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[2020] ZALMPPHC 72
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Koko v Koko (5403/2016) [2020] ZALMPPHC 72 (25 August 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 5403/2016
In
the matter between:
KGABO
JEANETTE KOKO
APPLICANT
And
JEFFENEY
GRACE KOKO [BORN: LEGORA]
RESPONDENT
JUDGMENT
MANGENA
AJ
[1]
The facts of this case confirm the correctness of the observation
attributed to Pablo Picasso: “Only
put off until tomorrow what
you are willing to die having left undone”.
[2]
The applicant, Kgabo Jeannete Koko was married in community of
property to the late Noko Johannes Koko
who passed away on the 19 May
2013.
[3]
Subsequent to the passing on of Mr Koko, the applicant was appointed
an executrix of the estate by the
m
aster
of the
h
igh
court with powers to liquidate and distribute the estate of the late
Noko Johannes Koko.
[4]
One of the assets which formed part of the estate of the deceased and
is the subject of th
is
proceedings is […] which at the time of the death of Mr Koko
was also registered in the names of Jeffeney Grace Koko, the
respondent.
[5]
The applicant has approached this court for an order declaring that
the respondent who despite being
the registered owner, does not have
any right, title and interest in […] situated at number […],
Polokwane.
[6]
The basis for the application can best be understood against the
following brief background facts:
T
he
late Noko Johannes Koko married Jeffeney Grace Koko, the
r
espondent
in community of property on 13 February 1979. During the subsistence
of the marriage, the parties acquired an immovable
property situated
at […], Polokwane and same was registered in both their names.
The property was financed through a mortgage
loan obtained from NBS.
[7]
The marriage between the late Noko Johannes Koko and the
r
espondent
was dissolved by an order of the North Eastern Divorce Court on the
24 January 2001 with an ancillary order that the joint
estate shall
be divided.
[8]
Upon dissolution of the marriage, the
r
espondent
left the matrimonial home and took with her some movable assets. The
deceased remained in occupation and was responsible
for payment of
the home loan account as well as municipal levies and taxes. The
property however remained registered in both the
names of the
deceased and the
r
espondent.
From
the reading of the papers filed, it appears that the parties were
unable to agree on adjustments to be made on the share
payable
to the respondent as well the date for the determination of the value
of the immovable property. I will deal with these
two issues later in
this judgment.
[9]
The deceased later married the
a
pplicant,
Kgabo Jeannette Koko in community of property and they continued to
stay in the same property notwithstanding that it
is still registered
in the names of Mr Koko and the
r
espondent.
During
this
period, they effected some improvements on the property and were
responsible for its general maintenance and upkeep.
[10]
The applicant argues that the
r
espondent
did not make any financial contribution towards the payment of the
home loan and the general improvements on the property
and should
therefore no
t
be entitled to benefit from the appreciation of the property. At
best, the value of her share should be limited to the date of
divorce, being 24 January 2001.
[11]
The
r
espondent
opposed the application and contended forcefully that the actual date
of valuation relevant to the division of the estate
is the present
market value as she is a co-registered owner with rights, title and
interest in the property.
[12]
The
r
espondent
further dispute the assertion by the
a
pplicant
that the immovable property formed part of her joint estate with the
deceased. She argued, correctly so, in my view, that
given the fact
that the joint estate between herself and the deceased had not yet
been divided, only an undivided half share belonging
to the deceased
formed part of their joint estate.
[13]
When the matter was called for hearing on the opposed roll of the 13
September 2018, neither the
a
pplicant
nor her legal representative were in attendance. Mr Oberholzer,
counsel for the
r
espondent,
applied for the dismissal of the application with costs as well as
for an order for the appointment of a liquidator to
divide the joint
estate between the deceased and the
r
espondent
as per the court order of the North Eastern Divorce Court granted on
24 January 2001 under case number 4909/1999. I duly
granted the
orders as prayed for by Mr Oberholzer.
[14]
Subsequent to the granting of the orders on 13 September 2018,
a
pplicant
requested for reasons for the orders on 08 November 2018 and again on
06 December 2018 when it was brought to my attention
and I duly
responded to the request on 07 December 2018.
[15]
The
a
pplicant
filed an application for leave to appeal on 22 June 2020 which is
more than
21
months
after the order was granted.
[16]
The application for leave to appeal is opposed by the
r
espondent
on the basis that it is inordinately out of time and that the
liquidator appointed as per the court order of the 13
th
September 2018 has already finalised the process and filed the report
with the court.
[17]
The report by the liquidator has not been challenged nor is there an
application to set it aside. In the premises, the
application for
leave to appeal will not serve any purpose as it does not bear the
prospects of success. I agree with these submissions.
[18]
Applications for leave to appeal are regulated by Rule 49 (1)(b)
which provides as follows:
“
(b)
When leave to appeal is required and it has not been requested at the
time of the judgement or order, application for such leave
shall be
made and the grounds therefore shall be furnished within
15
days
after the date of the order appealed against. Provided that when the
reasons or the full reasons for the court’s order are
given on
a l
a
ter
date than the date of the order
,
such application may be made within 15 days after such later date
:
P
rovided
further that the court may on good cause shown,
extend
the aforementioned periods of 15 days”
[19]
The order which the applicant seeks leave of this court to appeal was
granted on 13 September 2018 and the reasons were
requested on the 08
November 2018. The application for leave to appeal is indisputably
out of time and the applicant has not applied
for condonation.
[20]
The failure by the
a
pplicant
to seek for condonation and explain the reasons for the delay in
bringing the application for further leave to appeal is
fatal in that
there is no proper application for leave to appeal before court.
[21]
It follows axiomatically that the application should be stuck off the
roll with costs.
[22]
If I am wrong, the application should fail because the appeal does
not have a reasonable prospect of success.
[23]
The high watermark case for the
a
pplicant
is that the
r
espondent
is not entitled to 50% of the value of the immovable property as at
date of division of the estate but on the date of
the granting of the
divorce order. The applicant bases this contention on the
improvements
made
and
the fact that they were solely responsible for the repayment of the
home loan account and municipal rates and taxes.
[24]
The
a
pplicant’s
case is without merit as it fails to appreciate the legal
consequences of the marriage in community of property
as well as the
nature of the legal rights the respondent has on the property arising
out of the marriage concluded between her
and the deceased. The two
were in bound or restricted co-ownership of the immovable property.
For as long as the joint estate has
not been divided, the
r
espondent
retained all her rights of ownership in respect of her undivided
share of the property.
[25]
In
Tjamuaha
and Another
v
Master
of the High court and others
,
[1]
the Supreme Court of Namibia expressed the legal position
regarding co-ownership as follows:
“
(14)
As a result of the marriage in
c
ommunity
of
p
roperty
the deceased and the respondent were co-owners or joint owners of the
assets in the estate. Co-ownership is simply the facts
of two or more
persons owning a thing in undivided shares which shares need not be
equal. This factual situation comes about through
agreement (free
co-ownership) or through other relationships such as a marriage or
partnership (bound or restricted co-ownership).
Because the share of
the co-owner i
s
indivisible no co-owner has a right to specific physical part or
portion of the thing that is the subject matter of the co-ownership
relationship. Whereas a joint owner in a free-ownership can dispose
of his undivided share without consent of his co-owners the
joint
owners in a restricted co-ownership relationship cannot do this. When
it comes to the restricted co-ownership this is simply
one of the
consequences of the relationship between the parties, whereas in
cases of free ownership it is the only relationship
between
co-owners. It thus follows that the undivided share in restricted
co-ownership relationships does not play as great a role
during such
relationships as the true value of such undivided share is only
realized upon termination of the co-owner relationship.
In general a
co-owner in a free co-owner relationship can insist on a partitioning
or division of the joint property at any time.
This, a co-owner by
virtue of a marriage in community of property cannot do. This will by
law only happen when there is a divorce
or upon the death of a
spouse. B
arr
ing
an agreement between the co-owners, each co-owner is liable for his
share of the expenses and losses involved in the running
and upkeep
of the joint property.
“
(15)
It follows from what is stated above that upon partitioning or
division, each co-owner is entitled to his/her share of the
property
after the settling of the expenses or debts in connection with the
property. Where the co-owners cannot agree on the division
a court
can order the sale of the property and the division of the money or
order one co-owner to buy out the other or generally
make such order
as it deems fit to effect the division or partitioning.
[27]
What emerges from the Namibian judgment accords very well with our
own law and is a clear confirmation of an established
and
settled law that division of the joint estate may be brought about by
agreement between the parties, or in the event that no
agreement is
reached by them, the appointment of a curator or a liquidator or a
receiver to divide the joint estate. Absent an
agreement, division of
the joint estate cannot be accomplished by one of the parties.
See
Maha
raj
v
Mahara
j
[2]
and
S
V Nedbank Limited,
[3]
.
[26]
In
Gillingham
& Gillingham
,
[4]
Innes
CJ
expressed the legal position as follows:
“
The
law governing this matter seems to me to be perfectly clear. When two
persons are married in
c
ommunity
of
p
roperty
a universal partnership in all goods is established between them.
When a court of a 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 the
r
e
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.
[28]
On the facts of this case, the respective parties are in agreement
that the joint estate between the late Noko Johannes
Koko and the
r
espondent
had not been divided. The delay in effecting the division of the
joint estate is due to the failure of the parties to
reach an
agreement on the liabilities of the joint estate.
[29]
On the authority of Gillingham above, the court is entitled to
intervene and order an appointment of a liquidator to
effect the
division of the joint estate. The
a
pplicant
does not have the right to determine the value of the property due
and payable to the
r
espondent.
In
Revill
& Revill
[5]
the court held that “no
man can be a judge in his own cause. In other words, neither party
can take upon himself or herself
the right to divide the joint
estate. In fact, no party in any form of community is entitled to
divide the common property and
the other party be forced to accept
that position”.
[30]
What the
a
pplicant
fails to appreciate is that an order for the division of the joint
estate does not divest the
r
espondent
of her rights and interests in the property. She remains a co-owner
until division takes place either by agreement or
the order of court
through the appointment of a liquidator with powers to collect,
realise or divide the estate.
[31]
It is the duty of the receiver and liquidator to receive the assets
and liabilities of the joint estate, liquidate same
and distribute
the free residue to the parties. What the receiver and liquidator do
is to attend to the modus of g
iving
effect to the court order of division of the joint estate. The date
of determin
ing
the value of the undivided share in the joint estate is the date on
which division takes place. That is the date the court order
is given
effect to.
[32]
Where a co-owner pays all the expenses necessary for the upkeep of
the property as in this case, such a co-owner may
recover from the
other co-owner his/her proportionate share of such expenses.
Therefore in as
much
as the co-owners share the expenses they are entitled to share in the
benefits that accrue to the property as well.
[33]
I accordingly find the contention by the
a
pplicant
that the
r
espondent
is only entitled to the share of the value of the property as the
date of divorce contrary to established legal principles
and not
supported by any authority. Indeed counsel for the
a
pplicant
was invited to supply any authority relied upon for his contention
and none was provided.
[34]
This does not however mean that the
a
pplicant
is not entitled to be compensated for the expenses incurred on the
improvements made on the property as well as the payment
made in
respect of municipal rates and taxes. These expenses need to be
furnished to the appointed liquidator who will consider
them and make
a determination for their allowance or deduction in the preparation
of the final account for submission to court.
[35]
The liquidator has already filed his report and granting leave to
appeal in these circumstances will be putting a strain
on the limited
judicial resources and will not be in the best interests of justice.
[36]
Consequently, the application should also fail on this reason as it
does not bear prospects of success.
Order:
The
application for Leave to appeal is dismissed with costs.
MANGENA AJ
ACTING JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
1.
For
the Applicant
: Mr Sekukuni
Instructed
by
: Sekukuni Attorneys
2.
For
the Respondent
: Mr Oberholzer
Instructed
by
: De Bruin Oberholzer
3.
Date
of hearing
: 09 July 2020
4.
Date
delivered
: 25 August 2020
[1]
Case number SA 62/2015 delivered on 26 October 2016,
Supreme Court of Namibia
[2]
2002 (2) SA 648 (D)
[3]
5058/2019 [2020] ZALMPPHC 46
(11 June 2020]
[4]
1904 TS 609
at 613
[5]
1969
(1) SA 325
(C)