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[2011] ZAECPEHC 33
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Vorster and Others v Vorster and Others (1723/07) [2011] ZAECPEHC 33 (2 August 2011)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: PORT ELIZABETH
CASE NO: 1723/07
Heard on: 17/06/11
Delivered on: 02/08/11
In the matter between:
STEVE VORSTER
…........................................................................
First
Applicant
MATTHYS JOHANNES LOUWRENS EADES
….....................
Second
Applicant
GLORIA DOROTHY EADES
…....................................................
Third
Applicant
and
ROYDEN VORSTER
…................................................................
First
Respondent
ELIZABETH VORSTER
….......................................................
Second
Respondent
STEVE CHRISTIAAN BRESLER
…..........................................
Third
Respondent
THE REGISTRAR OF DEEDS
…..............................................
Fourth
Respondent
_____________________________________________________________
JUDGMENT
____________________________________________________________
NHLANGULELA J:
[1] The applicant seeks an order declaring a written
sale agreement to be declared
null
and
void
and that
alienation of an immovable property, the subject of the sale
agreement, be interdicted pending finalization of the action
under
case number 1723/2007 in which the parties respectively seek,
inter
alia
, transfer of each others’ undivided shares in the
immovable property aforesaid.
[2] Two issues arise for determination in this
application. The first issue is whether the written sale agreement
dated 04 March
2011, involving an immovable property held in joint
ownership by the applicants together with the first and second
respondents,
complies with a requirement in s 2(1) of the Alienation
of Land Act, Act No. 68 of 1981 (the “Act”) that a
property
sought to be sold should be described properly. The second
issue is whether the applicants have a right to interdict a sale of
the said property by the respondents to a third party without a court
order having been obtained to partition the property.
[3] There is a point in
limine
which was raised
by the respondents that the application falls to be dismissed on the
basis that it is not urgent. A further point
in
limine
raised
is that the set down of the application is irregular because a
certificate of urgency was not issued together with the application
papers. These points were not argued separately from the
merits
of the application. Therefore, I will decide them in the same manner.
[4] The subject matter of this application is an
immovable property which is described as Erf 3686, situated at No. 28
Strang Street,
Korsten, Port Elizabeth and measuring 486m². It
was registered on 11 September 1995 in the names of the first
applicant, third
applicant and first respondent. These people are
siblings. They became joint owners of the undivided property, with
each holding
a one-third share. By virtue of the fact that the third
applicant and first respondent were married in community of property
to
second applicant and second respondents, respectively, their
spouses are the owners of the property as well. The property is being
used by the applicants as a business for manufacturing general steel
works and structures, such as, burglar guards and frames.
They have
been holding the property since the date of registration. The
respondents have no interest in the business that is being
operated
on the property.
[5] So many disagreements ensued between the parties
which undermined the consensual joint-ownership of the property. In
the year
1999, their relationship became worse and culminated in a
complete breakdown, so much so, that the first and second respondents
expressed a wish to sell their one-third share to the applicants. But
the sale did not materialize, as a price at R80 000,00, could
not be
agreed upon. There is a dispute with regard to whether or not R80
000,00 did pass hands or, if it did, whether it was refunded
by the
respondents. This dispute saw the applicants issuing summons on 13
August 2007 against the respondents to recover the R80
000,00.
Further disputes arose out of the payment for the mortgage bond costs
and electricity, water and rates accounts. Such disputes
were yet
again to be the cause for litigation under the same summons. In all,
the applicants sued the respondents to recover a
sum of R313 115,56
being a claim for a refund of the purchase price, pro-rata
contribution towards mortgage bond costs, payments
to the
municipality and costs of improvements to the property.
[6] On 10 November 2010, the applicants increased their
claims by introducing claims for the termination of joint ownership
in the
property and transfer of respondents’ one third share to
the applicants against set-off of such sums as may be found by the
court to be due by the respondents to the applicants.
[7] The respondents are defending the applicants’
claims vigorously and have raised counter-claims to,
inter alia,
terminate the joint ownership of the property and transfer of the
applicants’ two-third share to the respondents against
set-off
of such sums as may be found to be due by the applicants to the
respondents arising from rentals and other income derived
from the
occupation of the property.
[8] The action proceedings were not yet finalized when,
on 04 March 2011, the first and second respondents suddenly took
steps to
dispose of their undivided one-third share in the property
in favour of the third respondent for R350 000,00. They sought to do
this by means of a written agreement of sale, which is a subject of a
declarator and interdict in these application proceedings.
A copy of
the sale agreement is attached to the founding affidavit and marked
“SV2”. It is dated 04 March 2011 and
it was signed by the
respondents on the same date.
[9] On 04 and 06 March 2011 the applicants were
approached by the first and second respondents with an offer to sell
their one-third
share in the property at R350 000,00 to the
applicants failing which, the third respondent who had already agreed
to the sale for
the same amount, would be allowed to take transfer of
the property. The applicants rejected the offer on the perceived
ground that
the offer was false to the extent that it was two times
higher than the value of the entire property being R592 000,00 which
the
court had been referred to in the summons. The second reason for
which the applicants rejected the offer was that, based on legal
opinion obtained, the sale agreement was
null
and
void
in that the entire property was the subject of sale, yet the share of
the respondents was limited to one-third share in the property.
The
debate about the sale price and a defective description of the
property occupied the parties from 04 March 2011 to 10 May 2011.
After that the applicants proceeded to prepare the application papers
and issued them for hearing on 17 June 2011. The attitudes
of both
parties may be gleaned from a letter addressed by the applicants to
the respondents on 09 May 2011, where the following
is stated:
“My clients are of the view that the sale of your sellers’
share is an attempt to frustrate the relief sought by my
clients [in
the action proceedings].”
(The brackets are mine)
To this, and a request for an undertaking that transfer
will not be proceeded with, the respondents replied on 06 April 2011
as
follows;
“7. I have difficulties understanding the basis upon which
there would be any impediments on my clients by operation of law,
from selling a one third interest.
8. The suggestion that the sale is an attempt to defeat your clients’
claim, with respect, lacks foundation.
9. Besides the fact that your clients’ claim is in dispute, I
knew of no basis upon which my clients can be impeded in the
sale of
an asset simply because there is a dispute in respect of a property.
10. Accordingly, my clients are proceeding with the sale and any
application to interdict will be resisted, not only on the
merits
,
but also on the grounds that since 8
th
March 2011, your
clients have been fully apprised of the position“
[10] I now turn to deal with the objection that the
application is not urgent. The submission by
Mr Friedman,
who
appeared on behalf of the respondents, that it took the applicants
two months to prosecute the application is correct. However,
it would
be something else to argue that such a period of time extinguished
the element of urgency in the application.
Mr Nepgen,
who
appeared on behalf of the applicants, contended that a proper
approach to an assessment of urgency should be a consideration
of the
degree thereof
(Nelson Mandela Metropolitan Municipality and
Others v Greyvenouw CC and Others
2004 (2) SA 81
(SECLD) at para.
[37]), taking into account the presence or absence of prejudice to
the respondents
(Trans-African Insurance Co. Ltd v Maluleka
1956 (2) SA 273
(A) at 278F), and in a manner appropriate to the
circumstances of the application (
Federated Trust Ltd v Botha
1978
(3) SA 645
(A) at 654C–F).
[11] In my view the circumstances of this case, as
already outlined, were such that a proper weighing-up of the threat
posed by
the sale of the property to the action proceedings would
have required some time for consideration and engagement, as the
applicants
did. To my mind, the existence of the action proceedings
determines the urgency in the application. The delay was reasonable
to
the extent that it was necessary for the applicants to prevent the
property from being transferred to a third party, otherwise the
action proceedings would be rendered academic. The debate of the
price was not unreasonable and the suspicion that the applicants’
claim was being frustrated by the sale was genuine. A need to prevent
transfer of the property defines the element of urgency of
the
matter, in my view. The respondents incurred no prejudice and the
setting down of the case was not disruptive to the court’s
roll. I have no hesitation in condoning the delay of approximately
two months in the bringing of this application. For these reasons
I
am of the view that since a certificate of urgency was present in the
court file before the hearing of the application on 17
June 2011 no
harm would be occasioned by accepting it.
[12] The rights sought to be protected and advanced by
the applicants have been set out in the founding affidavit. The
applicants,
as the joint owners of the property with the respondents,
seek relief that their two-third share together with one-third share
of the respondents be transferred to them subject to appropriate
compensation. The respondents seek similar relief. The reason is
that
their relationship as joint owners of the property is not tenable, it
has irretrievably broken down. In law, both parties
are exercising a
remedy of
actio communi dividundo.
See:
Robson v Theron
1978 (1) SA 841
(A) where the following is stated at 854H-855A:
“…The
actio communi dividundo
has a twofold
purpose, viz. to claim division of joint property and payment of
praestationes personales
relating to profits enjoyed or
expenses incurred in connection with the joint property…”
A relevant passage which appears in the case of
Ntuli
v Ntuli
1946 TPD 181
at 184 reads:
“Where there are co-owners who have agreed to divide then the
only relief that one can claim from the other is an action
for
specific performance in terms of that agreement. Secondly, if there
is a refusal on the part of one of the co-owners to divide
then the
other co-owner can go to Court and ask the Court to order the other
to partition. Again, if the parties agree that there
is to be a
partition but the parties cannot agree as to the method or mode of
partition, then, because they cannot agree as to
the method or mode
of partition, the Court is asked to settle the mode in which the
property is to be divided.”
[13] In this case, the parties could not reach an
agreement to partition the property. They could also not agree to
sell one’s
share to the other. Each side wants the whole
property for itself. On this the following was said in the case of
Robson
,
supra,
at 855D:
“Thus where it is impossible, impracticable or inequitable to
make a physical division of the joint property, the Court in
exercising its equitable discretion may award the joint property to
one of the co-owners provided that he compensates the others,
or
cause the joint property to be put up to auction and the proceeds
divided among the co-owners.”
If it is so that the applicants have a right to claim
the whole property, as they have done in the action proceedings, and
the trial
Court has a discretion to exercise in that regard. It seems
to me that the first and second respondents had no right to alienate
the property in favour of the third respondent without first
obtaining the permission of the trial Court to do so. The applicants
having already approached the Court for an order that the property be
given to them, it was no longer open to the respondents to
sell the
property to a third party, the third respondent. The respondents’
right of disposal is surely not absolute. On this
CG van der Merwe
with Anne Pope in
Wille’s Principles of South African Law,
9
th
Edition, Chapter 22 at page 560 have the following to
say:
“Needless to say, an unfettered right of disposal has the
potential to introduce conflict amongst the co-owners insofar as
the
possibility of forcing the others into a legal relationship with a
stranger is concerned; hence the right of a
co-owner to demand partition at any time.“
[14] In so far as the applicants have a right under
actio communi dividundo
to a determination of their claims on
the property, they are clearly entitled to an interdict.
[15]
Mr Nepgen
referred the Court to s 2(1) of
the Act contending that failure by the respondents to describe the
property sought to be sold with
absolute clarity, as envisaged in s
6(1)(b) of the Act, renders the sale agreement
null
and
void,
and it cannot be rectified. I accept this submission. In the sale
agreement, the one-third share which is intended to be sold, is
described in the property clause as: “Erf No. 3686 Korsten,
situated at and known as: 28 Strang Street, Korsten, Port Elizabeth.”
This description does not mean a one-third share. The submission by
Mr Friedman
that clause 18 of the sale agreement cures the
mis-description cannot be sustained. A one-third portion of Erf 3686
cannot be ascertained
from either the property clause or clause 18,
or both, because Erf 3686 has not yet been divided and portions
thereof endorsed
on a title deed.
[16] It also seems to me that the fact that the
applicants, as the joint owners, are not signatories in the sale
agreement renders
the agreement
null
and
void
for want
of compliance with s 2(1) of the Act. In the case of
Docrat v
Willemse and Others
1989 (1) SA 487
(N) at 495I–J the court
held that a sale agreement signed by one co-owner to the exclusion of
the other cannot be enforced
in the light of s 2(1) of the Act.
[17] In the circumstances, the applicants have succeeded
to prove that the sale agreement of the respondents is
null
and
void.
This finding also holds good for the right which the
applicant must prove to obtain an interdict. To hold otherwise would
cause
harm to the applicants whose claim under
actio communi
dividundo
may be defeated by the sale of the property. A suitable
remedy for the applicants at this stage is to preserve the property
in
their names and that of the first and second respondents. The
status quo
ante omnia
must be maintained until the
trial Court gives direction(s) as to what must happen to the property
in relation to the respective
claims of the parties.
[18] After hearing arguments on 17 June 2011 I
immediately granted an interdictory relief in terms of paragraphs 3
and 4 of the
Notice of Motion, with reasons being reserved until a
judgment is given on the entire application. In the light of the
reasons
in this judgment it should now be clear that there was
merit
in granting the said order to prevent unnecessary harm to the
applicants.
[19] The costs of the entire application should be paid
by the first and second respondents because they opposed the
application
without success. The third and fourth respondents are
excluded from the order of costs.
[20] In the result the following order shall issue,
incorporating the previous order which I granted on 17 June 2011:
“1. That the contract of sale, marked “SV2”,
between the first and second respondents as sellers and the third
respondent as purchaser, for the purchase of Erf Number 3686, Korsten
situated at and known as 28 Strang Street, Korsten, Port
Elizabeth,
be and is hereby declared
null
and
void.
2. That the first and second respondents be and are hereby
interdicted and restrained from alienating their jointly held
undivided
⅓ (one-third) share in the immovable property being
Erf 3686, Korsten, situated at and known as 28 Strang Street,
Korsten,
Port Elizabeth.
3. That the interdict in paragraph 2 above continue to operate
pending the finalization of the action and counterclaim under case
number 1723/2007 whereby the parties respectively seek,
inter
alia,
transfer of each other’s undivided shares in the
immovable property referred to above, pending payment of what is due.
4. That the costs of this application be paid by the first and second
respondents jointly and severally, the one paying the other
to be
absolved.”
_____________________________
Z.M.
NHLANGULELA
JUDGE
OF THE HIGH COURT
Counsel for the applicants : Adv. Nepgen
Instructed by : Joyzel Obbes Attormeys
PORT ELIZABETH
Legal representative for the respondents: Mr G. J.
Friedman
: c/o Friedman Scheckter
Attorneys
PORT ELIZABETH