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[2014] ZAGPPHC 312
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Baloyi v Baloyi (43844/2008) [2014] ZAGPPHC 312 (3 June 2014)
NORTH GAUTENG
HIGH COURT PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
Case
no: 43844/2008
DATE:
03 JUNE 2014
In the matter
between:
PAPIE SYDNEY
BALOYI
....................................................................................
APPLICANT
AND
MATHANE REBECCA
BALOYI
.................................................................
RESPONDENT
Coram: Baqwa J
Heard: 3 June
2014
Delivered: 3 June
2014
JUDGMENT
BAQWA J
Flynote:
Actio
communi dividundo-co-ownership rights.
Summary:
This
is an application to enforce the terms of a divorce order which
included a deed of settlement
Annotation
Case law
Runciman v
Schultz
1923 TPD 45
Badenhorstv Marks
1911 TPD 147
Robson v Theron
1978(1) SA 841 A at 855 A-B
Ntuli v Ntuli,
1946 T.P.D. 181
at p.184, per Barry, J.P.
[1] This is an
application for an order declaring the co-ownership between the
parties of the immovable property known as 670 Block
L Soshanguve,
Gauteng (the immovable property) be terminated on certain terms and
conditions and that a receiver be appointed to
realise the immovable
property and sell it at a market related price and that the proceeds
arising from the sale of the immovable
property be utilized to pay
the outstanding amount in terms of the mortgage bond registered over
the immovable property together
with related expenses.
Applicant seeks
further that the remaining balance be divided equally between the
parties
[2] The parties were
previously married to each other in community of property. Their
marriage was dissolved by a decree of divorce
issued on 24 May 2010
and a written settlement agreement was incorporated in the decree of
divorce.
[3] At the time of
divorce and as per their marriage in community of property, the
parties we co-owners of the immovable property.
[4] The parties
agreed about the manner of division of the joint estate and the
manner in which co-ownership of the immovable property
was to be
terminated. The terms were recorded in the settlement agreement. In
the interim, respondent has resided in the immovable
property.
[5] The parties have
attempted to implement the terms of the agreement regarding
termination of the co-ownership but up to the time
of launching of
this application they have been unsuccessful.
[6] The law
6.1. Joint ownership
is the ownership which two or more persons have simultaneously in the
same piece of property each having an
undivided share in it. In the
exercise of their rights, each joint owner may use, enjoy and
alienate his/her share of the property.
All profits accruing
to the property must be divided proportionately among the joint
owners.
Runciman v Schultz
1923 TPD 45
6.2. A joint owner
may claim a division of the common property at anytime, whether or
not his co-owners are agreeable.
Badenhorst v Marks
1911 TPD 147
6.3. The claim of a
co-owner to have co-ownership is in accordance and by virtue of the
actio communi dividundo and a party claiming
termination of
co-ownership has to prove the existence of the joint ownership.
Secondly, he must prove a refusal by the other party
to agree to the
termination of the joint ownership, an inability to agree the method
of termination or an agreement to terminate
but a refusal or
inability to comply with the terms of the agreement. Thirdly an
applicant must allege or prove the facts upon
which the court can
exercise its discretion as to how to terminate the joint ownership.
[7] Respondent has
filed an opposing affidavit in which she raises mainly two grounds of
opposition. The first is the failure by
the applicant to file the
curriculum vitae and a consent by the proposed receiver RP Jordan.
Applicant has filed a replying affidavit
to which he annexes a
‘consent to appointment as liquidator and receiver’ by P
Jordan together with his abridged curriculum
vitae.
[8] Further,
respondent denies the cancellation of the purported agreement of sale
between herself and the applicant on the one
hand and R.P Baloyi and
Ms R Mabusela (purchasers) on the other. In response, applicant has
referred to correspondence dated 28
October 2013 in which the
purchasers are notified of the agreement due to their failure to pay
the amounts of R500.000 and R24.000
as per agreement. Respondent does
not allege that the purpoted agreement dated 26 February 2013 was
honoured by R.P Baloyi and
Ms Mabusela yet the purchase price of
R500,000 was due to be paid on 31 August 2013 in terms of the
purported agreement of sale.
[9] In the matter of
Robson v Theron 1978(1) SA 841 A at 855 A-B Joubert JA pronounced as
follows:
"The basic
notion underlying the actio communi dividundo is that no co- owner is
normally obliged to remain such against his
will. Van Leeu-wen ,
Centura Forensis, 1.4.27.1. Accordingly when co-owners are desirous
of having their joint property divided
and the share of each allotted
to them in severalty, they may agree to this division among
themselves without having recourse to
judicial proceedings.
‘Where there
are co-owners who have agreed to divide then the only relief that one
can claim from the other is an action for
specific performance in
terms of that agreement. Secondly, if there is a refusal on the part
of one of the co-owners to divide
then the other co-owner can go to
Court and ask the Court to order the other to partition. Again, if
the parties agree that there
is to be a partition but the parties
cannot agree as to the method or mode of partition, the Court is
asked to settle the mode
in which the property is to be divided”
(Ntuli v Ntuli,
1946
T.P.D. 181
at p.184, per Barry, J.P.)”
[10] In casu, the
parties have failed to implement the terms of their settlement
agreement and applicant has come to this court
to ask for a
settlement of the mode of which the property is to be divided.
[11] It is common
cause that the immovable property belongs to both parties. The
divorce was finalised on 24 May 2010. It is common
cause further that
the parties have been living apart since 2008, some five years ago.
The one party has during that period enjoyed
occupation of the
immovable property while applicant has had to look for alternative
accommodation. This situation is not equitable
as respondent does not
proposes more rights than the applicant.
[12] Counsel for
applicant has asked for costs to be paid by the respondent whilst
respondent’s counsel argues to the contrary.
If applicant had
merely applied for the division of the joint estate and the
respondent opposed, I would not have hesitated in
awarding costs
against her.
The applicant has
made certain allegations of respondent having made profit by renting
the property out. Respondent denies these
allegations and the only
way she could bring her side of the story was by filing opposing
papers. Moreover one has to bear in mind
that respondent may very
well have expenses to claim for preserving the property over the
years. In any event these are matters
to be addressed and resolved by
the liquidator.
In my view, costs
must be paid out of the proceeds of sale of the property.
[13] In the result,
the following order is made:
13.1. Having read
the papers, having listened to counsel and having considered the
matter, I am satisfied that applicant has made
out a case for the
relief sought and an order is granted in terms of prayers 1,2,,4, and
5 of the Notice of Motion.
13.2. Costs to be
paid out of the proceeds of the sale of the immovable property.
S.A.M BAQWA
(JUDGE OF THE
HIGH COURT)
Counsel for the
Applicant: Adv M.L Haskins SC
Instructed
by: Shapiro and Ledwaba INC
Counsel for the
respondent:
Instructed
by: Ehlers Fakude INC