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[2014] ZAGPPHC 264
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J N.O. v M N.O. (27314/13) [2014] ZAGPPHC 264 (12 February 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(REPUBLIC OF
SOUTH AFRICA)
PRETORIA
CASE NO: 2731413
In the matter
between:
P[...]
J[...] J[...] V[...] R[...]
N.O
...............................................................................................
APPLICANT
And
A[...]
M[...]
N.O
..........................................................................................................
FIRST
RESPONDENT
NEDBANK
LIMITED
.........................................................................................
SECOND
RESPONDENT
THE
REGISTRAR OF DEEDS JOHANNESBURG
….....................................
THIRD
RESPONDENT
THE
SHERIFF, GERMISTON
SOUTH
.........................................................
FOURTH
RESPONDENT
ANTON
PIETER
VENTER
..................................................................................
FIFTH
RESPONDENT
JUDGMENT
WISIMEKI
J:
[1] The Applicant,
in this application, seeks a declaratory order in terms of which:
“
1.
It is declared that the Applicant is entitled to, and authorised to
take whatever steps are necessary to be taken in order to
effect and
procure a transfer of the immovable property better known as Erf […],
T[...], E[...] M[...] M[...], Registration
Division JR Gauteng, and
held by title deed T[...] and in extent 952.00m
2
to the fifth Respondent;
2 it is hereby
declared that the necessary authority is granted tor the
implementation of the sale concluded between the Applicant
and the
fifth Respondent, in respect of the immovable property mentioned in
prayer 1 above, in accordance with the terms and conditions
of the
agreement which is attached to tfie founding affidavit as snnexure
“E”;
3. The First
Respondent is ordered to sign whatever documents are necessary to be
signed in order to procure a transfer of the immovable
property to
the Fifth Respondent on the terms and conditions of the agreement,
attached to the founding affidavit as annexure "E”;
4. In the
alternative to prayer 3 above the Fourth Respondent is hereby
authorised and directed to sign whatever documents are necessary
to
be signed in order to effect a transfer of the immovable property
mentioned in prayer 1 above, to the Fifth Respondent;
5. No costs orders
or any other substantia] relief is sought against the Second, Third,
Fourth and Fifth Respondents, unless these
Respondents oppose this
application without success;
6. No costs order is
sought against the First Respondent, unless the First Respondent
opposes this application without success;
7. Further and/or
alternative relief”.
BRIEF FACTS
[3]
The Applicant is the executor in the deceased estate of B[...] M[...]
(the deceased) while the First Respondent is the executrix
in the
deceased estate of S[...] M[...] (the joint owner). The deceased and
the joint owner were married to each other'in community
of property.
The deceased passecl away on 28 March 2009 while the joint owner
passed on on 24 May 2009. The two are survived by
two minor children
N[...] A[...] M[...] and M[...] M[...] and A[...] M[...] a
grandchild. The deceased and the joint owner, during
their lifetime,
purchased an immovable property being Erf [...], T[...], E[...]
M[...] M[...], Registration Division JR Gauteng,
and held by title
deed T[...] measuring 952.00m
1
(the property).
It was discovered
that both estates shared the same number at the Master’s
office. In the meantime, and on 11 November 2011,
Anton Pieter
Venter, the Fifth Respondent, purchased the property at a public
auction for the amount of R350 000.00. The property
is bonded to
Nedbank which took judgment against the joint estate. Nedbank as at
30 July 2013 was owed R737 803.10 as evidenced
by a certificate of
balance annexure “N” to the Replying Affidavit appearing
on page 131 of the paginated papers.
As correctly pointed
out the amount due owing and payable to Nedbank must by now be more
than the disclosed amount. The Applicant
wants to transfer the
property to the Fifth Respondent in order to finalise the estate of
the deceased. The First Respondent does
not agree contending that the
property is worth much more than R350 000.00. The deadlock between
the Applicant and the First Respondent
has resulted in this
application.
THE ISSUE
[4] The issue to be
determined is whether the Applicant has made out a case for the
relief that he seeks.
[5]
In a nutshell the Applicant seeks to compel the First Respondent to
co-operate in the selling of the property which belongs
to the joint
estate. Mr Jacob’s contention that the Applicant sold the
undivided share of the deceased cannot be correct
as that is not what
was communicated to the Fifth Respondent when the property was sold.
As Mr Erasmus correctly submitted, it
can hardly be imagined that a
person can buy part of the property without knowing who will buy the
remaining part. Sharing the
property in this way would be courting
disaster. The parties are now ad
idem
that
the property must be sold as a unit.
PRINCIPLES
[6]
1. No co-owner is normally obliged to remain a co-owner against his
will. As a general rule a co-owner is entitled to have co-ownership
terminated by invoking
actio-communi
dividundo.
(Robson v
Theron
1978 (1)
SA
841
SA 841 (A)).
2.Courts come to the
rescue of parties who are co-owners and who for one reason or the
other are unable to agree on the method of
termination; where one
party refuses to terminate the joint ownership or where the two agree
to terminate but the other refuses
to comply with the terms of the
agreement.
3.
Courts, however, assist where there is joint ownership and proper
facts have been placed before them. The courts follow methods
which
are fair and equitable to the parties.
(Harms:
Amler’s Precedent of pleadings, Seventh Edition, at 245)
[7] The First
Respondent contends that the property is worth R550 000.00 and that
the amount ought to be the purchase price of the
property. The First
Respondent produced Ekurhuleni Metropolitan Municipality valuation
annexure “B” to the opposing
affidavit reflecting the
market value of the property as at 21 August 2009 as R684 000.00.
Another valuation certificate annexure
“C” to the
opposing affidavit shows the market value of the property as R570
000.00. The First Respondent’s agent
in light of the valuation
certificates made an offer to the Fifth Respondent requiring him to
pay R550 000.00 for the property.
(Annexure “D” to the
opposing affidavit). The offer, of course, was not acceptable to the
Fifth Respondent. It is noteworthy
that Mr Jacobs conceded that the
Respondent’s valuation certificates of the property were all
not sworn to. They, therefore,
cannot be considered.
[8] The Applicant
duly presented evidence to show that the property has been vandalised
and the damages require a substantial amount
to restore it to its
original condition. This was not seriously contested by Mr Jacobs.
The value of the property with the damages
leaves the property with
no equity at all. The photographs which form annexure “L”
to the Replying Affidavit confirm
the condition of the property.
[9] The Fifth
Respondent has shown tremendous interest in the property in its
condition. It appears he has even effected some serious
improvements
and that he has taken occupation.
[10]
Mr Jacobs, in his contentions, relied on possibilities,
inter
alia,
that
the property could fetch R550 000.00 if it were to be sold properly.
This contention obviously does not seem to have regard
to the
condition of the property. It is vandalised. Going along with the
contention would amount to speculation. We also do not
deal with
possibilities but probabilities in civil matters.
[11] What is known
is that the Fifth Respondent wants to carry on with the deal. These
are naked facts. Mr Erasmus submitted that
the market value of the
property as at 25 January 2012 was R400 000.00. The report which is
annexure “G” to the founding
affidavit shows that the
property is in bad shape. The Applicant’s evidence is that a
forced sale, as at 25 January 2012
would have been approximately R320
000.00. This appears reasonable. It must be remembered that this
valuation is the most recent
valuation. The First Respondent appears
to have no money to enable her to obtain a proper valuation
certificate. Indeed, the estate
appears to consist only of the
property. The estate is in fact insolvent.
[12] Nedbank,
the major creditor, is claiming R737 803.10 from the joint estate.
Whether the property is sold
for R550 000.00 or R624 000.00 Nedbank’s
debt is not covered. The Applicant has produced evidence to show that
Nedbank has
agreed to reduce the debt should the current deal go
through. Indeed, Nedbank as evidenced by annexure “D” to
the Founding
Affidavit, in that event, would only expect to be paid
R312 359.94 instead of the actual debt. Nedbank, being in business,
expects
to get its money as soon as possible. The longer it takes for
it to get the money, the more prejudiced the bank becomes.
[13] There is a done
deal should the Fifth Respondent’s deal go through. This
indeed, is a case of a bird in hand being more
valuable than those in
the bush. It will be unreasonable to expect Nedbank to wait for
something that may not even materialise.
[14]
The evidence as a whole reveal that it would be proper and prudent to
allow the application to go through because that would
result in the
fair and equitable balancing of the interests of the parties. The
amount of R350 000.00 more or less is in line with
the market value
which
in Ex Parte
Mattysen EH Uxor (First Rand Bank Ltd inten/ening),2003*(2) SA 309
(TPD) at 315 )(C)
was
said to be “tKe probable price that a willing, well informed
buyer would pay a willing well informed seller in a normal
open
market transaction at the date of valuation, when neither party is
under any anxiety or compulsion to sell or buy, other than
the normal
desire to transact’’.
[15] Having regard
to the facts of this matter, in my view, the application should
succeed.
[16] Mr Erasmus, at
the end of his submissions, provided the court with a draft order
which, if the court agrees with, ought to
be made an order of the
court. I have duly perused the draft order and I am in full agreement
therewith.
ORDER
[17] In the result,
the draft order which I have marked “X”, signed and dated
and hereto annexed is, accordingly, made
an order of the court.
M.W
MSIMEKI
JUDGE
OF THE NORTH
GAUTENG
HIGH COURT, PRETORIA
COUNSEL FOR THE
APPLICANT: Adv. F. Erasmus
INSTRUCTED BY: Van
Rensburg Inc.
COUNSEL FOR THE
RESPONDENT: Adv. Jacobs
INSTRUCTED BY DATE
OF HEARING: 05 FEBRUARY 2014
DATE OF JUDGMENT: 12
FEBRUARY 2014
IN THE HIGH
COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
BEFORE.THE
HONOURABLE JUSTICE MSIMEKI J ON 5 FEBRUARY 2014
CASE NO:
27314/2013
In the matter
between:
P
J J[...] V[...] R[...] N.O.
….............................................................................................
Applicant
and
A[...]
M[...] N.O.
…..................................................................................................
First
Respondent
NEDBANK
LIMITED
….................................................................................
Second
Respondent
THE
REGISTRAR OF DEEDS, JOHANNESBURG
….................................
Third
Respondent
THE
SHERIFF GERMISTON
SOUTH
...........................................................
Fourth
Respondent
ANTON
PIETER VENTER
…............................................................................
Fifth
Respondent
DRAFT ORDER
HAVING
HEARD COUNSEL
for
the Applicant and First Respondent the following order is granted:
1.
It is declared that Applicant is entitled to and authorised to take
whatever steps are necessary in order to effect and procure
a
transfer of the immovable property better known as Erf [...], T[...],
E[...] M[...] M[...], Registration Division J.R. Gauteng
and held by
Title Deed
T[...]
and
in extent
952m
2
to
Fifth Respondent;
2. It is hereby
declared/that the necessary authority is granted for the
implementation of- the sale concluded between Applicant
and Fifth
Respondent, in respect of the immovable property mentioned in
paragraph 1 above, in accordance with the tprms and conditions
of the
agreement which is attached to the Founding Affidavit as Annexure
“
E”.
3. Fourth Respondent
is hereby authorised and directed to sign whatever documents are
necessary to be signed in order to effect
a transfer of the immovable
property mentioned in paragraph 1 above, to Fifth Respondent.
4. First Respondent
is ordered to pay the costs of the application.
BY ORDER OF THE
COURT REGISTRAR
1
Advocate F Erasmus,
on behalf of the Applicant, and Advocate T.L Jacobs, on
behalf of the First
Respondent, argued the matter.