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[2010] ZAGPJHC 155
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M v M (21149/2011) [2010] ZAGPJHC 155 (10 August 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE SOUTH GAUTENG
HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE
NO:
21149/2011
NOT
REPORTABLE
DATE:
2011-08-10
In
the matter between
R
M
APPLICANT
and
N
M
RESPONDENT
Interdict
– requirements – husband and wife co-owners of
matrimonial home – divorce proceedings contemplated –
wife (applicant) seeking interdict against husband to protect her
rights as co-owner pendent lite – failure to show a clear
or
prima facie right or reasonable apprehension of harm –
application dismissed.
J
U D G M E N T
VAN OOSTEN, J
:
The applicant and the respondent were married to each other on 19
October 1996, out of community of property, excluding the
accrual
system. In terms of the antenuptual contract the respondent undertook
"in consideration of the said intended marriage"
to "give
and grant and settle upon" the applicant "an undivided one
half share in the immovable property owned by
the respondent being
erf 205 Bryanston and situate at 15 Ashley Avenue Bryanston”
(the property). The marriage relationship
between the parties has
irretrievably broken down. The respondent left the property, which
until then had been the matrimonial
home of the parties, in January
2011. No divorce proceedings have as yet been instituted by either
party. During divorce settlement
negotiations the applicant's
attorney sought an undertaking by the respondent “not to
encumber the property in any manner
or cause the property to be
disposed of” pending the outcome of the proposed divorce
action. The respondent through his attorney,
refused to give the
undertaking. The respondent’s refusal, which the applicant
describes as "point blank" and "unreasonable",
the applicant states, instilled in her the suspicion that the
respondent has no intention of honouring the terms of the antenuptual
contract, which prompted her "as a last resort" to launch
the present application, in which she seeks the following three
interdicts against the respondent,
pendente lite:
1. From alienating,
mortgaging or encumbering the immovable property.
From interfering with the
conducting by the applicant of her business from the property.
2. From causing third
parties to attend at the property.
The respondent opposes
the relief sought
inter alia
on the ground that the applicant
has failed to satisfy the requirements necessary for the granting of
an interdict.
The applicant has since
moving onto the property some 17 months prior to the marriage,
conducted her business known as Trade Marketing
Link CC, from the
property. She has employed two staff members to assist her in the
business. It is common cause between the parties
that the applicant's
undivided half share in the property has not been registered against
the title deeds of the property. The
respondent concedes and admits
the applicant's entitlement to one half share in the property. The
respondent states that he has
never denied the applicant's
entitlement and indeed, in this application, tenders payment to the
applicant of half of the nett
proceeds realised from the sale of the
property.
The applicant, in order
to succeed on the first interdict sought, must show
inter alia
a clear or
prima facie
right. In support hereof the
applicant states the following.
"7.1 My rights to a
share of the property are enshrined in the antenuptual contract and
will be claimed in divorce proceedings
to be launched by either the
respondent or myself shortly.
2. The contractual rights
contained in the antenuptual contract have never been disputed by the
respondent and comprise a clear
right to protect same in
circumstances where the terms of the antenuptual contract provide for
a share in the property and not
a share of the debts arising from the
mortgage bond.
3. As a result of the
respondent's conduct third parties dealing with the respondent being
estate agents or unsuspecting buyers
have no way of ascertaining from
an inspection of the title deeds of the property that I have the
right which I claim".
This, in my view, and as
I read the papers, is not the right relied upon by the applicant for
purposes of this application. The
applicant, as correctly submitted
by counsel for the respondent, seeks to extend her right to
co-ownership to a right to security
of tenure by way of an indefinite
extension of the co-ownership arrangement, which would deprive the
respondent of his right to
terminate his ownership in the property
and compel him to remain co-owner thereof against his will. It is
clear that the applicant's
right is that of a co-owner of the
property. Absent a divorce settlement the property will have to be
sold in order to give proper
effect to the rights of the co-owners.
The eventual sale of the property accordingly is unavoidable and is
admitted on the papers.
The applicant has
accordingly failed to show a clear or
prima facie
right
relating to the first interdict sought. The application for the first
interdict must therefore fail on this ground alone.
But it does not
end there. The applicant has moreover failed to show a reasonable
apprehension of harm. The respondent, as I have
indicated, admits the
applicant's entitlement to one half share in the property. There is
nothing in the conduct of the respondent
referred to by the applicant
in the papers before me, which would justify a reasonable
apprehension of harm concerning the rights
of the applicant. The
applicant's reliance on a right to "possession" of the
property for purposes of conducting a business
is misplaced. She
obviously has no right to hold the respondent at ransom on the basis
of a non-existing permanent right to conduct
a business from the
property. The respondent has tendered to pay to the applicant one
half of the nett proceeds from the sale of
the property which in all
respects duly recognises the rights of both the respondent and the
applicant in regard to the property.
I am accordingly not satisfied
that the applicant will suffer any harm should the property be sold.
This brings me to the
second interdict. Nothing has been put forward by the applicant in
support of the interdict she now seeks
against the respondent. The
application in regard to the second interdict must accordingly fail.
Finally, I turn to the
third interdict. All that the applicant states in support of the
interdict sought is the following.
"8.4 From the past
conduct of the respondent in bringing lady friend(s) to the property
it is apparent that he has no respect
for my dignity and will
continue his conduct unabated unless ordered to desist".
The
allegations are vague and unsubstantiated. The respondent in reply
hereto refers to one single incident when a lady friend,
who had
accompanied him while taking the dogs for a walk in a nearby park,
was allowed to use the toilet facilities at the property.
This of
course does not constitute unlawful conduct nor does it provide
justification for the applicant's expressed fears that
the respondent
will "continue his conduct".
In the result the
application is dismissed with costs.
COUNSEL
FOR THE APPLICANT
..
ADV
(Ms) K GREEN
COUNSEL
FOR THE RESPONDENT
.
.
ADV
(Ms) T EICHER