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[2023] ZAECMKHC 73
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W.J.S v T.J.A and Another (1817/2022) [2023] ZAECMKHC 73 (30 May 2023)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: 1817/2022
In the matter between:
W[…]
J[…] S[…]
Applicant
And
T[…]
J[…] A[…]
First
Respondent
M[…]
A[…]
Second
Respondent
JUDGMENT
BESHE J:
[1]
The applicant in this matter seeks a declarator that she is a
part-owner with first respondent of Erf
2[…], Cradock, a
property held by Deed of Transfer No. T6[…] situated at 2[…]
G[…] Street, Cradock,
Eastern Cape. As an ancillary order,
applicant seeks an order for the appointment of Receiver and
Liquidator for purposes of realising
the property in question.
[2]
Applicant and first respondent were married to each other in
community of property during the year
1983. The marriage was
dissolved by an order of this court in March 1995. According to the
applicant, when finalising the divorce,
they did not expressly deal
with the immovable properties that constituted their joint estate.
However, all the movable property
was divided between them in terms
of a Settlement Agreement entered into with the first respondent.
Their immovable property consisted
of their marital home situated at
1[…] Sprigs Street, Cradock. It is common cause that this
property has since been sold.
The property that is the subject matter
of this application also formed part of the parties’ joint
estate. First respondent
operated a metal reclamation business from
the said property. It is still registered in the names of the
applicant and that of
the first respondent. According to the
applicant, there is no meaningful communication between her and the
first respondent, as
a result of which they neglected to divide or
deal with their immovable properties. She also points out that in
terms of the Decree
of Divorce the first respondent remained liable
to settle the outstanding bond in respect of the said property which
he did in
due course.
[3]
It is also common cause that first respondent subsequently married
the second respondent, which marriage
was dissolved in October 2016.
Thereafter, the property situated at 1[…] Sprigs Steet was
sold and proceeds thereof divided
between the applicant and second
respondent. No relief is sought from the second respondent in respect
of this property. The registration
of transfer of the Sprigs Street
property took place in February 2022.
[4]
It was upon receipt of a Deed of Sale in respect of the Sprigs Street
property that her memory about
the existence of the two properties
was revived, spurring her into action in respect of this application.
Hence the orders that
she seeks.
[5]
The application is only opposed by the first respondent. Henceforth
he will be referred to as the respondent.
He denies that at the time
of their divorce the parties did not discuss matters relating to
their immovable properties. He contends
that the parties agreed that
the applicant who wished to leave the premises (presumably the
property in question) would do so without
any encumbrances. Further
that it was agreed between the parties that he would shoulder the
responsibility of paying all the debts
of marriage including,
inter
alia
, the balance still owing on applicant’s motor vehicle;
any bonds over their properties. This, he asserts, was to enable the
applicant to relocate debt free. He also paid the costs of the
divorce action. Importantly, at paragraph 6 (vii) of his answering
affidavit, he states that “
I respectfully submit that should
we have agreed that any immovable property be transferred and
registered in her name, this would
most emphatically have been
included in any Order of Divorce”
.
[6]
Respondent, though admitting that the property in question is still
registered in the joint names of
the parties, he denies that the
applicant is entitled to an undivided 50% share of the property. He
further asserts that it is
unthinkable that the applicant forgot
about the properties for a period in excess of 20 years as she
alleges.
[7]
It is noteworthy that respondent does not offer much explanation
about what the agreement was regarding
the Sprigs Street property and
why only in 2022 registration of transfer thereof took place. In
excess of 20 years after their
divorce. It is common cause that part
of proceeds from the sale of this property were paid to the
applicant. He offers no explanation
why if they had agreed as he
suggests, part of the proceeds of the sale of this property was paid
to the applicant.
[8]
Applicant attributes the failure to transfer applicant’s share
of the property / properties into
his name to his attorney who has
since died. No details are provided as to when the attorney died.
[9]
Noteworthy also is the fact that no order was made in terms of the
Settlement Agreement between the
parties regarding their immovable
properties. Applicant denies there was ever an agreement regarding
their immovable properties.
[10]
Applicant also makes the point that in terms of
Section 2
of
the
Alienation of Land Act
, no alienation of land will be of
force and effect unless it is contained in a Deed of Alienation
signed by the parties thereto.
[11]
The parties are at variance as to whether or not there was an
agreement about the fate of their immovable
properties. So, clearly
there is a dispute of fact in this regard.
[12]
It is trite that where in motion proceedings disputes of fact appear
from the affidavits, a final order may
be granted if the facts
averred by the applicant and have been admitted by the respondent,
together with the facts alleged by the
respondent justify the
granting of such an order.
[1]
Trite also is that there may be instances where the denial by the
respondent of a fact alleged by the applicant may not be such
that it
amounts to real
bona
fide
or
genuine dispute of fact.
[2]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[3]
a
real, genuine and
bona
fide
dispute
of fact was held to exist “
only
where the court is satisfied that the party who purports to raise the
dispute has in his affidavit seriously and unambiguously
addressed
the fact said to be disputed
”
.
Likewise, in
National
Director of Public Prosecutions v Zuma
[4]
the
court once again had to comment on
Plascon-Evans
rule.
In the process, the court had this to say:
“
It
may be different if the respondent’s version consists of bald
of uncreditworthy denials, raises fictitious disputes of
fact, is
palpably implausible, farfetched or so clearly untenable that the
court is justified in rejecting them merely on the papers.”
[13]
The version proffered by the respondent seems to me, to fall squarely
into a dispute of fact that is not
real or genuine or
bona fides
,
one that is fictitious and palpably implausible. It also lacks detail
as to when and under what circumstances the purported agreement
was
reached regarding the immovable property. Why did it not form part of
the Deed of Settlement that was incorporated into the
Decree of
Divorce? Why for over 20 years no attempt was made to transfer
applicant’s share of the property to him? Why despite
the said
agreement, when the Sprigs Street property was sold in respect of
which registration of transfer took place during 2022,
applicant
received a share of the proceeds of its sale?
[14]
Respondent seems to suggest that the reason applicant agreed that the
properties would devolve upon him
alone was that he was going to take
the responsibility for paying all amounts due in respect thereof. But
the question stands,
why pay to the applicant a share of the proceeds
in respect of the Sprigs Street property?
[15]
It is also by operation of law that if parties are married in
community of property as the parties in this
matter were, they share
a joint estate. Their immovable properties belong to the joint
estate, regardless of each parties’
contribution towards the
asset.
[16]
Even though first respondent does not contend that this purported
agreement formed part of their Deed of
Settlement, there was a
suggestion in argument that paragraph 6 (c) of the Deed of Settlement
gave effect thereto. In particular
Clause 6 (c)
thereof. It
will be apposite to reproduce the whole of
Clause 6
:
“
6.
Ter vordiring van die gemeenskaplike boedel, kom die partye Hiermee
as volg ooreen:
(a)
Verweerder sal aanspreeklik wees vir
betaling van alle skulde van die gesamentlike boedel soos en met
datum van ondertekening hiervan
en veral die lening verskuldig aan
Boland Bank in naam van die Eiseres behalwe die petrolrekening;
(b)
(i) Verwoerder sal aan Eisores die partye se
Phillips hoortroustal, die swart en wit TV stele n die yskas wat tans
by Verweerder
se skroothandelbesigheid gehou word, asook die klavier
wal Eiseres geërf het, lewer.
(ii) Die Werweerder
onderneem om te betaal vir die Vervoer van bogemelde artikels op
voorwaarde dat Eiseres self reëlings vir
die Vervoer daarvan met
Spoornet.
(c)
Behalwe soos uiteengesit in paragraaf 6 (b)
hierbo, sal elke party daardie gedeelte van die gemeenskaplike boedel
tans in sy of
haar besit, behou as sy of haar ultsluitlike eiendom.”
It was suggested in
argument that
Clause 6 (c)
dealt with the immovable property.
[17] If
each party was to retain property in their possession including the
immovable properties, it means the
parties agreed that first
respondent would retain both immovable properties. This is so because
according to the applicant at the
time of the divorce she
“relocated”. She moved from Cradock and respondent
occupied both properties. Ran his business
from one and resided in
the other. The question however still remains: If the parties
included items such as a black and white
TV set in their Deed of
Settlement, why would they not include and fully describe the
immovable properties and their agreement
in relation thereto?
[18]
For all the reasons stated hereinabove, I am satisfied that the
applicant has made out a case for the relief
she seeks. And that
respondent’s denial that they did not deal with the immovable
properties at the time of the divorce falls
to be rejected.
[19] I
have slightly tweaked the order sought by the applicant especially as
regards the powers and rights of
the liquidator. Some of which were
considered to be unnecessary for purposes of this case. I am also of
the view that the Receiver’s
remuneration should be paid from
the proceeds of the realisation of the property and not from first
respondent’s share of
the joint estate. No case has been made
for an order that it should be paid from respondent’s share of
the joint estate.
[20]
Accordingly, the following order will issue:
It is hereby declared
that –
1.
The immovable property described as:
1.1
Erf 2[…] Cradock, held by Deed of
Transfer T6[…] situated at 2[…] G[…] Street,
Cradock, Eastern Cape
Province is owned in equal shares by the
Applicant and the First Respondent and constitutes the only asset
remaining in their joint
estate.
2.
That Tertuis van der Walt, an accountant of
Gerber, Botha and Gowar Inc, Cradock is hereby appointed as the
Receiver and Liquidator
in the Joint Estate of the Applicant and the
First Respondent to realise the joint estate’s asserts for the
purpose of dividing
the Joint Estate described in paragraph 1 hereof.
3.
That the said Tertuis van der Walt, in his
capacity as Receiver and Liquidator be employed to act as follows:
3.1
To take possession of the asset belonging to
the Applicant and the First Respondent and settle any claims which
creditors may have
against the joint estate in respect thereof;
3.2
To prepare a final account between Applicant
and First Respondent, and to divide the joint estate after payment of
its liabilities
in accordance with the account.
4.
The liquidator shall have the following powers:
4.1
The right to make all investigations necessary
and in particular to obtain from the parties all information with
regard to the assert
comprising the joint estate;
4.2
The right to obtain information regarding their
financial affairs from bank managers, building societies, managers or
any other
financial institutions where moneys may have been invested;
4.3
The right to make physical inspection of the
assert and take inventories;
4.4
The right to question the parties and obtain
all explanations deemed necessary by them for the purpose of making
the division;
4.5
The right to realise the assert on such items
as the liquidator may deem fit, including by public auction, private
treaty or otherwise;
4.6
To sign and execute any documentation necessary
to effect transfer or realisation of the assert of the joint estate;
4.7
The right to obtain appraisals and valuations
for the purposes of determining the value of the Joint Estate.
5.
the liquidator shall not be required to lodge
security for his administration of the Joint Estate.
6.
The liquidator shall be relieved of his duties
as follows:
6.1
Upon completion of his account, the liquidator
will forward a copy of such account to the parties’ respective
attorneys.
6.2
The liquidator will also send his account be
prepaid registered mail or hand delivery to the addresses of the
Applicant and First
Respondent as reflected above.
6.3
Both Applicant and First Respondent shall be
entitled to raise objections to the said account within 14 days from
date that such
account had been sent. Should the liquidator not
receive any objection from either Applicant or First Respondent
within the 14
day period, the said account shall be deemed to have
been confirmed by Applicant and First Respondent and the liquidator
shall
proceed to finalise the estate in accordance with the said
account.
7.
The remuneration to which the Receiver is
entitled is to be paid out of the proceeds of realisation of the
property.
8.
First respondent is to pay the costs of this
application.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant:
Adv:
D. H. Olivier
Instructed
by:
McCALLUM
ATTORNEYS
Office
No. 10, Fidelity Building
87
High Street
MAKHANDA
Ref:
Mr M McCallum
Tel.:
046 – 622 2372
For
the Respondent:
Adv:
J. A. Knott
Instructed
by:
NETTELTONS
ATTORNEYS
118A
High Street
MAKHANDA
Ref:
Mr Hart/Liza/S471
Tel.:
046 – 622 7149
Date
Heard:
02/16/23
Date
Reserved:
02/16/23
Date
Delivered:
05/30/23
[1]
See Plascon-Evans
Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 H-J.
[2]
Plascon-Evans
supra
at 634 I.
[3]
[2008] ZASCA 6
;
2008 (3) SA 371
SCA at 375 [13].
[4]
[2009] ZASCA 1
;
2009
(2) SA 277
SCA at 290.