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2012
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[2012] ZAGPJHC 221
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Marathon Earthmovers CC v Dos Santos and Another (20546/2005) [2012] ZAGPJHC 221 (24 August 2012)
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO: 20546/2005
DATE: 2012-08-24
In the matter between
MARATHON EARTHMOVERS
CC
.............................................
Applicant
and
AVELINO VASCO DOS
SANTOS
..............................................
First
Respondent
DEBORAH DOS
SANTOS
...........................................................
Second
Respondent
J U D G M E N T
WILLIS; J:
[1] The applicant seeks an order declaring the half-portion of erf
1153 Ridgeway Extension 5 Johannesburg Gauteng (‘the property’)
co owned by the first respondent to be specially executable,
together with an order that a writ of execution be issued against
the
property. The applicant also seeks an order for costs against the
first and second respondents.
[2] Judgment was obtained against the first respondent in favour of
the applicant on 28 October 2009 in the sum of R128 983- together
with interest and punitive costs. The Sheriff was duly instructed to
attend at the property to attach the movable property of
the first
respondent. The Sheriff issued a return of service indicating that
the first respondent had no movable assets.
[3] The first respondent has confirmed that he has no movable assets.
Accordingly, the applicant seeks to proceed against this
half share
in the immovable properties situated erf 1153 Ridgeway Extension 5
Johannesburg. It is common cause that the first
respondent is the
registered owner of this half share in this particular property.
[4] The basis upon which the first respondent seeks to resist the
order sought by the applicant is that he was divorced from the
second
respondent on 4 June 2010 (i.e. after the judgment had been obtained)
and that, in terms of the agreement of settlement
between himself and
the second respondent which was made an order of court, the following
is recorded in respect of this half share
in the property (which is
commonly known as 17 Alamein Street, Robertson Johannesburg) –
“The defendant will transfer his half share of the immovable
property to the plaintiff”. The defendant to whom reference
is made is the first respondent in this case, the plaintiff was the
second respondent.
[5] I am referring here to the order made in divorce action between
the parties. It is common cause that the first respondent
has not
yet complied with that term of the divorce settlement agreement. Mr
Lindeque, who appears for the first and second respondents,
has
relied in this regard very strongly on the case of Corporate
Liquidators Pty Ltd and Another v Wiggle and others
2007 (2) SA 520
(T). I hope that I may be forgiven for quoting from a text book,
rather than directly from the learned authorities, but I plead,
in
mitigation, that I am sitting delivering an ex tempore judgment in a
busy Motion Court. In Wille’s Principles of South
African Law,
9th Edition by Francois de Bois, Butterworths, 2007 at p519, the
following is said in respect of derivative acquisition
of ownership:
The most important derivative modes of acquisition of ownership are
delivery in a case of moveable and registration in a case of
immovable. Derivative acquisition of ownership describes transfer of
ownership from the predecessor in title to the successor.
In order
to transfer ownership to main requirements must be satisfied. There
must be agreement between the parties to transfer
ownership and there
must be a form of conveyance – delivery conveys ownership in
the case of moveable and registration in
the Deed's registry does the
same in the case of immovable property. In certain circumstances,
ownership or a share therein transfers
automatically or by operation
of law. Thus on married and community of property, insolvency and
death, ownership in an estate
passes automatically without a
registration or delivery. In the case of division of common
property, however, ownership does not
pass automatically but only on
delivery of registration.
The learned authors quote as authority for the proposition that in
the case of division of common property, however, ownership
does not
pass automatically but only on deliver on delivery or registration:
Voet 41.1.1; Maasdorp Institutes of South African
Law Vol 2 at page
69 and Jones Conveyancing at page 381.
[6] In what I shall refer for the sake of convenience as ‘the
Wiggle case’ (supra), Hartzenberg J, delivering the judgment
of
the court ,said:
"Our system of deeds registration is a negative one where the
deeds registry does not necessary reflect the true state of
affairs."
(See paragraph [16] of his judgment). This is correct, but it must
be understood that this does not mean that the failure to register
a
transfer, consequent upon a court order, of property that was owned
by and which remains registered in the name of a particular
person
that the property can, merely by reason of the settlement agreement
between the parties that was made an order of court,
can, in fact, be
deemed, as against the whole world, to be owned by someone else. As
the quoted passage from Wille’s Principles
above makes clear,
there must be both an intention and registration for the passing of
ownership to take place. In other words,
if registration has taken
place for example by way of fraud, then obviously the intention was
missing and the fact that ownership
is registered in the Deeds
Registry Office is not decisive. For a transfer of ownership of the
kind in question to prevail against
the whole world, there must both
be an intention to transfer and actual registration of transfer in
the Deeds Registry Office
by registration. The two go together.
[7] I regret to say that I consider the judgment of Hartzenberg J,
with which judgment Mavundla J and Ranchod AJ concurred, to
be
incorrect in law. Fortunately, however, the facts in this particular
case are in any event distinguishable from those in the
Wiggle
matter, in two significant respects: (1) in the Wiggle matter the
parties were married in community of property whereas
in the present
matter the parties were married out of community of property and (2)
in the settlement was made an order of court
in the Wiggle matter,
the following was recorded:
"Verweerderes word die uitsluitlike eienares van … (the
property in question)."
[8] The wording was very different from the wording in the case
before me. The court ordered the defendant to transfer his half
share of immovable property to the plaintiff. The court did not make
an order that the plaintiff became, upon the making of that
order,
the owner of the property in question. The Wiggle case illustrates
that hard cases can make bad law. It is impossible in
the Wiggle
matter not to have considerable sympathy for Mrs Wiggle (number one).
In the result the applicant succeeds and an order
is made in terms
of Prayers 1 and 2 of the notice of motion dated 24 April 2012 and
the first and second respondents are jointly
and severally liable to
pay the costs, to pay the applicant's costs in this application.
COURT ADJOURNS
Counsel for the applicant: Adv D Mahon.
Counsel for the first and second respondents: Adv I M Lindeque.
Attorneys for the applicant: Schindlers.
Attorneys for the respondents: Smit & Grove.
Date of hearing: 22nd and 24 August 2012
Date of judgment: 24 August 2012.