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[2021] ZAGPPHC 413
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N.A.N v S.S.N (87731/2019) [2021] ZAGPPHC 413 (7 June 2021)
SAFLII
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personal/private details of parties or witnesses have been redacted
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 87731/2019
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE
:
07
June 2021
In
the matter between:
N
A
N[…]
Applicant
(ID:
[…])
and
S
S
N[…]
Respondent
JUDGMENT
BHOOLA
AJ
INTRODUCTION
[1]
The applicant in this application, seeks
an order against the Respondent, for an appointment of a liquidator
and receiver to dispose
of immovable property situated at […]
Block […], S[…], to pay all debts in respect of the
said property and
to distribute the nett proceeds accruing from the
sale of the aforesaid property equally between the parties. Should
the application
become opposed, the applicant seeks a cost order on
an attorney and client scale.
[2]
Although the matter was placed on the unopposed roll, the
appearance of the Respondent on the enrolment date necessitated a
postponement
for the filing of the Respondent’s answering
affidavit.
FACTS
COMMON
CAUSE FACTS
[3]
The following facts are common cause between the parties:
[3.1]
The parties were married in community of property on 15
th
September 2005, which marriage was dissolved by an order of the
Regional Court of Pretoria North on the 15
th
of September
2017. The divorce order was granted with the incorporation of a
settlement agreement.
[3.2]
It was a material term of divorce order and settlement agreement,
amongst other things,
that each party would be entitled to purchase a
50% share of the immovable property described as […] Block
[…], S[…],
held under deed of Title no. […],
Gauteng Province and that each party would purchase a 50% share of
other party within
180 days after the pension or provident fund has
made payment to both parties.
[3.3]
It was also agreed between the parties that should either party fail
to purchase the other
party’s 50% share, the said property
would be sold and the proceeds be divided equally between them,
subject to the full
settlement of the outstanding bond.
[3.4]
Despite the fact that the parties are co-owners of the registered
property, the Respondent
continues to reside on the property free of
charge. Consequently, the Respondent is the only person
currently benefiting
from the property
APPLICANTS
FACTS
[4]
Applicant’s evidence was that the respondent refused to claim
his
pension interest from applicant’s pension fund, thereby
delaying the sale of the property. Since the respondent refuses to
exercise the terms of the aforesaid settlement agreement, the
applicant seeks an order in terms of the
actio
communi dividundo
for the liquidator be
appointed to dispose of the property in terms of the settlement
agreement.
RESPONDENTS
FACTS
[5]
The respondent’s evidence was the reason for his non-
compliance
with the divorce settlement order was that the applicant
had not co-operated with him and furnished him with the incorrect
pension
fund name. He was subsequently furnished with the new
forms, completed the forms and submitted them for payment of the
pension
fund. He requested the court to allow him an indulgence to
pay within sixty (60
) days after
respondent’s
receipt of his pension fund benefits and not to appoint a liquidator.
ISSUES
FOR DETERMINATION
[6]
The issues for determination are:
[6.1]
Are the parties’ co-owners;
[6.2]
Is the applicant entitled to an order for division of the joint
estate;
[6.3]
Under what circumstances is a liquidator to be appointed.
LAW:
[7]
In order to succeed with the relief claimed, the applicant must
prove:
[7.1]
joint ownership
[7.1.1]
The legal position is relatively simple. When two parties, married in
community of property, divorce, their ownership of
undivided and
indivisible shares of the joint estate changes to free-co-ownership
of determinate and divisible shares. It is so
that in our legal
system joint ownership is possible and legally permissible. Each
owner has a right to share in the property of
which he or she is a
co-owner.
[1]
[7.1.2]
It is trite law that a person cannot be forced to remain a co or
joint owner. Any co-owner has a right to have
co-ownership terminated
by placing reliance on the
action
communi dividundo.
[2]
[7.2]
inability of parties to agree to the termination of joint ownership,
or to exercise the terms of an
agreement to end joint ownership, or
the inability to come to an agreement on how joint ownership will
come to an end;
[7.2.1]
The law is clear on this aspect. In the case of Gillingham v
Gillingham
[3]
"The
law governing this matter seems to me to be perfectly clear. When two
persons are married in community of property a universal
partnership
in all goods is established between them. When a court of competent
jurisdiction grants a decree of divorce that partnership
ceases. The
question then arises, who is to administer what was originally the
joint property, in respect of which both spouses
continue to have
rights? As a general rule there is no practical difficulty, because
the parties agree upon a division of the estate,
and generally the
husband remains in possession pending such division. But where they
do not agree the duty devolves upon the Court
to divide the estate,
and the Court has the power to appoint some person to effect the
division on its behalf. Under the general
powers which thee court has
to appoint curators it may nominate and empower someone (whether he
is called liquidator, receiver,
or curator-perhaps curator is the
better word) to collect, realise, and divide the estate. And that
that has been the practice
in South African court is clear."
[7.3]
the proposed method for a fair division;
[4]
[7.3.1]
The relief requested emanates from the common law cause of action, of
the actio communi dividundo.
[5]
[7.3.2]
That the court has a discretion to appoint a liquidator to divide a
joint estate,
even after a divorce order had been
granted.
[6]
APPLICATION OF LAW TO
FACTS
[8]
In so far as the application of the facts to the law are concerned
there is
no dispute between the parties regarding all three
requirements that are required to be met.
[8.1]
There is no dispute that the parties share joint
ownership in the said property;
[8.2]
There is no dispute regarding the division of the joint estate. Both
parties agree that the joint
estate must be divided;
[8.3]
There is no dispute regarding the appointment of the liquidator
between the parties.
[9]
In principle, the respondent was not opposed to the application for
the appointment
of the liquidator but merely requested an indulgence
from the court for his pension benefit to pay out so that he could
purchase
the applicant’s half share in the said property.
[10]
Counsel for the applicant provided heads of arguments and argued that
a case had been made
out for the appointment of a liquidator and
requested that the application for the appointment as the liquidator
should be granted
to finalise the matter between the parties and each
can go their separate ways.
[11]
The applicant submitted all the requirements for the order had been
complied with and should
the application for the appointment of the
liquidator not be granted, numerous problems may arise prospectively
and the applicant
will then have to approach the court again and the
matter would be delayed even further;
[12]
The respondent’s attorney, in argument submitted that the
applicant’s pension benefit
had in the meantime paid him an
amount of approximately R33 000.00. That amount was insufficient for
him to purchase the applicants
50 % share of the immovable property.
It was submitted further, that the dwelling had a sentimental value
to him and in order to
retain possession of the house, he resigned
from his employment. He is waiting for his pension interest to pay
him out so that
he could purchase the said property from the
applicant. He anticipated that payment will be made in two (2)
months. Respondent
was prepared, in the interim to make a payment of
approximately R33 000-00 that he already received from the
applicant’s
pension fund.
[13]
In reply to the
Court’s enquiry regarding the possibility of settlement having
been traversed between the parties, the Applicant’s
response
was that no settlement was forthcoming from the Respondent.
The
matter was then stood down for possible settlement negotiations
between the parties, which was unsuccessful.
RULING
[14]
As alluded to above, there appeared to be no objection to the
application for the appointment of the liquidator
to be granted
between the parties. What is patently obvious is the delay in
finalising the estate.
[15]
It is lamentable that
had the settlement agreement specified the time frame under which the
transactions had to be completed, the
need for this application would
not have arisen.
[16]
The applicant was justified in approaching the court to expedite and
finalise the matter and discharged
the onus that is required and was
justified to approach the court to expedite the appointment of a
liquidator. The applicant, personally
approached the respondent to
try and resolve the matter without coming to court, however,
respondent did not cooperate and applicant
was forced to approach the
courts for the relief as claimed.
[17]
This then leads me to the issue of the costs. The applicant,
requested costs on an attorney and
client scale due to the fact that
the respondent was responsible for the delays in finalising the
estate. The respondent
however, requested that each party pays
their own costs.
[18]
The general rule is that costs must follow the outcome. However, the
Court
has a discretion to make any appropriate costs order,
considering all the relevant circumstances of the case and looking at
such
facts in totality.
[19]
From the perusal of the settlement agreement there was no time span
indicated
as to when the parties should have applied for the pension
funds merely that payment was to be made within 180 days of receipt
of payment.
[20]
I do not believe that the respondent should be mulct with costs on an
attorney and
client scale for wanting to oppose the application and
put his version before the court.
[21]
For the sake of protecting both party’s interests and to save
costs of
the joint estate that still exists between the parties, I am
of the view the applicant is entitled to her order. However, the
indulgence
sought by the respondent is not unrealistic and in the
result I make the following order.
ORDER
[22.1]
That Alan Herbert Jordaan and or such other person be appointed as a
liquidator and receiver
to dispose of immovable property situated at
152 Block BB, Soshanguve, held under Deed of Title no. T38079/1998,
to pay all debts
in respect of the said property and to distribute
the nett proceeds accruing from the sale of the aforesaid property
equally between
the parties.
[22.2]
That such appointment is suspended until 24
th
July 2021 to enable the respondent to obtain his pension benefits and
to make payment to the applicant on or before the 24th July
2021,
failing which the order granted in paragraph [22.1] will come into
effect from 25
th
July 2021.
[22.3]
The respondent is ordered to pay the applicant’s agreed or
taxed cost on the party and party on the
scale.
C.
B. Bhoola
Acting
Judge of the
High
Court of South Africa
Gauteng
Division, Pretoria
Delivered:
This judgment was prepared and authored by the Judges whose names is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 07 June 2021.
APPEARANCES
Counsel
for the Applicant
: Advocate AC Diamond
Instructed
by
: JW Wessels & Partners
Counsel
for the Respondent
: Mr P Sebola
Instructed
by
: Peter Sebola Attorneys
Date
of Hearing
: 24 May 2021
Date
of Judgment
: 07 June 2021
[1]
Ex
parte Menzies et Uxor 1993 (3) SA 779(C)
[2]
Trojan
Exploration Co. (Pty) Ltd v Rustenburg Platinum Mines Ltd
Ibid
[3]
1904,
TS 609,613
[4]
Robertson
v Theron
(1978) 2 All SA 264
(A), Trojan Exploration Co (Pty) Ltd v
Rustenburg Platinum Mines Ltd) 1996 (4) SA 499(SCA)
[5]
Amler’s
Precedent of pleadings, Harms, Eight Edition, 223-225
[6]
Nkosi
TA Receiver and Liquidator in Matrimonial Affairs: A legal
entitlement or a drastic measure? November 2011 De Rebus
22,
Maharaj v Maharaj
2002 (2) SA 648
(D)