About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 95
|
|
N v N. N.O (1230/2016) [2017] ZAFSHC 95 (15 June 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1230/2016
In
the matter between:
N.
S. N.
Plaintiff
and
N.
R. N.O.
Defendant
HEARD
ON:
2, 3 and 8 MARCH
2017
JUDGMENT
BY:
REINDERS, J
DELIVERED
ON:
15 JUNE 2017
[1]
The Plaintiff is N. S. N. (Ms N.). The Defendant is N. R. N.O. (Mr
R.), cited in his capacity as duly appointed Executor in
the Estate
of the late Mr N. P. L. (“the deceased”). The matter was
heard on 2 March 2017, and Heads of Argument were
filed as requested
by counsel on 3 and 8 March 2017 respectively.
[2]
The background facts to the dispute are largely common cause. Ms N.
and the deceased were married in community of property.
Divorce
proceedings were instituted by Ms N. on 22 October 1999. On 2 August
2001 a final decree of divorce was granted, incorporating
a Deed of
Settlement (annexed to the pleadings as Annexure “P2”)
entered into between the parties. This action pivots
around the
consequences arising from the said Deed of Settlement, in particular
the clauses pertaining to the division of the joint
estate regarding
the immovable property. These read as follows:
“
2.1
Immovable Property
2.1.1
The Plaintiff agrees to purchase the Defendant’s
share of the
property, Erf [...], Heidedal, commonly known as [...] K. S., B.,
Heidedal.
2.1.2
As the property was valued in the amount of R 130 000,00
the
Defendant’s share is R 65 000,00.
2.1.3
The Plaintiff will apply for a State Guarantee, and
on approval and
finalisation thereof will pay the Defendant an amount of R 65 000,00;
where
2.1.4
Should the Plaintiff be unsuccessful in her application
for a State
Guarantee, the property will be sold and the dividend be shared.
2.1.5
Upon payment to the Defendant of his half share in
the immovable
property situated at [...] K. S., Heidedal, the said immovable
property will become the sole and exclusive property
of the
Plaintiff.
2.1.6
The Plaintiff will be liable for the transfer fees
in having the
property transferred to her name.
2.1.7
The parties hereto agree that the Defendant is liable
for the
outstanding water and electricity account. The parties agree further
that they are jointly liable for the outstanding amount
in rates and
taxes.”
It
is common cause that the Erf number in clause 2.1.1 was incorrect due
to a typing error and is in fact Erf [...] (“the
property”).
[3]
Ms N. prayed for a declaratory order entitling her to payment of the
entire purchase price of the property held in trust at
Krohn
Attorneys. During the trial amended relief was sought to the effect
that Ms N. tendered payment of the amount of R 43 202,01.
The
calculation of the said amount will be dealt with more fully in par
[12] below. In the result she prays for a declaratory order
that she
be entitled to payment of the entire purchase price held in trust at
Krohn Attorneys less the amount of R 43 202,01
as tendered.
[4]
Defendant opposes the relief sought by Ms N. and in a counterclaim
moves for payment in the amount of R 340 000.00 plus
interest
thereon.
[5]
In addition to the background facts alluded to in par [2] above, Ms
N. testified that she applied for a Government Guarantee
in respect
of the property on or about 24 April 2001 and/or 6 May 2001. Shortly
after the granting of the decree of divorce on
2 August 2001, she
obtained same. She could not recall the exact date hereof. Hereafter
attempts by herself and her attorneys of
record to make payment to
the deceased of the R65 000.00, albeit in the transfer process,
were futile at that stage. Even
though being represented at that
time, no application to compell the deceased to sign transfer
documentation was ever lodged. On
or about 30 August 2006 she paid
the outstanding rates (R 13 548,77), sanitation (R 7 736.66)
and water (R 11 155.26)
totalling the amount of R 32 440,69,
in respect of the property (Annexure “A” p15). She also
made renovations
to the property during 2006. Shortly hereafter she
got information that the deceased was at a tavern in K. Street and
again tried
to arrange with the deceased to effect payment of R
65 000.00 as she was unable to obtain the title deed to the
property.
He agreed to sign the necessary documentation but it never
came to fruition. As she had suffered both physical and emotional
abuse
at the hands of the deceased during their marriage, she was
afraid of approaching him. During cross examination by Mrs
Khooe
on behalf of the Defendant, Ms N. conceded that, even though
armed with a court order, the court was never engaged in any way
whatsoever
in enforcing the terms of the Deed of Settlement. She
never effected any payment to the deceased before he passed away on
10 November
2008 (seven years after the final decree of divorce was
granted). To this day no such payment was effected.
[6]
The Defendant bases its defence and counterclaim thereupon that Ms N.
did not obtain a Government Guarantee as provided for
in clause 2.1.3
of the Settlement Agreement. The evidence-in-chief and
cross-examination of Mr R. primarily centred around this
aspect. He
testified that he was appointed as executor of the deceased on 21
January 2015. He was a party to the sale of
the property to one
Mr and Mrs Liphoko and was in contact with Krohn Attorneys throughout
the entire process. It was agreed between
Ms Lebata and Mr R. that
the property could be sold, and he confirmed in a letter dated 7
January 2016 that the proceeds of the
sale will be shared according
to the Deed of Settlement. Mr R. disputed that Ms N. was successful
in obtaining a Government Guarantee,
and as is evident from a letter
by himself addressed to Krohn Attorneys on 7 January 2016, Ms N.
failed to comply with clause 2.1.3
of the Deed of Settlement. He
concluded that it is expected that the proceeds of the sale of the
property be shared equally as
is envisaged in clause 2.1.4 thereof.
[7]
There is no dispute between the parties regarding the interpretation
of the Deed of Settlement. Mr Tsangarakis appearing on
behalf of Ms
N., referred me to
Ex
parte Spinazze and Another N.N.O.
1985 (3) SA 650
(A)
.
This matter dealt with the registration of an antenuptial contract
and it was held that where the validity of same is in
question, the
contract remains valid
inter
partes
.
Furthermore, if one of the parties to the contract has died, the
contract would be operative as between the estate of the deceased
party and the surviving party and would determine,
inter
partes
,
their property rights. Indeed the Settlement Agreement
in
casu
is
operative between Ms N. and the Defendant.
[8]
It was further contended in his heads of argument that clause
2.1.5 of the Settlement Agreement “clearly provides”
that
the property will become the sole and exclusive property of the
Plaintiff
upon payment
(my emphasis) to the Defendant of his
half share in the immovable property. I am in agreement with
this submission.
[9]
The Settlement Agreement which was made an order of court did not
inter
partes
make Ms N. the owner of the property. To become the owner of the
property in terms of the Deed of Settlement she had to:
1.
obtain
a State Guarantee;
2.
pay
the deceased his half share in the property; and
3.
have
the property “transferred to her name”.
[10]
Mr Tsangarakis placed reliance on
the
full bench decision in
Corporate
Liquidators (Pty) Ltd and Another v Wiggill
and
Others
2007 (2) SA 520
(T) in respect of the vesting of dominium. The court
held that, where parties to divorce proceedings agree that each party
are
to receive a particular property upon divorce, dominium of the
properties vested immediately in the spouses and registration of
transfer was not a prerequisite for vesting of same. In
in
casu
however
there is a court which specifically stipulates the terms of the
contract between the parties as alluded to in par [9] above.
[11]
Assuming
that Ms N. obtained a State Guarantee, the R 65 000,00 was never
paid to the deceased, nor was his name removed to
make her the sole
owner of the property. The short and the long of the matter is
therefore that she did not become the sole owner
thereof. It is nor
here nor there to aver that the deceased did not want to accept
payment. The mere fact that she had challenges
in having the deceased
sign the transfer documentation does not relieve her of the
obligations in terms of the Settlement Agreement.
Had Ms N. been
serious to become the sole owner of the property, I would reasonably
have expected of her to persist in consulting
with an attorney and to
have the property properly transferred into her name. In all
probability had she done so, she would have
had to pay the R
65 000,00, albeit through the conveyancer, within a
reasonable
time. This never happened. The deceased passed on in 2008. Even after
his death years passed and yet she did not consult with an
attorney
to attend to registration of the property in her name. It does
not suffice to now tender payment of the R 65 000.00
(less the
expenses paid by her as alluded to in par [3] above) almost sixteen
years later in an attempt to make the contract
perfecta
.
In my view the Plaintiff had the onus to prove upon a preponderance
of probabilities that she has complied with her obligations
and have
executed the contract. For the reasons stated above I cannot conclude
that she had done so and for that reason I cannot
make the declarator
as sought in the summons.
[12]
The counterclaim seeks and order dividing the purchase price which
has been held in trust with Krohn Attorneys.
In
paragraph 6.1 of the counterclaim it is averred that the property was
sold for an amount of R 614 662.38, and in paragraph
6.2 the
averment is made that the Defendant is entitled to R 340 000.00
being half of the amount referred to in par 6.1. The
amount in par
6.1 appears to be the nett balance of the purchase price according to
the Defendant. I do not know how the amount
of R 340 000.00 is
calculated. It is definitely not half of the amount in par 6.1. The
final account by Krohn Attorneys (Exhibit
“A” at page 31)
reflects the selling price as R 680 000.00, and the balance held
in trust as R 614 661.69.
Defendant is not entitled on the
evidence before me to more than half of the amount held in trust. I
do not need to speculate as
to the difference in the purchase price
as reflected and the amount held in trust, but the counterclaim as it
stands, cannot succeed.
[13]
No relief was sought by Ms N. in respect of the alleged renovations
to the property in the amount of R 395 635.00, and
quite
correctly so. The only evidence before me is a document titled
“Alterations at Erf [...] K. str bloemside For Ms N.S.
N.”
dated 19 January 2016 (Exhibit “A” p 18-27). The alleged
renovations were made in 2006. I do not know if
the values assigned
to items reflect the value of same as on 2006 or 2016, or with how
much it improved the value of the property.
I can therefore not make
such a calculation or take it into account.
[14]
It appears to be common cause however that Ms N. paid the arrears
rates, sanitation and water on the property in the amount
of
R
32 440,69. In terms of clause 2.1.7 of the Deed of
Settlement the deceased is liable for the outstanding water and
electricity and the parties are jointly liable for the outstanding
rates and taxes in respect of the property. Ms N. paid an amount
of R
11 155.26 in respect of the water, and R21 285.43 in
respect of the rates and sanitation, of which she was only
obliged to
pay half (R10 642.72). The amount tendered by Ms N. is
thus the balance of R 65 000.00 less the amount
of R 21 797.98
which the deceased was contractually obliged to pay.
I
have already indicated that I cannot grant the amended relief as
sought by Ms N.. I am however taking the amount of R 21 797.98
into account in granting the order in par [14.1] below.
[15]
The Plaintiff’s claim cannot succeed and is dismissed. The
Defendant’s counterclaim cannot be granted as requested
and is
thus also not successful as it stands. In my discretion I am of the
view that each party be liable for his/her own costs.
[16]
Accordingly the following orders are issued:
14.1
An
amount of R 21 797.98 of the proceeds held in trust by Krohn
Attorneys in respect of the property known as [...] K. S.,
Bloemside, Heidedal is to be paid to the Plaintiff whereafter the
remainder of the nett proceeds are to be shared equally between
the
Plaintiff and the Defendant.
14.2
Each
party to pay its own costs.
_____________
C
REINDERS, J
On behalf of
Plaintiff: Adv
S. Tsangarakis
Instructed by:
Symington & De
Kok
Bloemfontein
On behalf of
Defendant: Adv. N.J. Khooe
Instructed by:
R. Attorneys
Bloemfontein