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[2018] ZAFSHC 166
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EL v IL and Another (3216/2018) [2018] ZAFSHC 166 (25 October 2018)
SAFLII
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Certain
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3216/2018
In
the matter between:
E
L
Applicant
and
I
L
1
st
Respondent
IAN
ELLIS
INCORPORATED
2
nd
Respondent
HEARD
ON:
18 OCTOBER 2018
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
25 OCTOBER 2018
I
INTRODUCTION
[1]
Applicant seeks temporary relief pending institution of action in
terms of the
actio
communi dividundo.
She
and her former husband, the first respondent in this application,
were married out of community of property with inclusion of
the
accrual system, but notwithstanding their intention at conclusion of
the marriage to keep and maintain separate estates, they
inter
alia
purchased
a holiday home situated at Dana Bay, Mossel Bay in co-ownership.
[2] A decree of divorce
was issued on 3 September 2015 and further orders were made by
agreement to facilitate adjudication of first
respondent’s
claim that he is entitled to share in the accrual of applicant’s
estate in terms of the ante-nuptial contract,
read with
s 3
of the
Matrimonial Property Act, 88 of 1984
. A period of three
years has lapsed and that dispute has still to be set down for
hearing.
II
THE
PARTIES
[3]
Applicant is E L, a business woman of Ladybrand. Adv PJJ
Zietsman appeared for her before me.
[4]
First respondent is I L, a businessman residing in Ladybrand with
business interests in this country as well as Lesotho.
Adv MC
Louw appeared for him before me.
[5] Second respondent is
Ian Ellis Inc, a firm of attorneys who has been authorised to effect
transfer of the former spouses’
Dana Bay property (also
referred to as “the property”) to the purchaser.
This respondent does not oppose the
application and consequently I
shall for the sake of convenience refer to Mr L as the respondent.
III
THE RELIEF
SOUGHT
[6] As a consequence of
an urgent application lodged by applicant a rule
nisi
was
issued on 29 June 2018. It is quoted
verbatim
:
“
1.
Condonation is granted to the applicant for the non-compliance with
the Uniform Rules pertaining to form and service and that
this
application be heard as an urgent
ex
parte
application in terms of the provisions of Uniform Rule 6(12).
2. A
rule
nisi
is issued calling upon the first and second respondent to show cause,
if any, to this Honourable Court, on
2
August 2018
at
09:30
why
the following orders should not be made final:
2.1
That, subject to paragraph 2.2 infra, the second respondent is
interdicted to execute any instructions given to it by the first
respondent with regards to the payment and/or transfer of the
proceeds of the funds available from the sale of Erf […],
[…],
Danabaai, Western Cape Province (hereafter “the property’)
after having settled the transfer costs, agent’s
commissions,
outstanding municipal charges and the balance due and owing to
Standard Bank in order to discharge the bond registered
over the
property;
2.2
That the second respondent is ordered to preserve the first
respondent’s half (50%) share of the proceeds from the sale
of
the property, on an interest bearing account in terms of the
provisions of Section 78A of the Attorney’s Act, 1973, (sic)
pending finalization of the action referred to in paragraph 4 infra.
2.3
That the first respondent be ordered to pay the cost of this
application on the scale as between attorney and client.
3.
That the relief set out in subparagraphs 2.1 and 2.2 supra operates
as interim interdict pending the institution and finalization
of the
action referred to in paragraph 4 infra.
4.
That the applicant institute an action, within thirty (30) days after
finalization of this application, against the first respondent
for
the payment of the first respondent’s half share of the
proceeds from the sale of the property, or any other amount which
the
applicant alleges that the first respondent is indebted to her and
pending finalization of the action instituted in the Free
State High
Court under case no 2613/2014.”
IV
THE
ISSUES IN DISPUTE
[7]
Respondent’s main defence is based on the premise that
“
this
claim ought to have been dealt with in the accrual action.”
[8]
Respondent also denies that applicant paid more than what she was
pro
rata
liable
to pay. On his version much of the expenses were paid from
their joint funds and he personally made payments which
applicant
conveniently disregarded. He also made improvements to the
property in the amount of at least R450 000.00.
He is of
the view that he has made greater contributions than applicant, but
“…
.
it was his understanding that there would never be a quibble about
who contributed what amounts to the property as well as other
properties….”
Therefore
applicant has no claim against him.
V
THE
UNDISPUTED BACKGROUND
[9] The following facts
appear from the application papers as well as the divorce file which
is about 15 cm thick, which I perused.
The facts are mainly
undisputed. Where there is not full agreement, it will be
stated:
1) The
applicant and respondent were married out of community of property
with inclusion of the accrual system, but this marriage
was dissolved
on 3 September 2015, more than three years ago.
2) The
parties’ deed of settlement was made an order of court.
It is actually ironic to refer to the document as such
as it merely
serves as proof that the parties did not settle anything except that
they both forfeited their right to claim maintenance
from each other.
3)
There was a dispute about the correctness of the parties’
financial statements prior to divorce and the dispute remains.
4) The
parties’ ante-nuptial contract provides for commencement values
as will be indicated
infra
and
an unusual term that the spouse with the smaller accrual will only be
entitled to 30% of the difference in the respective accruals.
5)
Contrary to the provisions in the deed of settlement, the parties
failed to file their affidavits setting out assets and liabilities
together with supporting documents within 30 days. Applicant filed
hers on 3 May 2017 and respondent his on 31 August 2016.
Neither of the parties has applied for new hearing dates as they
agreed to do in the event of a failure to settle. There
was no
request for a pre-trial hearing
ex
facie
the
court file.
6)
Applicant’s net estate based on her affidavit (which includes
her claim against respondent in respect of the Dana Bay property
in
the amount of R720 406.54) amounts to R2 621 935.00.
The net estate of respondent is R1 557 586.00
and for
obvious reasons he did not indicate that he was indebted to
applicant. The difference in the net estates on the information
tendered by the parties is R1 064 349.00. Based on
this figure respondent would have a claim of R319 304.00
against
applicant. Obviously, if he provided the same amount relied
upon by applicant as a debt, his estate would be worth
some
R700 000.00 less and his right to accrual greater. As
mentioned, the parties remain at loggerheads. My
prima
facie
impression from the papers is that respondent and the truth might be
strangers to one another. I shall explain
infra
.
7) The
Dana Bay property has been sold for R1 500 000.00 and the
attorney and conveyancer, Mr Ian Ellis of second respondent
(the firm
carries his name) was instructed to undertake registration of
transfer in the name of the purchaser.
8) The
parties are in agreement that the net proceeds of the sale will be
about R940 000.00, the effect being that they as
co-owners are
each entitled to about R470 000.00, unless applicant succeeds in
proving that she contributed more in respect
of the property than
obliged to do, or put otherwise, that she subsidised respondent who
failed to pay his fair share.
9)The
documents were sent to Mr Ellis’ correspondents in June 2018
for submission at the Deeds Registry for registration.
This,
and the apparent dispute between the parties as to who of them made
greater contributions than the other in respect of the
property,
triggered an urgent application.
10) As indicated
supra,
on 29 June 2018 a rule
nisi
returnable on 2 August 2018
was issued. Answering and replying affidavits were filed, the
rule
nisi
was extended and the matter was eventually set down
for hearing on 18 November 2018.
VI
ACCRUAL
IN TERMS OF THE
MATRIMONIAL PROPERTY ACT, 88 OF 1984
AND THE
ANTE-NUPTIAL CONTRACT
[10]
It is not my task to adjudicate respondent’s accrual claim.
However, respondent raised the issue and submitted
that the present
dispute should be adjudicated as part and parcel of the accrual
dispute. Therefore I regard it apposite
to briefly refer to the
principles applicable to accrual.
[11]
In
order to provide some background to the accrual system I quote
selectively
from
sections 3
,
4
,
6
and
7
of the
Matrimonial Property Act, 88 of
1984
:
“
3
Accrual
system
At
the dissolution of a marriage subject to the accrual system, by
divorce or by the death of one or both of the spouses, the
spouse
whose estate shows no accrual or a smaller accrual
than the estate of the other spouse, or his estate if he is deceased,
acquires
a claim against the other
spouse or his estate
for
an amount equal to half of the difference between the accrual of the
respective estates
of the spouses.
(2)
Subject to the provisions of
section 8
(1), a
claim
in terms
of subsection (1)
arises at the dissolution of the marriage
and the right of a spouse to share in terms of this Act in the
accrual of the estate of the other spouse is during the subsistence
of the marriage not transferable or liable to attachment, and does
not form part of the insolvent estate of a spouse.
4
Accrual of estate
(1)
(a)
The
accrual of the estate of a spouse is the amount by which the net
value of his estate at the dissolution of his marriage
exceeds the
net value of his estate at the commencement of that marriage.
6
Proof of commencement value of estate
(1)
….
(2)
….
(3) An
antenuptial contract contemplated in subsection (1) or a certified
copy thereof, or a statement signed and attested
in terms of
subsection (1) or a certified copy thereof contemplated in subsection
(2), serves as
prima
facie
proof
of the net value of the estate of the spouse concerned at the
commencement of his marriage.
(4)
….
7
Obligation to furnish particulars of value of estate
When
it is necessary to determine the accrual of the estate of a spouse or
a deceased spouse, that spouse or the executor of the
estate of the
deceased spouse, as the case may be, shall within a reasonable time
at the request of the other spouse or the executor
of the estate of
the other spouse, as the case may be, furnish full particulars of the
value of that estate.” (emphasis
added).
[12]
Notwithstanding the principle set out in
s 3
, the parties explicitly
agreed in their ante-nuptial contact that the spouse whose estate
accrued the lesser of the two, shall
be entitled to 30% only, and not
50%, of the difference between the accrual of the respective
estates. They agreed that the
commencement values of their
estates were R10 000.00 in respect of applicant and R20 000.00
in respect of respondent.
[13]
The accrual in the parties’ respective estates must still be
determined by the court as the parties will apparently not
settle
their differences. There are serious disputes between them.
I shall mention some
infra.
[14]
The law is clear: the date for determination of accrual is the date
of dissolution of the marriage by either death or divorce.
Therefore any accrual taking place after divorce and prior to
adjudication by the court cannot be taken into account. The
same should apply to a decrease in a spouse’s estate during
such time.
[15] Respondent who is
the plaintiff in the divorce action seeks compliance with the
parties’ ante-nuptial contract.
Clearly he believes that
applicant’s estate accrued more than his. Applicant, on
the other hand, seeks an order that
respondent forfeits the benefits
flowing from the ante-nuptial contract. The inference is obvious: she
also believes that her estate
has accrued more than that of
respondent.
VII
THE
ACTIO
COMMUNI DIVIDUNDO
[16]
The parties are co-owners of the property that has been sold, but
they are disputing the basis upon which the proceeds should
be
distributed. This is a classical case where the
actio
communi dividundo
should
come into play, was it not for the accrual dispute. This aspect
will be dealt with during my evaluation i
nfra
,
but it is apposite to first consider the relevant authorities
relating to the
actio
.
[17] In
Robson v
Theron
1978 (1) SA 842
(AD) at 856H and further the court stated
the following:
(B)
The principles of the common law applicable to the
actio
communi dividundo
may
be briefly summarised as follows:
1.
No co-owner is normally obliged to remain a co-owner against his
will.
2.
This action is available to those who own specific tangible things
(
res
corporales
)
in co-ownership, irrespective of whether the co-owners are partners
or not, to claim division of the joint property.
3.
Hence this action may be brought by a co-owner for the division of
joint property where the co-owners cannot agree to the method
of
division. Since a partnership asset is joint property which is held
by the partners in co-ownership, it follows that a partner
may as a
co-owner bring this action for the division of a partnership asset
where the co-partners cannot agree to the method of its
division. This would obviously cover the position where, after
dissolution of a partnership, a continuing partner as a co-owner
retains possession of an undivided partnership asset. A retiring
partner as a co-owner would accordingly be entitled to institute
this
action against the continuing partner as co-owner to compel
a division of the partnership asset in question.
4.
It is for purposes of this action immaterial whether the co-owners
possess the joint property jointly or neither of them possesses
it or
only one of them is in possession thereof.
5.
This
action may also be used to claim as ancillary relief payment
of
praestationes personales
relating
to profits enjoyed or
expenses incurred
in connection with the joint property
.
6.
A court has a wide equitable discretion in making a division of joint
property. This wide equitable discretion is substantially
identical
to the similar discretion which a court has in respect of the mode
of distribution of partnership assets among partners
as
described by
Pothier
.”
(emphasis added).
[18]
In
Rademeyer
& others v Rademeyer & others
1968
(3) SA 1
(CPD) the court stated the following:
“
In
an action brought to terminate community of property, with the
division of the property held in common,
the
settlement of all outstanding claims between the parties in respect
of the community takes place also
.
With the division of the property are settled all claims which the
owners may have one against the other in respect of the property
and
they receive each one his share free of any lien that any joint owner
may have in respect of money spent on protecting, maintaining
or
improving the common property.” (at p 12).
“
Before
the proceeds of a sale are divided among the joint owners, they are
entitled to have all accounts in respect of the property
adjusted
inter
se
because,
when community of property comes to an end, then
all
the obligations
in respect of that community
should
also be terminated through fulfilment
.
In fact there is a
debate
of account
between the joint owners in respect of the property they own jointly
and are now seeking to divide between them.” (at p 14
–
emphasis added).
[19]
In
Claassen
v Quenstedt
2014
JDR 0534 (ECP) the court made a comprehensive order, catering for
every eventuality, in order to terminate the co-ownership
of two
co-owners. In the process the following orders were made as well:
“
[25.3.3.4]
the distribution to both parties of the net residue as to be
determined in accordance with the provisions of prayers
[25.4] to
[25.6] below;
[25.4] In the event of
[25.4.1] the valuation
not agreed upon; and/or
[25.4.2] the property not
being sold within such 21 day period; and/or
[25.4.3] the parties
failing to reach an agreement as to the amounts due to them
respectively;
that each party render to
the other a full account, supported by vouchers, of all expenses
incurred in respect of the property,
and how he/she proposes the net
proceeds are to be divided;
[25.5]
Debate of the said amounts;
[25.6]
Division of the net proceeds of the sale of the property between the
parties in accordance with the Court’s final finding
on such
amount;”
[20]
C G van der Merwe,
Sakereg
,
2
nd
ed at 389 and further is adamant, with reference to Grotius and other
authorities, that when the
actio
communi dividundo
is instituted,
“…
word
nie slegs verdeling van die saak nie, maar ook ‘n onderlinge
verrekening tussen die eienaars aangevra. Alle uitstaande
uitgawes vir noodsaaklike verbeterings, die onproporsionele
insameling van vrugte en verliese gely as gevolg van die skuld van
‘n
mede-eienaar, word dan ook in verrekening gebring.”
The effect of this
is that distribution can take place, in the absence of agreement,
only once a proper debatement of the amounts
claimed has taken
place. See also: Badenhorst
et
al, Silberberg and Schoeman’s The Law of Property
5th
ed, 136.
VIII
EVALUATION
[21]
The two advocates have divergent views on the topic. Mr
Zietsman submitted that applicant seeks an
interim
interdict requiring her to prove the four customary requirements for
such interdicts in order to succeed. In the process
of
adjudication, so he argued, the court is entitled to consider the
probabilities. Mr Louw argued that applicant’s
relief can
be described as an anti-dissipation interdict
in
securitatem debiti.
Therefore
she had to show that, objectively considered, there are good grounds
for fearing that the respondent intends to dissipate
his assets in
order to defeat the applicant’s claim. The kind of
interdict to which Mr Louw referred is also an
interim
interdict, the purpose of which is to restrain a respondent from
dissipating his assets for the purpose of avoiding execution of
a
judgment. See:
Knox
D’Arcy Ltd and others v Jamieson and others
1994 (3) SA 700
(WLD) at 706B-J. In essence, and as stated by
Stegmann J in the second
Knox
D’ Arcy
judgment reported in
1995 (2) SA 579
(WLD) at 600B, the legal
requirements for an
interim
interdict
in
securitatem debiti
are no different from the legal requirements for any other
interim
interdict. Mr Louw tried to make too much of the fact that
applicant stated under oath that if an interdict is not granted,
she
may not be in a position to recover from respondent what is due to
her. The test in this regard is the same as is applicable
to
the second requisite for
interim
interdicts, to wit a well-grounded apprehension of irreparable harm
which must be objectively considered.
[22]
It
is apposite to refer to the following
dicta
in
RS
v MS
2014 (2) 511 (GJ) at paras [14]-[18] as Mr Louw also relied on this
judgment in support of his argument:
“
[14]
Whatever claim the applicant therefore might have at this juncture in
respect of the separate property of the first respondent
or a part
thereof, it is not a vested right, but a right contingent upon the
divorce that she seeks. But at this juncture her claim
of a right is
disputed.
[15]
The applicant therefore has no general right to prevent the
first respondent from freely dealing with his own separately
held property in respect of which she has no vested right; and
neither does she have a general right to seek to compel the first
respondent to regulate his bona fide expenditure and use of his
property so as to ensure that funds are available for the settlement
of her alleged contingent right.
[16]
In this regard, therefore, when it is submitted on behalf of
the respondent that the applicant has failed to establish
a
prima facie right to the funds held in the various accounts targeted
by the relief she seeks, I agree. I also agree with the
submission
that the applicant will only have a claim for payment of moneys
if
it is established at the dissolution of the marriage
that there
was, at the effective date agreed by the parties,
an accrual
in the first respondent's estate that is greater than the accrual in
the applicant's estate.
[17]
However, it is trite that even a contingent right to claim half of
the accrual in the estate of the other spouse could be protectable
by
interdict pendente lite, but then an applicant for such relief must
show:
(a)
that
the respondent has assets within the jurisdiction of the court;
(b)
that
the respondent, prima facie, has no bona fide defence against the
applicant's alleged contingent rights;
(c)
that
the respondent has the intention to defeat the applicant's claim or
to render it hollow by dissipating or secreting assets.
[18]
But, even if these jurisdictional requirements are present, then an
applicant must still show a well-grounded apprehension
of irreparable
loss, should the interdict pendent lite not be granted. It is perhaps
apposite here to point out that, because of
the Draconian nature,
invasiveness and conceivably inequitable consequences of such
anti-dissipation relief, the courts have
been reluctant to grant
it, except in the clearest of cases. See generally:
Knox
D'Arcy Ltd and Others v Jamieson and Others
1996
(4) SA 348
(A)([1996]
3 All SA 669
;
[1996] ZASCA 58)
at 372C;
Mngadi
v Beacon Sweets & Chocolates Provident Fund and Others
2004
(5) SA 388
(D)
([2003]
2 All SA 279)
at 396E;
Reeder
v Softline
supra
at 849 – 851.”
[23]
The extract from the aforesaid judgment clearly shows that the facts
therein are distinguishable from the facts
in
casu
.
The present applicant claims an entitlement based on excessive
payments as co-owner of the property and debatement of accounts
as
part of division of the co-ownership. It is true that her
notice of motion is somewhat confusing insofar as the intention
is
created that she wants the dispute in terms of the accrual system to
be adjudicated simultaneously.
[24]
The authors of
Wille’s
Principles of South African Law
,
9
th
ed at 558 refer to co-ownership as
“
communion
est mater rixarum”
or
in English, co-ownership is the mother of disputes. We all too
often experience the consequences of this maxim when partnerships
are
dissolved, marriages in community of property come to an end and
co-owners of especially immovable property held in undivided
shares
do not see eye to eye anymore. People who were either in love
relationships, or who trusted each other, often get
entangled in
fierce fighting over money, the root of all evil as the saying goes.
[25]
There is some uncertainty on the papers as to the amount of
applicant’s claim. I indicated
supra
that she stated that her claim against respondent in respect of the
property was an amount of R720 406.54 on the date of divorce
for
purpose of accrual adjudication. In paragraph 6.4 of the
founding affidavit she alleged that her excess contributions
amounted
to R1 533 404.58. She then referred to annexure “EL3”
consisting of numerous bank statements
and entries thereon marked by
her. Surely it could not be expected of the court in
application procedure to do its own forensic
investigation and
analysis to establish whether her version under oath corresponds with
the exhibit relied upon. Mr Zietsman conceded
that the allegation in
paragraph 6.4 is wrong and he was at pains to indicate what was in
fact owed by respondent. In annexure
“E3.1” to the
founding affidavit applicant presented a detailed summary of all
payments by the parties in respect of
the property. On her
version she made payments in the total amount of R1 820 813.08
and respondent in the amount
of R780 000.00. Therefore she
paid R1 040 813.08 more than respondent. In order to
break even –
or for the parties to have contributed evenly –
Mr Zietsman submitted that respondent owes her 50% of the latter
amount,
to wit R520 406.54. This is more than half of the
net amount due to respondent in respect of the property as mentioned
supra
.
[26]
Respondent raised the point that applicant did not indicate in her
financial statements as at 28 February 2015 that she had
a claim
against him pertaining to the Dana Bay property or at all. I do
not think too much should be read into this.
The correspondence
exchanged during 2015 between the attorneys pertaining to the
possible sale of the property, attached to the
replying affidavit,
indicate that applicant held the view that she contributed more than
respondent and if the property was to
be sold, his 50% share ought
not be paid out to him.
[27]
It is my
prima
facie
view
that respondent is not playing open cards with the court. I say this
for the following reasons:
1) His
allegation that he made a contribution of R1 487 218.49 in
respect of bond instalments and other expenses is improbable
and
false. Applicant has shown beyond any doubt that she had lent
the total amount of R1.2m to respondent’s company,
Lago Park as
indicated in this close corporation’
s 2014
financial
statements. Her explanation as to how this debt was settled is
convincing and probable.
2)
Respondent’s version that the rental of one of his properties
was to be used to settle expenses in respect of the Dana
Bay property
is denied by applicant. She explained that the rental was paid to her
long before the Dana Bay property was purchased
and such payments
were respondent’s contribution to the parties’ communal
home and for the upbringing of their child
and respondent’s
child from a previous marriage. Her version is more probable.
3)
According to respondent he spent at least R450 000.00 in respect
of improvements. Save for mentioning the type of
improvements,
he failed to take the court in his confidence to inform us what
amounts were spent on each of the improvements, which
contractors
were used and when and how much each of them were paid.
Applicant dealt with this allegation in reply and her
detailed
version appears more probable than that of respondent.
4)
Respondent wants the court to believe that he is a successful
businessman. He is the sole member of Lago Park CC which
“
generates
a substantial income.”
He
is also the sole member of a hardware store in Ladybrand and he holds
50% of the shares in a Lesotho company that manufactures
roof
trusses. Yet, none of these assets, consisting of his
membership and shareholding, are set out in his financial statement
made under oath for purposes of the accrual adjudication.
5)
Standard Bank issued a demand in terms of s 129 of the National
Credit Act during October 2017, claiming an amount in excess
of
R380 000.00 from Lago Park CC. Applicant is concerned that
respondent may relocate to Lesotho, based on what he told
her, which
may cause difficulties in executing any judgment she may obtain
against him which is denied by respondent.
[28]
I am satisfied that the following factors must be taken into account
in order to come to an equitable outcome:
1) The
principles applicable to the
actio
communi dividundo
should be considered, bearing in mind the action applicant intends to
institute.
2) The
parties are co-owners in equal shares of the property and the
increase or decrease in value of the property does not play
a role in
adjudicating accrual of their estates as would have been the case if
the property belonged only to one of them.
3) The
parties have decided to sell the property and the conveyancer is on
the verge of registration of transfer thereof in the
name of the
purchaser – in fact, registration would have taken place in the
absence of the rule
nisi
.
4) The
proceeds must be distributed once the parties’ claims emanating
from expenses to this property only, has been considered
and
adjudicated; however, respondent does not seriously lay any claim in
respect of applicant’s one half share in the property
and
therefore it is not necessary to “freeze” the whole net
proceeds.
5) There is no reason why
this transaction should be considered as part of the accrual dispute
especially as the parties hold it
in co-ownership and further
expenses have been incurred in respect thereof over the past three
years that cannot be considered
during adjudication of accrual.
IX
CONCLUSION
[29]
Although the net proceeds are normally distributed to the co-owners
in the event of a dispute only once a debatement has taken
place,
there is no reason why applicant should not now be entitled to 50% of
the net proceeds of the property. Respondent
has not requested
the court, either in the answering affidavit, or in a
counter-application, that the whole of the net proceeds
shall be kept
in trust pending finalisation of the dispute. I am satisfied
that the only equitable solution to the dispute
is to make orders in
line with the relief sought. Therefore I exercise my discretion
in favour of applicant. It is necessary
to preserve respondent’s
share pending institution and finalisation of an action by applicant
in order to prove that she
contributed a greater amount than
respondent in respect of the property. No other claims,
relating to accrual or from any
other source shall be instituted and
adjudicated in this regard. The order will provide for this.
It needs to be mentioned
that the reference in the notice of motion
and rule
nisi
to the 1973 Attorneys Act is wrong. The correct Act is the
Attorneys Act, 53 of 1979. Nothing turns on this and the
mistake was not even picked up by any of the parties. It is a
patent error which is hereby rectified
mero
motu
in terms of rule 42(1)(b).
[30] Although applicant
is entitled to relief, I have decided in the exercise of my
discretion not to grant her costs of the application
at this stage of
the proceedings. In my view it would be equitable to order the
costs of the application to be adjudicated
at the trial and after
having had the advantage of
viva voce
evidence tested in
cross-examination.
X
ORDERS
[31]
The following orders are issued:
1)
Paragraphs
2.1 and 2.2 of the rule
nisi
issued on 29 June 2018 (as amended) are confirmed.
2)
Second
respondent is authorised and ordered to pay applicant’s 50%
(fifty percent) share of the net proceeds from the sale
of the
property to her on registration of transfer in the name of the
purchaser.
3)
Applicant
shall within 30 (thirty) days institute action against first
respondent for payment of the amount due to her in respect
of her
payments made in excess of 50% (fifty percent) of all bond payments,
municipal costs and all other incidental costs relating
to the
property, failing which second respondent is authorised and ordered
to pay to first respondent his 50% (fifty percent) of
the net
proceeds from the aforesaid sale
4)
The
costs of the application shall stand over for adjudication during the
trial.
____________
J P
DAFFUE, J
On
behalf of applicant : Adv P J J Zietsman
Instructed
by: Kramer Weimann & Joubert Inc
BLOEMFONTEIN
On
behalf of the 1
st
respondent: Adv M C Louw
by:
Honey Attorneys
BLOEMFONTEIN