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[2018] ZASCA 154
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Fischer v Ubomi Ushishi Trading and Others (1085/2017) [2018] ZASCA 154; 2019 (2) SA 117 (SCA) (19 November 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1085/2017
In
the matter between:
ANDRE
FISCHER APPELLANT
and
UBOMI
USHISHI TRADING
CC FIRST
RESPONDENT
RODNEY
HAYNES SECOND
RESPONDENT
CHARLENE
LA-VERNE HAYNES
(nèe
BRINKMEIER) THIRD
RESPONDENT
Neutral
citation:
Fischer v Ubomi Ushishi
Trading & others
(1085/2017)
[2018]
ZASCA 154(19 November 2018)
Coram:
Shongwe ADP and Cachalia, Saldulker and
Schippers JJA and Mothle AJA
Heard:
05 September 2018
Delivered:
19 November 2018
Summary:
Deeds Registries Act 47 of 1937 (the
Act) – transfer of immovable property formerly an asset in
joint estate of spouses married
in community of property –
whether ownership of half share in immovable property vests
immediately in spouse upon granting
of divorce order or through
transfer by way of endorsement under the Act – whether spouse
acquires personal right to claim
transfer by virtue of divorce order.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Nelson AJ sitting as court of first
instance):
The
appeal is dismissed with costs.
JUDGMENT
Saldulker
and Schippers JJA (Shongwe ADP, Cachalia JA and Mothle AJA
concurring):
[1]
This appeal raises the question whether a real right to a half share
in immovable property vests in a spouse immediately upon
the
dissolution of a marriage in community of property pursuant to a
court order incorporating a settlement agreement in terms
of which
one spouse foregoes his half share in the property in favour of the
other, or whether that right vests only after endorsement
of transfer
in the Deeds Registry. An ancillary issue concerns the nature of the
right acquired by the spouse by virtue of a court
order.
[2]
Mr and Mrs Haynes, the second and third respondents respectively, are
the registered owners of immovable property known as Erf
31865,
Goodwood, Cape Town, located at 6 Arlington Crescent, Riverton,
Western Cape (the property). Their marriage in community
of property
was dissolved by an order of divorce dated 10 December 2012. In terms
of a settlement agreement incorporated in the
divorce order, Mr
Haynes waived his right, title and interest in the property in favour
of Mrs Haynes.
[3]
In 2015 the appellant, Mr Andre Fischer, obtained default judgment
against the first respondent, Ubomi Ushishi Trading CC (Ubomi)
and Mr
Haynes for payment of the sum of R566 500, and applied for an
order declaring Mr Haynes’ undivided half share
in the property
specially executable.
[4]
The Western Cape Division of the High Court, Cape Town
,
dismissed
the application. It held that upon the granting of the decree of
divorce, dominium of the property vested with immediate
effect in Mrs
Haynes. The issue on appeal is whether the court a quo was correct in
dismissing the application. The appeal is with
its leave.
[5]
In 2007 Mr and Mrs Haynes acquired the property from Mrs Haynes’
father subject to a lifelong usufruct in favour of the
latter. The
settlement agreement which they concluded on 7 November 2012, dealt
with the property as follows:
‘
4.
PATRIMONIAL
ASSETS
4.1 IMMOVABLE PROPERTY
The parties record that
they are co-owners of the immovable property situated at 6 Arlington
Crescent, Elsies River, being Erf 31865
Cape Town and agree:
4.1.1
That the immovable property be awarded to the Plaintiff [Mrs Haynes]
and the Defendant [Mr Haynes] waives all rights, title
and interest
in respect of same in favour of the Plaintiff.
4.1.2
That the defendant shall be liable for the monthly mortgage bond
payments in respect of the immovable property until settlement
of
same.
4.1.3
That Plaintiff at her own cost shall effect transfer of the property
into her name upon settlement of the mortgage bond .
. . .’
[6]
However, they remarried on 28 April 2014, this time out of community
of property in terms of an antenuptial contract, with the
exclusion
of the accrual system as contemplated in the
Matrimonial Property Act
88 of 1984
. It is not disputed that they entered into the antenuptial
contract to ensure that Mrs Haynes would retain ownership of the
property,
in keeping with the settlement agreement. Precisely a year
later, on 28 April 2015, they were divorced for a second time. The
Cape
Town Regional Court issued the order dissolving the second
marriage, which included an order that each party would retain their
respective possessions.
[7]
In March 2015 Mr Fischer issued summons against against Ubomi and Mr
Haynes for payment of R566 500, based on an acknowledgement
of
debt by Ubomi, and a suretyship agreement concluded by Mr Haynes for
its indebtedness. It does not appear from the papers when
the debt
was incurred or the suretyship agreement signed. On 4 June 2015 Mr
Fischer obtained judgment against Ubomi and Mr Haynes
for payment of
R566 500. A warrant of execution against Ubomi proved futile
because it had ceased trading. Mr Fischer’s
attempt to execute
against the movable assets of Mr Haynes resulted in the sheriff
issuing a
nulla bona
return.
[8]
The debt remained unpaid and as stated earlier, Mr Fischer applied to
the court a quo for an order declaring Mr Haynes’
half share in
the property executable, since he was still reflected as a co-owner
thereof in the Deeds Registry. In February 2014
the value of the
property was between R830 000 and R870 000. Mrs Haynes
resisted the claim on the ground that she had
acquired full ownership
of the property.
[9]
In her answering affidavit Mrs Haynes stated that Mr Haynes was ‘no
longer the half share owner of the property’.
She alleged that
full individual ownership of the property passed to her when the
divorce order was granted in 2012. In the alternative
she contended
that her personal right to full ownership thereof preceded Mr
Fischer’s claim. It is common cause that her
right to have her
husband’s half share of the property registered in her name
preceded Mr Fisher’s claim.
[10]
In dismissing the application the court a quo considered two
judgments:
Corporate
Liquidators
[1]
and
Middleton.
[2]
In
Corporate
Liquidators
it was held that where parties entered into a settlement agreement
regarding the division of their assets, which is made an order
of
court as contemplated in
s 7(1)
of the
Divorce Act 70 of 1979
,
ownership of immovable property vested immediately. Registration of
transfer of property to a spouse was, therefore, not a prerequisite
for ownership.
[3]
The court in
Middleton,
on the other hand, held that a settlement agreement created only a
personal right for the transfer of ownership and consequently
that
the divorce order did not vest ownership without
traditio
(delivery or transfer).
[4]
[11]
The court a quo followed
Corporate
Liquidators
,
because that judgment, it said, was in large measure based on the
judgment in
Ex
Parte Menzies
,
[5]
and both judgments had been followed in
Salie.
[6]
It concluded that
s 16
of the
Deeds Registries Act 47 of 1937
, which
required ownership of land to be transferred only by means of a deed
of transfer executed by the registrar of deeds, was
expressly
qualified by the words, ‘Save as otherwise provided in this Act
or in any other law’. The
Divorce Act, the
court stated, was
such a law. It thus held that upon the granting of the decree of
divorce, dominium in the property vested with
immediate effect in Mrs
Haynes; and that Mr Haynes retained no right to the property capable
of being declared executable at the
instance of Mr Fischer. This was
the argument by counsel for Mrs Haynes before us.
[12]
The starting point in deciding whether ownership of the property
vests immediately on divorce is
s 16
of the
Deeds Registries Act. It
provides in relevant part:
‘
16 How real
rights shall be transferred
Save as otherwise
provided in this Act or in any other law the ownership of land may be
conveyed from one person to another only
by means of a deed of
transfer executed or attested by the registrar, and other real rights
in land may be conveyed from one person
to another only by means of a
deed of cession attested by a notary public and registered by the
registrar….’
[13]
It is a settled rule of statutory interpretation that when
interpreting legislation, what must be considered is the language
used, the context in which the relevant provision appears and the
apparent purpose to which it is directed.
[7]
[14]
The
Deeds Registries Act, as
appears from its long title, was passed
to consolidate and amend the laws throughout the country relating to
the registration of
deeds. The Act
represents
an attempt to regulate administrative aspects of the registration of
land in an orderly, clear, complete and practical
way, whilst
simultaneously granting landowners substantial protection.
[8]
As stated in
Houtpoort
,
[9]
and affirmed by this court in
Oriental
Products
,
[10]
registration of title is for the purpose of publicity; it is a system
of public access to the land register reflecting owners of
property
and the registration of other protected rights. The public is
entitled to rely on the correctness of entries in the deeds
office,
although the fact of registration is not a guarantee of any right
registered.
[11]
[15]
So, the effect of the registration of transfer of immovable property
is that the owner and the public are protected. First,
it enables the
registered owner of land to prove its right of ownership by
presentation of a registered title deed. This enables
the owner to
enforce this right against anybody. Second, as a result of the
publicity that goes together with ownership, registration
also
provides adequate protection to members of the public wishing to
conclude transactions involving land. The public has access
to the
land register to establish ownership of land and the restrictions to
which it is subject.
[12]
[16]
Section 16
of the
Deeds Registries Act confirms
the principle that
transfer of immovable property must take place before the court of
the place where the land is situated (
traditio
coram judice loci rei sitae
).
This principle ‘still forms the backbone of the current system
of transfer of immovable property in South Africa’.
[13]
Section 16
further provides that other real rights in land may be
conveyed from one person to another only by means of a deed of
cession attested
by a notary public and registered by the registrar
of deeds.
Section 16
is ‘the main mechanism of ensuring
sufficient publicity in the context of land title’.
[14]
[17]
Section 16
of the
Deeds Registries Act thus
provides that as a
general rule, real rights in land can be transferred only by
registration in the deeds office. Its central role
in the
registration system has been described as follows:
[15]
‘
Section 16
of the
Deeds Registries Act constitutes
the core of the registration system,
and embodies a principle of deeds registration, which has been
confirmed on numerous occasions
by the courts. It comprises two
parts. On the one hand, it provides for the derivative acquisition of
ownership in immovable property
by means of execution of a deed of
transport in the presence of the registrar, and attestation of the
deed by the registrar, except
in cases expressly excluded. On the
other hand, it provides that the rights to immovable property other
than ownership may only
be transferred by way of a notarial deed,
registered by the registrar, except in the cases expressly excluded.
Hence,
section 16
of the
Deeds Registries Act deals
with the transfer
of ownership of immovables by one person to another. Simultaneously
it gives effect to the acquisition of ownership
in derivative form.
The moment at which the registrar attests the deed is regarded as the
moment of registration. This is the point
at which the transfer of
ownership from one person to another is given effect. Owners are
substituted: the transferor is relieved
of his or her rights and
responsibilities to the land, and the ownership of that land now lies
with the transferee.’
[18]
Thus, on first principles and a proper construction of
s 16
of the
Deeds Registries Act, deriv
ative acquisition of ownership in land
requires registration.
[16]
Mrs
Haynes’ acquisition of Mr Haynes’ interest in the
property was derivative: it arose from the settlement agreement
which
gave Mrs Haynes a personal right to enforce registration of Mr
Haynes’ undivided half share in the property. That agreement,
though binding on the contracting parties, did not by itself vest
ownership of Mr Haynes’ half share in the property in Mrs
Haynes, any more than a contract of sale of land passes ownership to
the buyer. It follows that
Middleton
was correctly decided.
[17]
The
vesting of ownership of the property in Mrs Haynes required an act of
transfer by way of an endorsement on the title deed of
the property
in terms of
s 45
bis
(1)
(a)
of the
Deeds Registries Act. It
provides:
‘
If immovable
property or a lease under any law relating to land settlement or a
bond is registered in the deeds registry and it
–
(a)
formed
an asset in a joint estate of spouses who have been divorced, and one
of them has lawfully acquired the share of his or her
former spouse
in the property, lease or bond;
(b)
…
the registrar may on
written application by the spouse concerned and accompanied by such
documents as the registrar deems necessary,
endorse on the title
deeds of the property, or on the lease or the bond that such spouse
is entitled to deal with such property,
lease or bond, and thereupon
such spouse shall be entitled to deal therewith as if he or she had
taken formal transfer or cession
into his or her name of the share of
the former spouse or his or her spouse, as the case may be, in the
property, lease or bond.’
[19]
That derivative acquisition of ownership in land requires
registration, has been the position at common law for more than a
century. In
Lucas’
Trustee
[18]
Innes CJ put it this way:
‘
. . . the general
rule of our law is that real rights in land can only be validly
constituted by registration
coram lege loci
. There are well
recognised exceptions to that rule, such as, for instance,
acquisition of ownership to land by prescription, or
of an interest
in land by marriage in community of property, and so on. But none of
those exceptions apply in the present case.
Hence the general rule
governs, and the real right which is sought to be established is, it
appears to me, in the same position
as a right of ownership or right
of mortgage or a claim to some portion of the
dominium
cut off
and separated from it so as to create a servitude. In such cases the
right can only be validly constituted by registration.’
[20]
Further,
s 16
of the
Deeds Registries Act, on
its plain wording,
contemplates the transfer of ownership of land from one person to
another. As this court has said, it is concerned
with the transfer of
real rights in land.
[19]
It
seems to us that in enacting the savings provision, namely, ‘Save
as otherwise provided in this Act or in any other law’,
the
legislature contemplated a law dealing with the transfer of real
rights in land. The
Divorce Act is
not such a law.
Section 7(1)
of
that Act does no more than authorise a court to make an order
regarding the
division
of the assets of the parties: it says nothing about the transfer of
real rights in land. By contrast, endorsements in terms of
ss
45
bis
(1)
(a)
and
45
bis
(1A)
of the
Deeds Registries Act fall
within the savings provision in
s
16.
So too, the transfer of rights in terms of a bond by endorsement,
as provided in
s 40(1)
(b)
of the
Administration of Estates Act 66 of 1965
.
[20]
[21]
This brings us to
Corporate
Liquidators
,
a decision of a full court.
[21]
The facts can be briefly stated. Mr and Mrs Wiggill were married in
community of property. They had two properties: Portion 13
of the
farm Goedehoop (Goedehoop) and Erf 833, Louis Trichardt (Erf 833). In
anticipation of their divorce they concluded a settlement
agreement
in which they agreed that Goedehoop would be sold and the purchase
price used to pay an outstanding mortgage bond over
Erf 833
(registered in Mr Wiggill’s name). Erf 833 would then be
subdivided. Mrs Wiggill would become the registered owner
of the
unencumbered Portion 1 of Erf 833 and Mr Wiggill, of the remaining
extent. A usufruct would be registered over the remaining
extent in
favour of Mrs Wiggill’s parents.
[22]
The marriage was dissolved in March 1998 and the settlement agreement
made an order of court. Goedehoop was sold and the bond
on Erf 833
paid. However, Erf 833 was not subdivided and portion 1 thereof was
not transferred to Mrs Wiggill. In the interim Mr
Wiggill married the
second Mrs Wiggill in community of property. In February 2002 Mrs
Wiggill applied for an order committing Mr
Wiggill for contempt of
court for failure to comply with the court order. She alleged that he
had paid the outstanding amount on
the bond on Erf 833, but had
failed to cancel it in accordance with their agreement, and that he
had borrowed further monies under
cover of the bond. Mrs Wiggill
asked for an order that Erf 833 be subdivided and that portion 1
thereof be transferred to her;
and that the remaining extent be
transferred to the insolvent estate of Mr Wiggill and the second Mrs
Wiggill, whose estate was
surrendered in March 2002. The trustee of
the insolvent estate sold Erf 833 at a public auction free of any
encumbrance.
[23]
However, ownership of Erf 833 had not yet been transferred. It was
still registered in the name of Mr Wiggill. The trustee
argued that
upon dissolution of the marriage Mrs Wiggill obtained only a personal
right against Mr Wiggill to give effect to the
settlement agreement;
and that she had no real right in respect of Erf 833 because Mr
Wiggill’s second joint estate was sequestrated
before transfer
of the property into her name. Likewise, Mrs Wiggill’s parents
only acquired a personal right to have the
real right of usufruct
registered in their favour.
[24]
The court of first instance reasoned that one of the natural
consequences of a marriage in community of property was that both
spouses immediately became co-owners of their previously separate
estates, which became the joint estate, regardless of in whose
name
the assets were held. On dissolution of the marriage the reverse
followed automatically. Therefore, so it held, on divorce
Mrs
Wiggill’s share vested in her and registration of her portion
in her name was a mere formality.
[22]
[25]
Hartzenberg J endorsed this view and stated that the court below was
‘quite correct to equate the process of subdivision
with the
transfer of the properties into the names of the parties’, and
that those steps were mere formalities to give effect
to their
intention.
[23]
The learned
judge said that in a case where parties enter into a settlement
agreement regarding the division of their assets which
is made an
order of court in terms of
s 7
of the
Divorce Act, the
division of
the joint estate would be regulated by that agreement and the parties
would be bound by it. He cited an example of
spouses married in
community of property who owned two fixed properties and agreed that
each would receive one property, and concluded
that ownership of the
respective properties would vest in the parties immediately once the
settlement agreement was made an order
of court. This, Hartzenberg J
said, accords with the common law as expounded in
Rosenberg
.
[24]
Registration of transfer of the properties in the names of the
respective spouses was not a prerequisite for ownership to vest
in
them, since our system of deeds registration was a negative one,
which did not necessarily reflect the true state of affairs.
[25]
The court concluded that Mrs Wiggill was the owner of an unencumbered
Portion 1, and was entitled to the cancellation of the bond
over it
and transfer of the property into her name.
[26]
[26]
The court, however, erred. To begin with, its reliance on
Rosenberg
was misplaced. In that case this court, with reference to
Voet
(23 2 68), held that for the sake of completeness, the registrar of
deeds required a wife, who after her husband’s death
wished to
deal with her half share in land, to first receive transfer. That
practice however did not alter the principle that dominium
of the
land passed by reason of the community of property.
[27]
However, in
Greenberg
[28]
this court held that the position under our modern system of
administering deceased estates was that a legatee does not acquire
dominium of immovable property immediately on the death of the
testator. Instead, the legatee acquires a vested right to claim
delivery of the legacy from the testator’s executor at some
future date. The legatee acquires dominium in the property only
once
it is transferred to him by the executor.
[29]
When community of property is terminated (by death), the survivor is
not on such termination automatically and immediately vested
with
dominium of half of the assets of the joint estate, but merely the
right to claim from the executor half of the net balance
of the joint
estate after winding- up.
[30]
As Van Schalkwyk
[31]
points
out, the common law position set out in
Rosenberg
no longer forms part of our law; and further that
Rosenberg
dealt with the dissolution of marriage by death, not divorce, and
there is no common law authority applying the principle also
in the
case of divorce.
[27]
Fundamentally however, the court in
Corporate
Liquidators
overlooked the common law principles of co-ownership, as well as the
requirement in
s 26
of the
Deeds Registries Act that
co-ownership in
land is only terminated on attestation (registration) of deeds of
partition transfer by the registrar, when ownership
is conveyed to
the respective owners of the land.
[32]
Spouses married in community of property automatically become bound
co-owners of immovable property in their joint estate.
[33]
Upon termination of the joint estate of Mr and Mrs Wiggill on
divorce, the bound co-ownership was replaced by free co-ownership
until such time as the subdivision of Erf 833 was effected. It is
only upon attestation of the deeds of partition transfer by the
registrar that free co-ownership is replaced by individual
ownership.
[34]
At that point
ownership of portion 1 of Erf 833 would have vested in Mrs Wiggill –
a right that could, in the circumstances,
only have been validly
constituted by registration. Thus, Mrs Wiggill obtained only a
personal right to subdivision and transfer
of portion 1 of Erf 833.
The court therefore erred in holding that the subdivision of Erf 833
was a mere formality.
[28]
Moreover, no separate portions of Erf 833 existed in which Mr and Mrs
Wiggill’s individual ownership could vest at the
time that the
joint estate was terminated by divorce.
[35]
So, the court’s finding that Mrs Wiggill was ‘the owner
of an encumbered portion 1’ was also incorrect.
[36]
The term ‘co-ownership’ denotes that two or more persons
own a thing at the same time in undivided shares, ie each
co-owner
has the right to share in the entire thing, but the various shares
need not be equal.
[37]
But two
co-owners cannot have ownership of different parts of an undivided
thing.
[38]
As Van der Merwe
explains:
‘
Since more than
one person cannot simultaneously have full ownership of the same
thing, co-ownership in undivided shares or
communio
pro indiviso
comes into existence between them. Only if the thing which is the
object of co-ownership is indeed divisible and is in fact divided,
does each co-owner acquire absolute ownership of a proportional
separated part of the composite thing.’
[39]
(
Our
translation.)
[29]
For these reasons, and to the extent that it held that dominium of
immovable property vests immediately in a spouse in accordance
with a
settlement agreement that is made an order of court, and that
transfer of such property is not required for dominium to
vest,
Corporate
Liquidators
was wrongly decided.
[40]
It
follows that the court a quo erred by relying on this case in holding
that upon the granting of the divorce order, ownership
of Mr Haynes’
half share in the property vested immediately in Mrs Haynes; and in
its interpretation of
s 16
of the
Deeds Registries Act.
[30
]
But that is not the end of the matter. As already stated, Mrs Haynes
raised an alternative defence that her right to full ownership
of the
property preceded Mr Fischer’s claim. Properly understood, this
was a personal right against Mr Haynes to compel transfer
of his half
share in the property into her name. At the time that Mrs Haynes
acquired this right, there was no other greater or
competing right to
defeat her claim. When Mr Fischer applied for an order declaring the
property executable, Mr Haynes had already
alienated his half share
in the property to Mrs Haynes by way of the settlement agreement.
There is no suggestion that the settlement
agreement or the
antenuptial contract preceding the second marriage was concluded
improperly so as to defeat the rights of creditors.
Indeed, the
undisputed evidence is that the agreement was concluded to ensure
that their children, who were of tender age at the
time, would not be
deprived of their home; and also to give effect to the usufruct in
favour of her father.
[31]
In the result the appeal is dismissed with costs.
____________________
H
K Saldulker
Judge
of Appeal
____________________
A
Schippers
Judge of Appeal
Appearances
For Appellant: R J Steyn
Instructed by:
DSC Attorneys, Cape Town
Rosendorff
and Reitz Barry, Bloemfontein
For Respondent: R Randall
Instructed by:
Z Abdurahman Attorneys,
Cape Town
Maduba Attorneys,
Bloemfontein
[1]
Corporate
Liquidators (Pty) Ltd & another v Wiggill & others
2007 (2) SA 520 (T).
[2]
Middleton
v Middleton
& another
2010 (1) SA 179
(D).
[3]
Corporate
Liquidators
fn 1 paras 15 and 16.
[4]
Middleton
fn 2 paras 10 and 13.
[5]
Ex
Parte Menzies et Uxor
1993 (3) SA 799 (C).
[6]
Salie v
Bales NO & others
[2013] JOL 30580 (WCC).
[7]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[8]
C G Van Der Merwe
Sakereg
2 ed (1989) at 337.
[9]
Houtpoort
Mining & Estate Syndicate Ltd v Jacobs
1904 TS 105
at 108.
[10]
Oriental
Products (Pty) Ltd v Pegma 178 Investments Trading CC & others
[2010]
ZASCA 166
;
2011 (2) SA 508
(SCA) paras 12 and 28.
[11]
Oriental
Products
fn
11 para 28.
[12]
Sakereg
fn 9
at 340;
Frye’s
(Pty) Ltd v Ries
1957 (3) SA 575
(A) at 582.
[13]
P J Badenhorst et al
Silberberg
and Schoeman’s: The Law of Property
5 ed (2006) at 205 para 10.3.
[14]
Ibid
at
206.
[15]
Badenhorst fn 14 at 225 (footnotes omitted).
[16]
Badenhorst fn 14 at 236.
[17]
Middleton
fn 2 paras 10-11 and 13; N van Schalkwyk ‘Aantekeninge:
Huwelik binne gemeenskap van goed: Die effek van ‘n
egskeidingsbevel
op ‘n bateverdelingsooreenkoms’
LitNet
Akademies Jaargang
9(3) (2012) at175.
[18]
Lucas’
Trustee v Ismail and Amod
1905 TS 239
at 242, affirmed in
Lief
NO v Dettman
1964 (2) SA 252
(A) at 269.
[19]
Bowker
v Registrar of Deeds
1939 AD 401
at 407.
[20]
See Badenhorst fn 14 at 205 and the authorities cited in footnote
53.
[21]
Corporate
Liquidators
fn 1 per Hartzenberg and Mavundla JJ and Ranchod AJ.
[22]
Corporate
Liquidators
fn 1 para 17.
[23]
Corporate
Liquidators
fn 1 para 17.
[24]
Rosenberg
v Dry’s Executors & others
1911 AD 679
at 688.
[25]
Corporate
Liquidators
fn 1 paras 15 and 16.
[26]
Corporate Liquidators fn 1 para 20.
[27]
Rosenberg
fn 25 at 688.
[28]
Greenberg
& others v Estate Greenberg
1955 (3) SA 361
(A) at 364G-H.
[29]
See Van Der Merwe fn 9 at 299.
[30]
H R Hahlo
The
South African Law of Husband and Wife
5 ed (1985) at 174-175;
Costain
& Partners v Godden NO & another
1960 (4) SA 456
(SR) 456 at 461E-F.
[31]
Van Schalkwyk fn 18 at 172 para 2.3.
[32]
Section 26(1)
the
Deeds Registries Act provides
in relevant part:
‘
If two or more
persons who own in undivided shares the whole of any piece . . . of
land, have agreed to partition that land, the
registrar shall, on
production to him of a power of attorney by such persons authorising
the passing of deeds of partition transfer
of such land in
accordance with the agreement of partition . . . attest deeds of
partition transfer . . . conveying to the respective
owners the land
or shares therein awarded to them under the said agreement.’
[33]
Footnote 14 at 133; Van der Merwe fn 9 at 378-379;
De
Wet NO v Jurgens
1970 (3) SA 38
(A) at 46D.
[34]
P Bakker ‘Nature of Ownership in Immovable Property of the
Joint Estate on Divorce. Corporate Liquidators (Pty) Ltd v Wiggill
[2006] 4 All SA 439
(T)’
(2007) 70
THRHR
515
at 520. Romeins-Hollandse Reg, 70(3): 520 para 3.3; Van
Schalkwyk fn 18 at 173 para 2.5.
[35]
Bakker fn 35 at 520 para 3.4.
[36]
Corporate
Liquidators
fn 1 para 20.
[37]
Badenhorst fn 14 at 133.
[38]
Van der Merwe fn 9 at 378; Bakker fn 28 at 520 para 3.4.
[39]
Van der Merwe fn 9 at 380, the passage reads:
‘
Omdat meer as een
persoon nie terselfdertyd volle eiendomsreg oor dieselfde saak kan
hê nie, kom mede-eiendom in onverdeelde
aandele, of
communio
pro indiviso
tussen hulle tot stand. Slegs indien die voorwerp
van mede-eindom wel deelbaar is en inderdaad verdeel word, verkry
elke mede-eienaar
absolute eiendom oor ‘n proporsionele
afgeskeide deel van die saamgestelde saak . . . .’
[40]
The court’s finding in paragraph 22 of the judgment that the
second and third respondents had merely personal claims against
the
insolvent estate for the value of the usufruct, was correct.