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[2013] ZAGPJHC 324
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Dube v Hlako (11329/2013) [2013] ZAGPJHC 324 (28 November 2013)
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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NUMBER:
11329/2013
In the matter between:
DUBE,
PETER JAMES
Applicant
and
HLAKO,
NARE RACHEL
Respondent
JUDGEMENT
NGALWANA AJ
Introduction
[1] The applicant
seeks an order that:
1.1 the
parties’ joint ownership be terminated forthwith in Portion 42
of erf [………], Registration
Division I. R.,
Province of Gauteng, situated at […….], Friendship Town
Houses, […….],Gauteng Province
(“the property”);
1.2 the
property be sold by public auction or, in the alternative, by private
auction through any auction company appointed
by either party within
15 days of the Court Order to that effect;
1.3 the nett
proceeds from the sale of the property be applied first towards
refunding the applicant’s mortgage
bond settlement to Absa Bank
Ltd under mortgage bond number […..] in relation to the
property in the total amount of R56 409.59,
and the balance to
be divided equally between the parties;
1.4 costs of
suit in the event of opposition.
The Facts
[2] The common
cause facts (to the extent relevant) are these:
2.1 The
parties have been in a long term intimate relationship which,
according to the respondent, has endured since
1997.
2.2 Their
intimacy with each other has produced no children.
2.3 They
acquired the property jointly in July 2001 for a consideration of
R68 000.00 and it was officially registered
in their names
jointly in May 2002.
2.4 They then
lived together on the property.
2.5 Following
the respondent’s seeking and obtaining a protection order
against the applicant in September 2011
on allegations of domestic
violence, the applicant vacated the property and started renting
elsewhere.
2.6 The
respondent continues to live on the property unburdened by mortgage
payments and rent.
2.7 The
applicant has been paying the bond since inception. He settled
the balance of the bond in full during
2010 after receiving pension
and provident fund monies. The balance of the bond was
R56 409.59.
2.8 The
applicant continues to pay for municipal services in relation to the
property, now valued at “
over R400 000.00”
.
The Parties’
Respective Submissions
[3] The applicant
says because he and the respondent are, since September 2011, “
no
longer an item”
, he wants their joint ownership of the
property terminated, the property sold on auction and the proceeds
applied as described
above.
[4] The respondent
baulks at this, saying she and the applicant “
concluded a
traditional marriage in May 2006”
. In support of this
averment she invokes a lobola agreement and alleges that she and the
applicant “
went through the normal traditional ceremony
joining [them] as husband and wife”
. Consequently,
she asserts, there exists a real dispute of fact which cannot be
satisfactorily determined without the aid
of
viva voce
evidence. So, she asserts further, it is inappropriate to have
sought recourse by way of motion proceedings. She then
says the
application must for that reason be dismissed, and that “
a
special punitive cost order be granted against the Applicant as the
Applicant’s Application constitutes nothing more than
a
deliberate and calculated attempt to prejudice [her] by not placing
all the relevant facts before this Honourable Court”
as
regards the existence of a traditional marriage or customary union.
[5]
That was the position the respondent adopted in her answering
papers. In argument, however, Counsel for the respondent
was
less sanguine as regards
dismissal of the
application. While baulking at referral of the alleged dispute
of fact to oral evidence, he was keen on the
matter being referred to
trial so that the respondent could “
lead
exact particularised evidence of the procedures followed and the
exact dates involved in the formation of the marriage”
.
Is There A Real
Dispute of Fact?
[6]
The notion that a reasonably foreseeable real dispute of fact
militates against the institution of legal proceedings by
way of
motion or application is trite. If motion proceedings are
instituted in such circumstances, the Court has one of three
options:
(1) dismiss the application, or (2) on application
[1]
refer the matter to oral evidence by deponents to affidavits that
have been filed of record, or (3) refer the matter to trial (the
founding affidavit serving as particulars of claim, the answering
affidavit as a plea and the replying affidavit (if any) as a
replication) where evidence can also be introduced from persons who
have not deposed to affidavits.
[7] There is no
application by either party for a referral to oral evidence. In
fact, the respondent’s Counsel
murmured demurely against it and
then sought to persuade the Court from the Bar that a referral to
trial might be the right option.
The applicant would have
neither option entertained.
[8] A real or
genuine dispute of fact does not arise simply by an allegation to
that effect being made. More is required.
The respondent
must set out matter which tends to establish the materiality of the
facts being pleaded, and cannot validly avoid
the relief sought by
simply alleging, without more, the existence of a customary
marriage.
[9] It is clear
that the respondent prefers the relatively more elaborate process of
divorce proceedings contemplated in
section 8
of the
Recognition of
Customary Marriages Act, 120 of 1998
which confers upon a Court the
power,
inter alia
, to grant a decree of divorce on the ground
of the irretrievable breakdown of the marriage and to grant
maintenance orders.
But there must first be a marriage to
dissolve. On the papers the respondent has failed to plead
sufficient facts as would
prima facie
establish the existence
of a traditional or customary marriage. Lest this be
misunderstood, it is important to stress that
it is not the
evidence
of the existence of a valid customary marriage that the respondent
must advance; it is rather sufficient averments that tend
prima
facie
to show that a customary marriage exists.
[10]
Pleading co-habitation is not enough. The respondent was
required to have pleaded at least some of the elements
of a customary
marriage that she says exists. Alleging simply that she “
went
through the normal traditional ceremony”
is too vague and insubstantial and thus insufficient to give rise to
the kind of dispute of fact that should be referred to oral
evidence
or trial.
[2]
[11]
Two of the crucial elements of a customary marriage that have been
identified by the Courts include (1) the handing
over of the bride by
her family to the groom’s family (
ukusiwa
kukamakoti emzini ehamba noduli
)
and (2) ukuyalwa kukamakoti ngoomama noodade bomyeni (the “
coaching”
or “
grooming”
of the bride by the groom’s female relatives).
[3]
The respondent alleges neither. She cannot now seek to
establish by way of
viva
voce
evidence at trial a case she has not pleaded or made out in her
papers.
[4]
[12] I am
thus satisfied that the allegation of the existence of a customary
marriage is too vague and insubstantial
to found the sort of factual
dispute that warrants a referral to oral evidence or trial.
The Merits
[13]
As regards the merits of the application, the relief sought is not a
novel one. It is founded on the
actio
communi dividundo
which originated in Roman law, was adopted in Roman-Dutch law as the
actie
van deelinge
or
actie
van scheydinge
,
and cascaded to our present law. It was described in
Robson
v Theron
[5]
as having two purposes, namely, (1) division of joint property and
(2) payment of
praestationes
personales
relating
to profits enjoyed or expenses incurred in connection with the joint
property
[6]
. Its basic
underlying notion is that no co-owner is normally obliged to remain
such against his will.
[14] The
respondent does not dispute that the property is jointly owned by her
and the applicant. She does not
dispute that the applicant has
been paying the mortgage bond and that he settled the balance of
R56 409.59. She does
not dispute the value placed upon the
property by the applicant. While she alleges that she has
contributed to settling “
all accounts [she] receives for
consumption charges and levies on the property”
she
advances no evidence of this. Her elevation of what the
applicant terms “
an intimate relationship”
to the
status of marriage in community of property by reason of a customary
marriage is vague and insubstantial. In the circumstances
I can
find no lawful obstacle to exercising the Court’s discretion in
favour of granting the relief sought.
Appropriate Orders
[15] It seems
to me that the termination of joint ownership must necessarily be an
instance of, and arise from, the
disposition of the property, rather
than (as the applicant has couched his prayers) being a separate and
self-standing order that
precedes the disposition. If it were
to stand alone, the danger is conceivably that the order may be
interpreted as terminating
the respondent’s share in the
property (since the order is in the applicant’s favour)
resulting in her being nudged
out of entitlement to a share in the
proceeds of the sale of the property. Since Judges are not
Shakespearean Soothsayers,
it is always best to craft orders in ways
that live little room for disparate interpretations that may give
rise to further tiff
and litigation.
[16] In the
result, I make the following orders:
1.
The parties may by agreement dispose of the
property either by public auction or by private auction within such
reasonable period
as may be agreed between them, thereby bringing
joint ownership of the property to an end.
2.
Failing agreement between the parties as
regards the manner of the disposition of the property or the
reasonable period within which
this must be done, the applicant may
within 20 days of this order dispose of the property by private or
public auction, whichever
is convenient for him.
3.
The nett proceeds from the sale of the
property must be applied first towards refunding the applicant’s
mortgage bond settlement
to Absa Bank Ltd under mortgage bond number
[………] in relation to the property in the total
amount of R56 409.59,
and the balance must be divided equally
between the parties.
4.
The respondent must pay the applicant’s
costs on a party and party scale.
V
Ngalwana
Acting
Judge of the High Court
Appearances
For the applicant:
DZ Kela
Instructed by:
Ndumiso P Voyi Inc
For the respondent: M
Traub
Instructed by:
Jouberts Attorneys
Date of hearing: 25
November 2013
Date of judgment: 28
November 2013
[1]
It has been found that it is undesirable for a Court
mero
motu
to refer a matter to
viva
voce
evidence: see
Santino
Publishers CC v Waylite Marketing CC
2010 (2) SA 53
(GSJ) at 56F-57B
[2]
King
William’s Town Transitional Local Council v Border Alliance
Taxi Association
2002 (4) SA 152
(E) at 156I-J
[3]
Motsoatsoa
v Roro and Another
[2011] 2 All SA 324
(GSJ) at para [19]
[4]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) at 205D-206B
[5]
1978 (1) SA 841 (A)
[6]
At 854H-855A