of property. In this particular case the First
Respondent at the time of the divorce has forfeited
his right in the
immovable property which could not later have been transferred into
his name.
[36]
In
Persad v Persad and Another
1989 (4) SA 685
(D)
the court
after having granted a decree of divorce to the plaintiff ordered
that the City Council transfer to the plaintiff all
the rights, title
and interests in the lease which her husband had concluded with the
City Council, in respect of a house administered
by the City Council
under a municipal housing scheme. The court thus held that the
tenancy of the house was a benefit derived from
the marriage and was
an asset of the joint estate acquired during the marriage: it had
been acquired for the purposes of the marriage,
for the purposes of
the matrimonial home that was needed because of the marriage. The
court thus held at the benefit was a patrimonial
one as it had a
value to the joint estate.
[37]
The court was of the view that the tenancy was a patrimonial benefit
of the marriage. The principle laid down therefore was
that all
benefits of a patrimonial nature in cases where the parties did not
establish or prove a real right in immovable property
forms part of
the joint estate that can be forfeited at the dissolution of the
marriage. See also
Wertheim v Wertheim 1976(4) SA 633 (W); Matthee
v Koen en Andere
1984 (2) SA 543
(C)
. In this particular case,
the parties have a stronger right in a form of a limited real right,
which it could enforce against the
owner as well as a third party.
It was a right to claim transfer of the immovable property which was
an asset in the joint
estate for the purposes of the court making an
order of forfeiture which in my view can be rightfully regarded as an
asset and
a patrimonial benefit for the purposes of forfeiture.
[38]
It is clear that as from the date of divorce the immovable property
could only have been transferred to the Applicant and not
to both the
Applicant and the Respondent. Had the transfer thus taken place
before the parties were divorced the property would
have been
transferred into the name of the Applicant as a as a result of the
forfeiture order. Unfortunately for the Applicant,
the transfer at
the time of divorce did not take place and only took place much later
on 23 February 2012, when it was transferred
from the City of Cape
Town as a registered owner into the name of Applicant and First
Respondent.
[39]
This was clearly an error. Mr Walters relying on the learned authors
Muller and Pope: Land Title In South Africa at p109 argued
that while
dominium, when properly registered against the title deed of the land
may have full effect as a real right, but where
such a right which
does not have the quality of a real right it cannot become such
through an erroneous registration and that such
qualities must
include a valid underlying causa and intention to transfer title.
Where registration thus takes place without all
these requirements
for transfer having taken place whether either intentionally or in
error the court will order rectification
to reflect the true and
correct position. I agree with this contention. This is clearly what
happened in this case where registration
took place in the name of
both the Applicant and First Respondent without having regard to the
true nature of the respective rights
to the property. This was done
despite an effort that was made by the Applicant through her
attorneys in a letter dated 25 June
2012
[6]
to the City Council informing them that Applicant as a result of the
forfeiture order by the divorce court was sole and exclusive
owner of
the property, and that the necessary amendments be made to the
transfer deed to reflect the Applicant as being the sole
owner of the
property, where such a situation exists the court is entitled to
rectify such an error. See
LAWSA
Vol 27 (2
nd
ed)
para
231
at page
236
,
where the learned authors stated the following:
“
(a)
Real rights and ante omnia ownership may be acquired by various modes
which are not reflected in the deeds office. Illustrations
are where
ownership is acquired by prescription, by expropriation, by statute
or as a result of a marriage in community of property.
Moreover, it
is now accepted that a fideicommissary acquires ownership of
immovable property upon fulfilment of the fideicommissary
condition
without the need for registration. In all these instances the true
owner is in a stronger position than a bona fide acquirer
who
acquires the property from the person registered as owner in the
deeds registry. Moreover, several modes of termination of
real
rights, like abandonment, confusio and the extinction of a principal
debt secured by a bond are not reflected immediately
in the deeds
registry.
(b)
Although the registrar does not play a passive role and examines
every deed carefully before registering it, registration may
nevertheless take place without the requirements for transfer having
been complied with. Thus the transferor may not have had the
capacity
to transfer the thing, the signature of the transferor may have been
forged, or the transferor may have been fraudulently
induced to sign
a transfer deed in the belief that it was another type of document.
In the above cases the court will order rectification
of the deeds
registry records in favour of the original owner vis-à-vis a
bona fide acquirer.”
[40] There was thus
a fundamental flaw to the underlying causa and intention of the
Department and ownership of the property was
transferred to both the
Applicant and First Respondent in undivided shares as if they were
still married in community of property.
The true state of affairs
was, that it was done without reference to the divorce order and also
without reference to the forfeiture
of all the rights, real or
contingent to the property as directed by the divorce order. It seems
that the officials of the Department
overlooked or failed properly to
appreciate the terms of the divorce order and then failed to
implement or adhere thereto. The
Applicant therefore made out a case
for this court to intervene and remedy the error.
[41]
As to the question of costs both parties it seems are indigent,
Applicant was assisted on a pro bono basis and the First Respondent
was assisted by Legal Aid South Africa. Mr Walters on
behalf of the Applicant submitted that if the court should find
that
the Applicant be registered as the sole owner of the property, that
it would be fair to direct that all and any disbursements
reasonably
incurred on behalf of the Applicant in advancing her claims, and any
costs in giving effect to the order, should be
paid by First
Respondent. I am not convinced that this would be an appropriate
order given the fact that both the parties could
not even afford to
proceed with this matter in this court without the invaluable
assistance given to them by Mr Walters, and in
particular his firm of
instructing attorneys on a pro bono basis. I hereby wish to express
my gratitude and admiration to them
for a job well done. I am
rather convinced that the First Respondent would not be able to pay
any costs whatsoever.
[42]
In the result therefore I make the following order:
1)
That the Applicant is the sole owner of the immovable property known
as Erf [6…….] [K…….], in the
City of Cape
Town, Division Cape, Western Cape Province, in extent 106 (One
Hundred and Six) metres, as will appear from General
Plan S.G No.
49/2010 and held by Certificate of Consolidated Title No. [T……..]
under Deed of Transfer [T………],
also known as
[C…….], [S…….], [K……..].
2) It is directed
that the Deed of Transfer [T………] over the
property, now registered in the deeds office by
the Second
Respondent, be rectified to reflect that the Applicant, namely
“Virginia Vuyokazi Mpela”, is the sole owner
of the
property, and that the title deed to the property be rectified
accordingly.
3) The First
Respondent is directed to sign all documents and take all / any
further steps necessary to cause the transfer of his
registered
undivided half share in the immovable property to the Applicant and
have it registered in the Applicant’s name
such that the
Applicant becomes the sole registered owner of the immovable property
in question.
4) It is further
ordered that should the First Respondent refuse and/or fail to sign
the above-mentioned documents and/or take such
steps when duly
requested to do so, the Sheriff of the High Court for the District
where the immovable property is located is authorized
and directed to
sign all documents and take all/any steps required to effect
registration of transfer of the Respondent’s
half undivided
share in the property to the Applicant on behalf of the Respondent.
5)
I make no order as to costs.
R.
C. A. HENNEY
Judge
of the High Court
[1]
18.
Certain damages excluded from community and recoverable from other
spouse
Notwithstanding
the fact that a spouse is married in community of property-
(a)
any amount recovered by him or her by way of damages, other than
damages for
patrimonial
loss, by reason of a delict committed against him or her, does not
fall into the
joint
estate but becomes his or her separate property;
(b)
he or she may recover from the other spouse damages in respect of
bodily injuries
suffered
by him or her and attributable either wholly or in part to the fault
of that spouse
and
these damages do not fall into the joint estate but become the
separate property of the
injured
spouse.
[2]
Record
at 18 – 20.
[3]
Record
p102 – 105.
[4]
See
record page 104 under the heading “Status History
Information”.
[5]
Record
page 102 – 105.
[6]
Record
p99 – 100.