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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.: 20081/2023
In the matter between:
P[…] N[…] Applicant
and
A[…] N[…] E[…] Respondent
Date of hearing: 11 September 2024
JUDGMENT DELIVERED ON 16 SEPTEMBER 2024
____________________________________________________________________
GORDON-TURNER, AJ:
Introduction
1. This opposed application concerns the termination of the parties’ co -
ownership of an immovable property in Sunningdale, Western Cape (the
Sunningdale property), and ancillary relief , all claimed under the actio
communi dividundo.
2. The actio communi dividundo is an action for the division of property held in
common, and for profits and personal items of payment in respect of the
property ( praestationes pe rsonales) to be made good between the joint
owners.1
3. The applicant has pleaded and proved the necessary elements for that cause
of action, namely co-ownership of the property with the respondent, that he no
longer wishes to be co -owner, that the property, which is a residential home ,
cannot readily be partitioned , and that the parties have not agreed upon the
mode of division of the property.2
4. The question that require s resolution is the manner and timing of termination
of the parties’ co -ownership taking account of their relationship as a married
couple. The applicant prays that the Sunningdale property be sold on the
open market, and that the net proceeds of the sale be divided between the
parties subject to each being recompensed for what they have spent on the
property on what he contends to be an equitable basis. The respondent
contends that the fate of the Sunningdale property is inextricably intertwined
with the is sues in the parties’ pending divorce action and resists the relief
sought.
Background
5. The parties were married to each other in 2018 , out of community of property
with the inclusion of the accrual regime in terms of Chapter 1 of the
Matrimonial Property Act, 88 of 1984 ( MPA). No children are born of their
marriage.
6. Their antenuptial contract provide s that for the purposes of section 6 o f the
1 Robson v Theron 1978 (1) SA 841 (A) at 845 H
2 Robson v Theron supra at 856H – 857D.
MPA, the nett values of the respective estates of the parties at the
commencement of the intended marriage were Nil. The antenuptial contract
further provided that three immovable properties in Midrand owned by the
applicant, and all liabilities ass ociated therewith, or any other asset acquired
by him by virtue of his possession or former possession of such properties
shall not be taken into account as part of his estate at either the
commencement or the dissolution of the marriage. No assets of the
respondent were excluded.
7. On 20 February 2022, the parties, as purchaser, executed an agreement of
sale to purchase the Sunningdale property at a price of R3 715 000.00. The
purchase price was paid by way of a deposit of R200 000.00 and the balance
was to be financed by a loan from a bank in the amount of R3 515 000.00
secured by the registration of a mortgage bond. Both parties signed a home
loan application with Standard Bank on 28 March 2022, each reflecting their
residential address at a flat in Blouberg. The applicant’s application form was
headed “main applicant”, and set out that he was employed, that his employer
is Standard Bank, that his total monthly income is R96 726.00, that his
declared monthly expenses were R63 653.00 and the amount available for
repayments was R33 073.00 per month. The respondent’s application form
was headed “co-applicant or surety ”, and her employment status was stated
as “unknown”. Her declared total monthly income is stated to be R200.00, and
the amount available for repayments as R130.00 per month. The applicant
contended in his replyin g affidavit that the respondent’s income at the time
exceeded R200 monthly , and still so exceeds it , but no further details were
provided.
8. Standard Bank granted t he home loan. It is common cause that the applicant
paid the deposit of R200 000.00 , the transfer duty and the transferring
attorney’s fees in the total amount of R281 923.78, and that t he respondent
paid the costs of registering the bond over the property in the amount of
R32 362.
9. Registration of transfer of the Sunningdale property into the names of the
parties in equal half-shares, and registration of the mortgage bond in favour of
Standard Bank, took place on 9 June 2022.
10. The parties took occupation of the Sunningdale property as their marital
home.
11. The applicant has paid the monthly mortgage bond instalments of R32 362.00
per month from inception to date. The respondent has paid the rates, taxes
and municipal charges in relation to the property, which are an average of
R2 800.00 per month.
12. Problems arose in the marital relati onship. The parties applied for protection
orders against each other. The applicant instituted divorce proceedings.
13. Although at the time this application was instituted, only a notice of intention to
defend had been filed by the respondent, I was advised from the Bar by both
parties’ legal representatives that the pleadings have now closed, and that in
the case management process the divorce action ha s been declared trial
ready.
14. The respondent attached a copy of the applicant’s particulars of claim to her
answering affidavit. The applicant, as plaintiff in the divorce action, alleges the
following:
“6. The Plaintiff avers that the declared nett value of his estate at
the commencement of the marriage contained in the Antenuptial
Contract was incorrect and that such nett value was no less than
R1 901 645.00 ( One Million Nine Hundred and One Thousand
and Six Hundred and Forty-Five Rand) as at the date of the
conclusion of the Antenuptial Contract and/or the marriage.
7. The Plaintiff’s aforementioned nett value of his estate of
R1 901 645.00 comprised of the following:
7.1 BMW 135i motor vehicle R 180 000.00
7.2 Standard Bank pension R1 356 265.00
7.3 Old Mutual Retirement Annuity R 228 590.00
7.4 Standard bank shares R 136 790.00
8. The Plaintiff accordingly avers that any accrual calculation in
terms of section 4 of the MPA must be based on the fact that the
nett value of the Plaintiff’s estate as recorded in the Antenuptial
Contract and/or at the commencement of the ma rriage was and
ought to have been no less than R1 901 645.00, and the Plaintiff
intends leading evidence to rebut that prima facie value of R0
(Nil) contained in the Antenuptial Contract, as per section 7(3) of
the MPA.”
15. On 28 September 2023, the applicant ’s legal representative addressed
correspondence to the respondent’s (then) attorney asserting that the
applicant does not wish to remain a joint owner of the Sunningdale property,
and that it had to be sold on the open market for a fair market value and the
proceeds divided in equal shares. In the alternative, the respondent was
invited to purchase the applicant’s undivided half -share therein for a market -
related price. It was recorded that the applicant cannot afford to pay the
mortgage bond of the Sunningdale property, as we ll as rental for the
accommodation into which he intended moving at the end of that month.
16. The letter on behalf of the applicant further stated:
“3.5 We propose that should your client agree to finalising and
settling the divorce with or without the appointment of a receiver,
a settlement of [the Sunningdale property] forms part of the
divorce decree. However, we record that it is a separate issue
as there is no joint estate and, therefore, does not form part of
the divorce litigation.”
17. The applicant thereby asserted the position contained in his founding papers
that the termination of the parties’ co -ownership of the Sunningdale property
is a distinct issue from the determination of the accrual payment that may be
due to one or the other pursuant to their antenuptial contract. However, he
recognises that the manner and mode of terminating the ownership , if agreed,
would be part of the settlement agreement incorporated in the decree of
divorce. He pointed out that the only issue that needed to be resolved is that
of the accrual and proposed that the parties declare the respective values of
their estates and endeavour to arrive at a settlement agreement, and failing
agreement on the accrual payment to be made, he proposed that a receiver
be appointed by the Court to deal with the issue of the accrual “ inclusive of
the actual nett commencement value of our client ”. The respondent was
invited to revert in 30 days, failing which, the Court would be approached to
adjudicate the matter.
18. The letter was not answered within thirty days, so the applicant contends that
the offer to permit the respondent to purchase his half share of the property ,
not having been accepted, falls away.
19. On 1 October 2023, the applicant permanently and voluntarily vacated the
Sunningdale property, and moved to his current rented accommodation in
Milnerton. The respondent and her teenage son continued to reside in the
Sunningdale property.
20. The applicant prays for the co -ownership of the property to be te rminated and
for an order that the property be offered for sale on the open market either by
private treaty or by public auction. He requires that initial sums that he and the
respondent paid towards the property, described above, be paid back to them
respectively and that after deducting expenses, the proceeds of the sale of
the property be divided in equal shares.
21. He alleges that since June 2022 the 17 monthly bond repayments he has paid
amount to approximately R544 000. He does not, however, seek to recover
from the respondent her half share of the bond repayments , for which she
was and is liable as the co-mortgagor of the Sunningdale property.
22. The applicant is aggrieved that he no longer enjoys the use of the property,
yet the respondent does, while he continues to pay the bond and insurance
costs. He alleges that he cannot afford to pay the mortgage bond payments
as well as his current rental which he disclosed, only in reply, as the amount
of R16 500.00 per month. This unaffordability, so he averred, renders the
termination of the co-ownership as urgent. He provided no detail of his means
to support his contention that the bond payments are not affordable to him.
23. The application was not set down by the applicant as an urgent matter.
Instead, the applicant’s legal representative made a successful approach to
the Acting Judge President for an expedited hearing for this application.
24. In opposing the application, the respondent avers that she and the applicant
are still married and the reciprocal duty to maintain each other subsists. The
applicant had not tendered to provide her with alternative accommodation to
that enjoyed in the Sunningdale property either by way of providing suitable
rental accommodation at his cost or by offering a monthly amount for payment
of rental accommodation . She contends that t he present application was a
reaction by the applicant to his failed attempt to obtain an interim protection
order interdicting the respon dent and her son from remaining in the
Sunningdale property . She explained that t he respondent had always
assumed responsibility to provide accommodation for her and her son and
was aware from the time of the purchase of the Sunningdale property that she
unable to contribute towards the monthly bond instalments.
25. The respondent further contends that i n the event that the applicant’s claim in
the divorce action to rectify the nett commencement value of his estate fails,
then the respondent will be entitled t o share in the accrual in his estate which
may enable her to purchase the applicant’s undivided half -share of the
Sunningdale property. (This statement was understood to mean that in those
circumstances there would be amount susceptible of accrual sharing). In his
replying affidavit, in which the applicant took the opportunity to make unhelpful
vituperative remarks about the respondent, he did not dispute th e
respondent’s contentio n that her accrual claim could be a means for her to
acquire his half share.
26. The property and its value together with the course of its future ownership, so
the respondent submits, form part of the patrimonial disputes in the divorce
action, which in turn will be relevant when determining whether she is entitled
to personal maintenance . She has been advised that the disputes in the
divorce action cannot be resolved by way of separate and contemporaneous
motion proceedings.
27. The respondent took issue with the applicant’s alleged inability to pay the
monthly bond instalments and with his justification , based thereon, for an
urgent hearing. The respondent attached to her answering affidavit the
applications for bond finance which are referred to above. She averred that in
addition to his monthly salary which she believes to have increased since 28
March 2022, the applicant receives annual bonuses and she believes that he
also receives incentive bonuses which were not included in the disclosure of
his income in the loan application form. She further stated that he owns
Standard Bank shares from which he potentially receives annual dividends.
28. The respondent alleges that when the parties acquired the property “ it was
never agreed that at the termination of our co-ownership, that the proceeds
from the sale of the property should be dealt with in accordance with the
principles of a partnership.”
29. In reply , concerning his disclosures on the loan application, his salary
increases since March 2022 , and his additional sources of income from
bonuses, incentive bonuses and dividends, the applicant did not dispute these
allegations but contended that they are irrelevant and would be dealt with at a
pending Rule 43 application brought by the respondent.
30. The respondent referred to the applicant’s three properties that are listed in
the antenuptial contract as excluded assets. Two are still owned by him, and
she contended that he earns income from them. In respect of one, the
applicant contended in reply t hat it belongs to his ex -wife and “ we
unfortunately have not gotten around to transferring the ownership. She lives
therein and pays the bond on the property ”. In respect of the other, he denied
receiving income from it as his parents reside therein, but did not dispute that
its value is approximately R2 030 000.00. He admitted that the third property
had been sold during 2020 for the amount of R4 million. He averred that the
proceeds were used to settle part of the bond on the property now occupied
by his parents. As that property was purchased in 2007 for the amount of R1
290 000.00, his explanation only accounts for a fraction of the R4 million
proceeds. He did not deny that the balance is available for investment to earn
interest or dividends on shares , nor did he explain how it is now invested . He
simply retorted that this capital amount is not relevant to the present
application.
31. The applicant is employed as a finance manager at Standard Bank. He
contends that the respondent’s income exceeds his income. It is neither
necessary nor possible to resolve that issue in this application. However, it is
clear that she has a dependent son living with her, that she presently receives
no interim ma intenance from the applicant, and that, on the evidence
available, the applicant’s capital resources appear to considerably exceed
hers.
32. Both parties referred to the respondent’s intention to apply in terms of Rule 43
for interim maintenance to be pa id by the applicant. It was apparent from the
submissions made on their behalf that by the time of hearing this application,
the Rule 43 application had been launched, but not yet determined.
Discussion
33. As the party who took responsibility for making the monthly bond repayments,
the applicant might have insisted on the Sunningdale property being
registered solely in his name. Instead, he and the respondent purchased the
property jointly and caused equal undivided share s to be registered in both
names.
34. It is common cause that there is a significant disparity between the respective
contributions made by the parties to the expenses related to the Sunningdale
property.
35. This is not unusual in a marriage where the property in question serves as the
marital home. While it is not clear from the papers whether the applicant has
been the major breadwinner throughout the marriage , the fact that he
assumed responsibility for the cost of the couple’s accommodati on is a
compelling indicator that he may well have been , and that he took on this
responsibility as a discharge (or partial discharge) of the reciprocal duty of
support between spouses owed to the respondent . That he does not seek
recovery of the bond instalments (i.e. of the respondent’s half share therein)
fortifies this indication.
36. These circumstances differentiate the co -ownership of the Sunningdale
property from a situation in which the parties, during their marriage, may have
acquired and held co-owned properties as investments or for a commercial
purpose.
37. It raises the question whether the co -owners are entitled, as of right, to
terminate their co-ownership by way of the actio communi dividundo.
38. The availability of the action received detailed attention in the judgment of
Wallis JA in Municipal Employees Pension Fund and Others v Chrisal
Investments (Pty) Ltd3.
38.1. Wallis JA’s judgment sets out examples that may create co -ownership
of property 4 and that co -ownership may be either free or bound co -
ownership, explaining that “in bound co-ownership the existence of the
co-ownership arises from a legal relationship between the parties other
than the co-ownership itself. In other words, there is a legal relationship
3 2022 (1) SA 137 (SCA)
4 At paragraph [19]
between them going above and beyond the fact that they happen to be
the co -owners of property. The co -ownership arises from and is
constituted as a consequence of that relationship. It is not the source of
the relationship between the parties”5.
38.2. Wallis JA listed examples of extrinsic legal relationships that give rise
to bound co-ownership6: “It may arise as a matter of law from the fact
that the parties have entered into a particular relationship. An example
of this is a marriage in community of property, where the common law,
as varied by the Matrimonial Property Act 88 of 1984, imposes co -
ownership upon the parties to the marriage. Another is the co -
ownership of the common property in a sectional title development, by
virtue of the provisions of s 16(1) of the Sectional Titles Act 95 of 1986.
It may arise from an act such as the execution of a trust deed by the
founder of a trust and the acceptance by the tr ustees of office under
that deed. Another possibility is an agreement between the co -owners,
as in a partnership or the constitution of a universitas. In the case of
trust deeds, partnership agreements and constitutions the parties are
usually free to vary their terms and the terms of the relationship
between the co-owners.”
38.3. After a comprehensive analysis of various authorities, including
academic literature, case law and comparative law, Wallis JA held7:
"... the distinction between free and bound co-ownership is that in the
former the co -ownership is the sole legal relationship between the co -
owners, while in the latter there is a separate and distinct legal
relationship between them of which the co -ownership is but one
consequence. Co-ownership is not the primary or sole purpose of their
relationship, which is governed by rules imposed by law, including
statute, or determined by the parties themselves by way of binding
5 At paragraph [22]
6 At paragraph [24]
7 At paragraphs [46] and [47]
agreements. The relationship is extrinsic to the co-ownership, but is not
required to be exceptional. In other words, it requires no special feature
for the co -ownership consequential upon the relationship to qualify as
bound co-ownership. ...
...
There is no closed list of instances of bound co -ownership. If the
relationship gives ri se to bound co -ownership the co -ownership will
endure for so long as the primary extrinsic relationship endures. Once
it is terminated then, as in Menzies and Robson v Theron, it will
become free co -ownership and be capable of being terminated under
the actio. I consider the facts of this case in accordance with those
principles.”
39. Mr Abduroaf, who appeared for the applicant, submitted that in comparison to
the bound co -ownership of property by spouses married in community of
property referred to in the judgment , by default, in a marriage where the
parties contracted out of community of property , then property owned jointly
by the parties is held in free co -ownership (and can be terminated at any time
by way of the actio communi dividundo).
40. I do not regard Wallis JA’s judgment to support this binary distinction between
different matrimonial property regimes . Indeed, he rejected the proposition
that the starting point is that in co -ownership the availability of the actio is
implied by law, so that it must be excluded unambiguously , and held8 “... It
puts the cart of a conclusion — 'This is free co-ownership' — before the horse
of the question — 'Is this free or bound co -ownership?'. The common law is
that the actio is always available in the case of free co -ownership and never
available in bound co -ownership. In any particular case the question of the
proper characterisation of the co -ownership arises at the outset. Only once it
has been answered can one decide what the common law attributes of the co-
ownership are.”
8 At paragraph [51]
41. In the present matter the parties’ co -ownership of the Sunningdale property
arises from and is constituted as a consequence of their marriage
relationship. All of the applicants’ other immovable property is held solely in
his own name. But for his marriage to the respondent, he would not have
shared ownership with her. The Sunningdale property was purchased for and
occupied as the parties’ marital home. Independently of the matrimonial
property regime chosen by the parties, and as matter of law, a reciprocal duty
of support arose between them from the moment of their marr iage i.e. a legal
relationship exists between the parties other than the co-ownership itself.
42. In my view, taking account of the facts summarised above, the marriage
relationship (despite being out of community of property) renders th e parties’
co-ownership of the Sunningdale property as bound co-ownership, and for so
long as the parties remain bound to each in marriage - which is their primary
‘extrinsic relationship’ - their co-ownership endures. It can be terminated only
when the marriage is dissolved.
43. Even if my finding characterising the parties’ co -ownership (and deferring the
termination of the co-ownership) is wrong, it does not follow that it is equitable
that the property must be sold as prayed for by the applicant.
44. Where physical division of the property is not possible or is impractical, as in
the present matter, the Court has a wide equitable discretion to order
alternative appropriate re lief 9: in exercising that discretion the Court has
regard to the particular circumstances of the case, what is most to the
advantage of all the co -owners, and what they prefer 10, although the Court is
not bound by the parties’ proposals on division.
45. It is an accepted principle that it may be equitable to award the property to
one of the co -owners, subject to compensation to the other co -owner.11 The
9 Robson v Theron supra at 856H – 857A
10 Ibid at 855C
11 Ibid at 855E
sale of the common property by public auction is merely one of the methods
that may be employed in dividing a common property between the owners.
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 owner s in
respect of the property they own jointly and are now seeking to divide
between them.12 This debate can and must take place if the Court awards the
property to one of the co -owners, with any consequential adjustment to
compensation payable to the other co-owner.
46. In this matter, for reasons that follow, the Court is not yet equipped to give an
order, as it should , that is suitable to the circumstances of the parties
concerned.
47. The affidavits filed by the parties have alerted the Court to the possibility (and
I put it no higher than that) of the respondent setting off against the payment
that may be due to her f rom her accrual claim the cost of acquiring the
applicant’s half share of the property. The termination of co-ownership by way
of one co -owner buying the other co -owner’s share of t he property is a
potentially equitable mode of division . However, the Court cannot now
determine the fairness and feasibility of such an arrangement without
knowledge of the market value of th e Sunningdale property, the equity in the
property, the size of the award that the respondent will receive on account of
her accrual claim upon divorce , her capacity to fund a mortgage bond (if
required) from her own resources , and the amount and duration of any
spousal maintenance that should be paid by the applicant to the respondent
(if any), which may supplement her capacity to afford a mortgage bond. These
elements will only be determined at the hearing the divorce action.
48. If I now disregard potential mode s of division alternative to the sale of the
12 Rademeyer and Others v Rademeyer and Others 1968 (3) SA 1 (C) at 14B-C
Sunningdale property, I would be fettering my own discretion, with potentially
inequitable results.
49. For this reason also, I hold that the termination of the co -ownership and all
relief ancillary thereto should be determined simultaneously with the issues in
the divorce action.
50. On behalf of the applicant, Mr Abduroaf submitted that an order to this effect
would be preju dicial to the applicant, who must continue to pay the monthly
mortgage bond, and he may be obliged to do so for a protracted period until a
court date is allocated by the Registrar.
51. To mitigate the prejudice of which the applicant complains , I secured the
approval of the Acting Judge President for a preferential trial date for the
hearing of the divorce action (upon which the parties have agreed ) and the
simultaneous hearing of the issues in this matter , all of which I refer to trial as
provided in the order hereunder:
51.1. The application is postponed for hearing as a trial in the fourth division
simultaneously with the divorce action under case number 15064/2023
on 4 November 2024.
51.2. The affidavits filed of record in this application shall stand as the
parties’ respective pleadings.
51.3. All directives issued in the case management of the divorce action shall
apply equally to the further conduct of the trial of this matter.
51.4. All questions of costs stand over for later determination.
______________________
GORDON-TURNER AJ
ACTING JUSTICE OF THE HIGH COURT
Appearances
Counsel for Applicant Adv Muahammad Abduroaf
Attorney Representing the Respondent Mr Charl May
BDP Attorneys