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2023
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[2023] ZAFSHC 17
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Marogoa v Marogoa and Others (101/2022) [2023] ZAFSHC 17 (24 January 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
101/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
OLEHILE
CALVIN
MAROGOA
Applicant
And
KAMOGELO
SALAMINA
MAROGOA
First Respondent
JUNIOR
RASEROLE MAROGOA
Second Respondent
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN
Third Respondent
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
15 SEPTEMBER 2022
DELIVERED
ON:
24 JANUARY 2023
[1]
The applicant and the first and second respondents (hereafter “the
respondents”)
are the joint owners of two immovable properties
situated in Bloemfontein. The third respondent is the Registrar of
Deeds, Bloemfontein.
This is an application for the termination of
the said joint ownership.
[2]
The applicant moves for an order that the respondents be compelled to
sign a document
titled “EXCHANGE AGREEMENT” in terms
whereof the joint owners would exchange their interests in the
properties (“the
exchange document”), alternatively that
the court orders that the immovable properties be sold by means of
public auction
and the nett proceeds be divided between the parties
in accordance with their one third shares in the properties.
[3]
The respondents opposed the relief claimed and filed a
counter-application, praying
in essence that a liquation and
distribution account in terms whereof the three of them became joint
owners, be set aside. The
relevance hereof lies therein that the two
immovable properties belonged to the biological mother of the
respondents. Their mother
passed intestate on 15 July 2015 and was
married to the applicant at the time. The three of them jointly
inherited the properties
and registration was effected in their names
on respectively 28 November 2019 and 27 January 2022.
[4]
It is trite that where property is owned in joint ownership, each
such co-owner has
an undivided share therein. The share need not be
equal. As a general rule, every co-owner would be entitled to have
such co-ownership
terminated with the
actio
communi dividundo
.
[1]
[5]
A party merely has to allege and proof the existence of the joint
ownership and a
refusal by the other to agree to the termination or
/and inability to agree in respect of the method of termination (or
an agreement
to terminate but refusal to comply therewith). A
respondent (defendant) does not have a plethora of defences once any
of the above
requisites has been proven. The general rule is that a
court has a wide discretion and would follow a method that is fair
and equitable
to both parties. This would include for example a sale
by public auction and division of the nett amount, in appropriate
cases
an allocation of the property to one owner subject to payment
of compensation and even a private auction restricted to co-owners
and division of the nett amount.
[2]
[6]
In this matter it is common cause that the parties are co-owners of
the properties.
The relationship between the applicant and
respondents are however strained as is evident from the papers. The
applicant wishes
to have the joint ownership terminated.
Notwithstanding the exchange document suggested and prepared by the
attorneys for the applicant
as far back as 2020, the respondents had
been (and still are) dissatisfied therewith, however have failed to
make any counter-proposal.
The parties do not agree in respect of the
manner in which the co-ownership should be terminated.
[7]
At the commencement of the proceedings respondents formally withdrew
the counter-application.
The result thereof is that the
causa
of how the parties became co-owners is not at issue any further and
as the papers stood before me there is no prospect that the
registration of the properties into the names of the parties be
unsettled or affected. As the counter-application has been withdrawn,
nothing further needs to be said about it by me safe to mention that
prima facie
I was not of the view that it would ever be
clothed with success.
[8]
The result is therefore that no valid defence is proffered in respect
of the relief
sought by applicant in its notice of motion. The
respondents’ opposition on the papers to both the propositions
in the exchange
document as well as the alternative relief claimed by
the applicant (that the properties be sold by public auction), is
premised
on their then view that the applicant should not have been
an heir to the properties at all.
[9]
The applicant in its founding affidavit explains that it was proposed
to the respondents
that a fair and equitable division would be an
exchange of the properties with the result that applicant be the sole
owner of one
of the two properties, and the respondents the joint
owners of the other property. The applicant sets out extensively how
the calculations
were done to achieve the proposed division of the
joint ownership as suggested in the exchange document. To this extent
the applicant
obtained two valuation reports (sworn affidavits) from
registered valuers to determine the value of the properties. The
written
exchange document was drafted in 2020 and a copy thereof was
provided to the respondents for their consideration. The applicant
annexes several electronic communications wherein the respondents
were requested to tender alternative options for termination
of the
joint ownership, but avers that no response for a suggested solution
was forthcoming. The communication included an indication
to the
respondents that the applicant would be moving for the orders as
indicated in its notice of motion, including a punitive
cost order.
[10]
The first respondent, as deponent to the answering affidavit, states
amongst others that due
to the strained relationship as
aforementioned, she is uncomfortable with the fact that the applicant
has appointed at his discretion
valuers to determine the reasonable
market values of the properties. She has doubts about the figures
provided and harbours a suspicion
that the same might not be
accurate, however she would “take comfort and have confidence
in the valuations of the property
(sic)
in a situation where a
second valuations of the properties is undertaken by evaluators
independent of the Applicant.”
[11]
I am to consider a method to terminate the joint ownership in a
manner which is fair and equitable
to all parties. On face value the
exchange document entails a method that seems to be not only fair,
but would avoid the situation
of a public auction resulting in an
outcome which might in all probabilities be less beneficial to the
parties. It is common cause
that both properties were from the
commencement of the joint ownership (and still are) leased to
tenants. The parties not only
have the benefit of the income so
generated, but in the manner suggested by the applicant, still retain
ownership of a property.
However, taking into account the objections
raised by the respondents, it is my considered view that the
alternative relief claimed
by the applicant that the properties be
sold by public auction, would in the circumstances be fair and
equitable to the parties.
Having so concluded, the respondents’
insistence that valuers be appointed would in my view serve no
purpose.
[12]
The respondents tendered the costs in relation to the withdrawal of
the counter-application.
The applicant in its notice of motion and
during oral submissions moved for a cost order on a scale as between
attorney and client.
It was submitted that the respondents’
non-responsive attitude, despite constant requests for proposals as
to a fair and
equitable termination of the joint ownership of the
immovable properties, warrants such a punitive order. Although I
frown upon
the said conduct of the respondents In exercising my
discretion, I intend granting the usual cost order.
[13]
Accordingly the following order will issue:
1.
The joint ownership of Applicant and the
First and Second Respondents held in respect of the immovable
properties (“the properties”)
described as:
1.1
Section 33 of Plan [....] situated at Portion [....], Erf
[....], Bloemfontein, Mangaung Metropolitan
Municipality, Free
State, held in terms of Deed of Transfer [....]
("MAR-HEI");
1.2
Section 1 of Plan [....] situated at Portion [....] Erf
[....], Bloemfontein, Mangaung Metropolitan
Municipality, Free
State, held in terms of Deed of Transfer [....]
("ANRIUS")
is terminated.
2.
The properties shall be sold by public
auction without a reserve price within a period of
sixty
(60) days
calculated from date of the
granting of this order and Applicant is authorized to take all
reasonable measures to give effect to
this order.
3.
The conditions of sale per public auction
shall include that:
3.1 The
Applicant as well as the First and Second Respondents shall be at
liberty to bid for the properties and
to purchase it at the sale.
3.2
The expenses of advertising the properties
and of the sale shall be paid from the proceeds of the sale.
3.3 The
nett proceeds of the sale shall be divided equally between the
Applicant and the First and Second Respondents,
who are all ordered
to give transfer to the purchaser pursuant to the said sale.
4.
The
costs of this application to be paid by the First and Second
Respondents jointly and severally, the one paying, the other to
be
absolved.
C
REINDERS, J
On
behalf of applicant:
Adv HJ Cilliers
Instructed
by:
MV Mdhluli
c/o Hendre Conradie Inc
(Rossouws Attorneys)
BLOEMFONTEIN
On
behalf of respondents:
Adv Z Nyezi
Instructed
by:
Mazibuko & Wezi
BLOEMFONTEIN
[1]
Robson v Theron 1978 (1) SA 841 (A)
[2]
Robson v Theron
supra
Kruger v Terblanche
1979
(4) SA 38
(T)