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[2015] ZAGPJHC 87
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T v T and Another (14/27343) [2015] ZAGPJHC 87 (13 March 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 14/27343
DATE: 13 MARCH 2015
In the matter between:
[T………],
[R…………]
............................................................................................................
Applicant
And
[T……..],
[N……..]
.......................................................................................................
First
Respondent
THE STANDARD BANK OF SOUTH AFRICA
LTD
..........................................
Second
Respondent
J U D G M E N T
MAKUME J
INTRODUCTION
[1] In this application the applicant
seeks several orders couched in the alternative against the first
respondent all aimed at
achieving a termination of the co-ownership
that exists between the applicant and the first respondent (“the
parties”).of
certain immovable property situate at 147 T………
T…., Road Three, W……. Park, Johannesburg
(“the
property”)
[2] The parties have been living apart
since the year 2001 and are presently engaged in divorce proceedings.
The divorce action
is set down to be heard in this Division on 15
April 2015.
[3] The second respondent is a
mortgagor in respect of the property and has an interest in the
disposal of the property
because of an amount of R111 000,00 due
to it by the parties. The second respondent’s loan is secured
by a bond registered
over the property. Respondent in this matter
has reference only to the first respondent.
[4] It is common cause and not in
dispute that the parties are married in community of property. It is
also not in dispute that
the parties jointly acquired the property
during the year 1995 and entered into a loan agreement as joint
purchasers with the second
respondent who advanced the purchase
price. It is further not in dispute that the parties are joint
debtors of the second respondent.
WHAT IS IN DISPUTE
[5] The applicant says that as a joint
owner of the property she is entitled to a division of the property
whilst the respondent
says that the applicant waived her rights to
division of the property on the 9th February 2012 when the parties
entered into a
deed of settlement.
[6] It is the validity of that deed of
settlement which is in issue and may be dispositive of the matter.
HISTORICAL BACKGROUND
[7] It is necessary to set out a brief
narrative of certain facts and circumstances giving rise to this
application which bear on
the question to be decided as they emerge
from the papers.
[8] The applicant left the common home
which is the property during the year 2001 taking with her the two
children born out of their
marriage namely M…… and L…….
[9] On the 9th February 2012 the
parties concluded a deed of settlement. The preamble as well as
clauses 1 and 2 of that deed of
settlement are relevant in this
matter and I deem it necessary to quote same in full:
“Deed of Settlement
(a) Whereas the plaintiff has issued
summons out of the above honourable court claiming inter alia a
decree of divorce.
(b) The defendant admits that there has
been an irretrievable breakdown of the marriage and that there is no
reasonable prospect
of reconciliation between the parties.
(c) The parties have reached agreement
subject to approval of the above honourable court concerning division
of the assets.
(d) The parties wished to record the
terms of the aforesaid agreement which agreement is conditional upon
a decree of divorce being
granted by the above honourable court in
this action.”
THE PARTIES AGREE AS FOLLOWS:
“1. Immovable property
Should the property at 147 T……
T…., Road Three, W……. Park, 1…….
be sold one-quarter
of the profit is to be paid to L……
and M…….. equally.
2. Movable property
Each party to retain assets which is in
his or her possession.”
[10] On the 17th February 2012 after
conclusion of the deed of settlement the applicant issued summons
against the respondent out
of the Regional Court, Germiston under
Case No CRC 142/12 in which action the applicant prayed as follows:
10.1 A decree of divorce on the grounds
of an irretrievable breakdown of the marriage.
10.2 As per settlement Annexure “A”.
[11] It is to be understood that
Annexure “A” refers to the deed of settlement that was
annexed to the summons and particulars
of claim to which I have
referred to above.
[12] It is common cause that on receipt
of the summons the respondent did not enter appearance to oppose same
as according to him
the matter had become settled. However it was the
Regional Court which was to have the last word on that matter.
[13] The matter was set down on the
unopposed roll. The applicant avers that she informed the respondent
about the court date and
requested him to be present.
[14] The applicant appeared at the
Germiston Regional Court. It is not clear on which date and whether
she was legally represented
or not. What happened in that court is
what the applicant says at paragraph 15 of her replying affidavit she
says the following:
“Upon attending court for
purposes of making the agreement an order of court that the
discrepancies relating to a failure
to provide for maintenance and
contact as well as division of the joint estate was pointed out by
the magistrate resulting in the
magistrate refusing to make the
agreement an order of court.”
[16] No divorce was granted and the
deed of settlement was not made an order of court as prayed for. The
question is thereafter
what is the status of the deed of settlement?
I will revert to that aspect later.
[17] Having not succeeded in securing a
divorce the applicant instructed her present attorneys of record who
on the 23rd May 2012
filed a notice withdrawing the action instituted
in the Germiston Regional Court. Simultaneously with that notice of
withdrawal
the applicant’s attorneys addressed a letter to the
respondent inviting him to a without prejudice consultation with a
view
to resolving matters incidental to the divorce action.
[18] The respondent did not avail
himself of the opportunity to discuss the issues as a result the
applicant’s attorneys issued
summons in the South Gauteng High
Court on the 29th June 2012 and on the 1st August 2013 the respondent
entered appearance to defend.
[19] Pleadings are closed in that
matter and as is practice applicant’s attorneys addressed
correspondence to the respondent’s
attorneys making proposals
for settlement. In October 2013 the applicant’s attorneys sent
an unconditional tender in terms
of Rule 34(1) of the Rules of this
Court in which the applicant proposed that the property be sold for
R600 000,00 and that the
nett proceeds of such sale be divided
equally between the parties after payment of the mortgage bond
liability, estate agent commission,
rates clearance costs as well as
bond consolation costs. The respondent did not respond to that
proposal.
[20] On the 7th November 2013 the
parties appeared at roll call before the Deputy Judge President
Mojapelo for allocation of a judge.
It is not clear what transpired
on that day and why no judge was allocated to hear the matter. The
parties have different versions
and reasons why the matter could not
proceed on that day. However, it is not crucial to know the reasons
as that is not relevant
for purposes of this judgment.
[21] What seems to have happened
thereafter is that the parties held a discussion on the 7th November
2013 at court. This appears
from the contents of a letter written by
the applicant’s attorneys to the respondent’s attorneys
dated the 12th December
2013 which reads as follows:
“Enclosed herewith kindly find an
agreement of settlement resolving the outstanding issues herein in
accordance with the discussions
we held at the trial of the
aforementioned matter on 7th November 2013. Our client is eager to
resolve the matter as timeously
as possible and we request that your
client revert to our offices as his earliest convenience regarding
his agreement forthwith.”
[22] In the proposed settlement
agreement once more as in the previous proposal the applicant
indicated that there shall be a division
of the joint estate and to
that extent that one Ruben Miller of RMB Trust was to be appointed as
the receiver and liquidator to
attend to the division of the joint
estate.
[23] As with the previous proposal the
respondent did not reply thereto let alone to acknowledge receipt
thereof.
[24] On the 16th January 2014
applicant’s attorneys addressed a letter to the respondent’s
attorneys calling on them
to give this matter their attention and
revert to them still nothing happened. Several other letters followed
with no response
not even an acknowledgment of such letters.
Ultimately the applicant’s attorneys reported the conduct of
respondent’s
attorneys to the Law Society.
[25] It is against this background that
on the 28th July 2014 the applicant launched this application.
THE STATUS OF THE DEED OF SETTLEMENT
POST THE WITHDRAWAL OF THE GERMISTON CASE
[26] The respondent argues that this
application should be dismissed because the parties entered into a
deed of settlement in which
according to him the immovable property
belongs to him. The applicant denies that in the settlement
agreement she gave away her
share of the property. Secondly, it is
the applicant’s case that the deed of settlement not having
been made an order of
court falls off and is of no further use
between the parties.
[27] It is common cause that this deed
of settlement was drawn up by some individual whose legal
qualifications and knowledge of
commercial agreements is not known
but is clearly doubtful judging by the words used and it is
accordingly to be doubted if that
is what the parties meant.
[28] In the first instance the preamble
suggests that at the time the agreement was concluded legal action by
way of summons had
already commenced. This is not correct because
summons was issued a week later.
[29] Paragraph 1 of the deed of
settlement dealing with the immovable property says that in the event
the property is sold then
the children of the marriage will be
allocated one-quarter of the nett profits thereof. Clause 1 does not
say what should happen
to the balance of the nett profit
neither does it say who should sell the
property. There is nowhere in this deed of settlement where it is
said that the property
shall become the sole asset of the respondent
or the applicant. It is therefore not correct for the respondent to
attach a meaning
to the clause that is not there in the agreement.
[30] His Lordship GREENBERG JA in the
matter of Norman v Hughes and Others
1948 (3) SA 495
at page 505 (AD)
said the following regarding interpretation of words used in a
contract:
“It must be borne in mind that in
an action on a contract the rule of interpretation is to ascertain
not what the parties’
intention was but what the language used
in the contract means that is what their intention was as expressed
in the contract.”
[31] In the words of the deed of
settlement the parties agreed to give their children a quarter of the
proceeds leaving for themselves
to share the three-quarters and that
situation was to happen only in the event that the property is sold.
If the property is not
sold then each of the parties retained equal
shareholding to the property.
[32] The deed of settlement is still
valid it was never conditional. All it means is that if the court
was satisfied with the terms
then it would be asked to make it an
order of court together with the granting of a divorce. The
settlement agreement is still
valid and has not taken away the
applicant’s portion or share of the property.
THE ACTIO COMMUNI DIVIDUNDO
[33] The respondent presented argument
that the application is premature and unnecessary as the issue raised
therein will be dealt
with at the divorce trial set down for hearing
on the 15th April 2015. The respondent is of the view that all the
disputes and
the relief sought in this application will be dealt with
at a trial. What the respondent does not say in clear terms is that
the
applicant has no right to bring this application neither does the
respondent say that that there are reasonable prospects that the
trial court will order that applicant forfeit the benefits arising
out of the marriage in community of property. The respondent
bases
his opposition to this application on the existence of the deed of
settlement. I have found that that agreement does not
give sole
ownership of the property to the respondent.
[34] The principles relating to the
actio communi dividundo were summarised by Joubert JA in the matter
of Robson v Theron
1978 (1) SA 841
(AD) in the following terms:
“(i) No co-owner is normally
obliged to remain co-owner against his will.
(ii) This action is available to those
who own specific tangible things (res corporalis) in co-ownership
irrespective of whether
the co-owners are partners or not, to claim
division of the joint property.
(iii) Hence this action may be brought
by a co-owner for the division of joint property where the co-owners
cannot agree to the
method of division.
(iv) It is for purposes of this action
immaterial whether the co-owners possess the joint property jointly
or neither of them possess
it or only one of them is in possession
thereof.
(v) This action may also be used to
claim as ancillary relief payment of praestationes personalis
relating to profits enjoyed or
expenses incurred in connection with
the joint property.
(vii) A court has a wide equitable
discretion in making a division of joint property. This wide
equitable discretion is substantially
identical to the similar
discretion which a court has in respect of the mode of distribution
of partnership assets amongst partners
as described by Pothier.”
[35] I am satisfied that the
applicant’s case meets the criteria as set out in the Robson
matter. The applicant made settlement
proposals to the respondent on
two occasions besides several letters addressed to his attorneys
calling for a discussion on the
proposal. The respondent did not
show any interest in arriving at a settlement that would have
included the property. He simply
kept quiet. It appears to this
Court that when the matter was due to be heard on the 7th or the 11th
November 2013 no agreement
could be reached resulting in a
postponement. The fact that the divorce matter is set down for
hearing on the 15th April 2015 is
no guarantee that the matter will
be heard judging by the conduct and attitude of the respondent.
[36] The respondent has in support of
his case referred me to the matter of Sasfin (Pty) Ltd v Beukes 1989
(1) SA. That matter dealt
with the legality or otherwise of a
contract concluded contrary to public policy. I see no relevance of
that case to the present
matter. Similarly the matter of Schoeman v
Rokeby Farming Co (Pty) Ltd
1972 (4) SA 201
(NPD) has no relevance
to the present matter. That matter dealt with an exception to the
particulars of claim in which the plaintiff
claimed from his partner
a contribution for losses suffered by the plaintiff on termination of
the partnership agreement. This
matter does not deal with a claim by
one partner against the other on dissolution. It is about dividing
an existing asset of an
existing partnership.
[37] The grounds of opposition relied
upon by the respondent have no merit. The fact that the main
divorce action is to be heard
on the 15th April 2015 does not make
this application premature. The outcome of that trial is not
dependent on the outcome of this
application. Co-ownership of the
property exists and on dissolution of the marriage co-ownership of
the property will still be
in existence and will have to be dealt
with in exactly the same manner as in this application.
[38] I am accordingly persuaded that
the applicant is entitled to bring an end to the joint of ownership
and I accordingly make
the following order:
1. Terminating, in terms of the action
communi dividundo, the Applicant and the First Respondent’s
co-ownership of the immovable
property situated at No. 1…..
T…… T…., Road Three, W…….. Park,
Johannesburg (“the
Property”).
2. Directing that:
2.1 Either party is to purchase the
other party’s half share in the property;
2.1 The party electing to purchase the
other party’s half-share in the property is to pay over to the
other party the sum
of money equal to half the market value of the
property;
2.3 such value of the property will be
determined on the average of three independent estate agents’
valuation thereof;
2.4 in dividing the proceeds of the
sale the parties shall first deduct one quarter of the proceeds and
pay same over for the benefit
of their children M…….
and L……….;
3. Alternative to prayer 3 above,
directing that in the event that the parties are unable to purchase
the other’s half-share
in the property, that:
3.1 The property is placed on the open
market for a period of 3 (three) months, from date of the order being
served on the First
Respondent’s attorney-of-record, and sold
accordingly;
3.2 That the moneys receive in this
regard are to be divided equally between the applicant and the First
Respondent, subject to
paragraph 2.4 above.
4. Alternative to prayers 2 and 3
above, directing that the property be placed on the market and
marketed for sale on such terms
and conditions as the Applicant may,
in her sole discretion, determine.
5. Granting the Applicant the power and
authority to direct and effect the sale and/or disposal of the
Property (including the power
and authority to solely negotiate and
agree on the terms and conditions upon which the Property is to be
sold and/or disposed of)
without recourse to the First Respondent.
6. Alternatively to prayer 5 above,
directing the First Respondent to co-operate fully with respect of
the marketing, sale and/or
disposal of the Property by inter alia,
doing all things and signing all documents necessary to give effect
to prayers 2.3 and
4 above;
7. Directing that, for so long as the
First Respondent retains the sole use, occupation and benefit of the
Property, the First Respondent
is to timeously pay all applicable
municipal, water and other charges, costs and amounts relating to, or
associated with, the Property
as well as amount payable, in terms of,
inter alia, the Property Sale and Purchase Agreement, the Loan
Agreement, the Mortgage
Bond, the Sectional Titles Act No. 95 of 1986
(the Property Relate Costs, as more fully defined I the attached
Founding Affidavit”),
calculate from January 2001 until such
time as the First Respondent no longer has the sole use, occupation
and benefit of the Property;
8. Directing that, for so long as the
First Respondent should (prior to registration and transfer of the
Property into a purchaser’s
name) no longer have the sole use,
occupation and benefit of the Property and pen ding registration
and transfer of Property
into such purchaser’s name, the
Applicant is empowered and authorised to administer the Property as
she, in her sole discretion,
may determine (including the sole power
and authorisation to let out the Property on such terms and
conditions as the Applicant,
in her sole discretion, may determine);
9 Directing that immediately after the
registration of the transfer of the Property into a purchaser’s
name and all costs
relating to the marketing, sale and transfer of
the Property including (but without limitation) estate agents’
commission
and any amount which may be owing g to the Second
Respondent (in terms of the Loan Agreement and Mortgage Bond) have
been paid:-
9.1 a 50% portion of the net proceeds
of the sale of the Property is to be paid to the applicant forthwith
subject to paragraph
2.4 above;
9.2 a 50% portion of the net proceeds
of the sale of the Property is to be paid to the First Respondent
(“the First Respondent’s
Share ”) subject to
paragraph 2.4 above;
10 The Sheriff is authorised and
directed to take any steps and do all such things that the parties
have been directed to take and/or
do in the parties’ stead in
the event that any of the parties fail/refuse and/or neglect to do
so themselves.
11. Costs of this application on a
party and party scale as against the First Respondent
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING 11 FEBRUARY 2015
DATE OF JUDGMENT 13 MARCH 2015
COUNSEL FOR APPLICANTS/ ADV: LINDA
DE WET
INSTRUCTED BY FLUXMANS INCORPORATED
30 JELLICOE AVE
ROSEBANK
TEL: (011) 328-1700
COUNSEL FOR THE RESPONDENT ADV: M DU
TOIT
INSTRUCTED BY DENGA INCORPORATED
TEN SIXTY BUILDING
JOHANNESBURG
TEL: (011) 492-0068