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
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER:15857/24
In the matter between
K[…] A[…] APPLICANT
and
A[…] M[…] E[…] FIRST RESPONDENT
REGISTRAR OF DEEDS SECOND RESPONDENT
JUDGMENT
Date of hearing: 14 November 2024
Date of judgment: 27 November 2024
BHOOPCHAND AJ:
1. The Applicant and the Respondent were married under Islamic law on 6
February 2000. The marriage was terminated on 19 May 2008 by Talaaq.
During the tenure of the marriage, the Applicant and Respondent 1 jointly
purchased a property at 2[…] T[…] Road Ottery (“the property”) for R320 000.
The property is mortgaged to Absa Bank , the remaining balance being
approximately R175 000. The current municipal valuation is R2 320 000. After
their separation, the Applicant remained on the property with the couple’s two
children. The Applicant states that the Respondent paid the bond and
municipal accounts as part of his maintenance obligation. He moved out in
2006.
2. The Applicant remarried in 2013, and her husband took up residence with her
on the property. The Respondent stopped paying maintenance. The Applicant
and her husband paid the bond and the municipal account. The bond
payments were made to the Respondent as he initiated the debit order. The
Applicant alleges that she maintained and improved the property. The
Applicant contends that she effected about R550 000 in improvements and
restoration work to the property over the years she occupied it. Sometime this
year, the Applicant and her spouse decided to relocate elsewhere. The
Respondent had since rented out the property.
3. The Applicant and the Respondent desire t o terminate the joint property
ownership. The Applicant offered her half share in the property to the
Respondent at a fair market value price. The Respondent denied that the
Applicant was entitled to any ownership right but offered her R150 000 for her
share. The Applicant rejected the offer . The Applicant, in turn, proposed that
the property be sold and the proceeds divided equally after the necessary
deductions. The Respondent did not react to the counterproposal. The parties
are unable to finalise the division of the property as they cannot agree on how
the property should be divided and the method of terminating the joint
ownership.
1 The Second Respondent provided a report, but has no further role in this application. Fo ease
of reference, the First Respondent shall be referred to as the Respondent unless the context indicates
otherwise.
4. The Applicant contends that she cannot be forced to remain a co -or joint
owner. She has the right to terminat e her ownership through the actio
communi dividundo . Applicant contends that one recognised mode of
achieving division is for the Court to appoint a Receiver and Liquidator
(“receiver”) with powers to divide the property or the proceeds of its sale.
Applicant proposed the names of two attorneys for appointment under defined
powers and functions. The Applicant was advised that a party claiming
termination of co-ownership had to allege an d prove the existence of the joint
ownership, the refusal of other owners to agree to the termination of joint
ownership, the inability to agree on the method of termination, an order or
agreement to terminate and the other owners' refusal to comply with i t. The
facts upon which a court can exercise its discretion as to how to terminate the
joint ownership The general rule is that the Court will follow the method that is
fair and equitable to all parties.
5. The Respondent was advised that the actio commun i dividundo is usually
instituted by action proceedings and only on an application if there are no
material factual disputes. He alleges that there are real, genuine, bona fide,
and material factual disputes between him and the Applicant in respect of their
contributions to the property. He was advised that the material disputes are
better ventilated in action proceedings . The Applicant chose to launch an
application aware of the existence of these factual dis putes. Therefore , the
Plascon Evans Rule, which favours the Respondent in application
proceedings, would be applicable. Respondent was advised that “if a party
has knowledge of a material and bona fide dispute, or should reasonably
foresee its occurrence and nevertheless proceeds on motion, that party will
usually find the application dismissed” . He was further advised that a receiver
cannot take over the function of the Court in deciding factual disputes, and, as
such, it would not be appropriate to appoint one.
6. Respondent does not oppose the termination of the joint ownership of the
property but contends that this relief cannot be granted alone. It should be
granted with an order as to the division of the proceeds of the sale of the
property between the parties that is fair to both parties after the Court hears
evidence in respect of each part y’s contribution in respect of the purchase,
maintenance, repairs, etc. of the property.
7. Respondent opposes the appointment of a receiver. The appointment will be
expensive and must be deducted from the sale proceeds . Respondent also
opposes the choice of receiver. Respondent would prefe r selling the property
privately and not on a public auction. The former option will allow the parties
more room to negotiate the selling price and agent’s commission. He opposes
the division of the sale proceeds on an equal basis as he contributed more to
the purchase and maintenance costs relating to the property, including deposit
payments, bond payments, bond costs, municipal account payments,
maintenance and repairs to the property.
8. Respondent states that he and the Applicant purchased the property jointly
because he was self -employed and did not have an established credit record
at that time. The Applicant was employed as a legal secretary. The law firm
the Applicant worked for did the transfer of the property. He paid a deposit of
25% of the property's purchase price and other related costs , including the
bond. He paid the monthly bond , municipal accounts , upkeep and property
maintenance. The Applicant made no payments towards the property.
9. Respondent characterises the amount paid by the Applicant’s current husband
as rent rather than bond payment. The Respondent asserts that he did not
pay the monthly bond and municipal accounts instead of maintenance for the
Applicant and his children. He did not want his children to relocate and
considered it in their best interests to keep some stability in their lives,
considering that their parents had recently divorced.
10. After the Applicant had remarried, he met her at a coffee shop. They talked
about the joint property and the way forward si nce she remarried. The
Applicant allegedly confirmed that she had not made any financial
contributions to the property but asked if it would be okay if she and her new
husband stayed there. He agreed because his children’s interests are
paramount, and he did not want to put them through a relocation. They agreed
that her husband would pay the municipal accounts and an amount equivalent
to the bond as rent. The applicant’s husband paid the municipal account
directly, and the rental was added to the Respondent’s account.
11. The rental amount was well below a market-related rental of about R10 000
for the property. As a gesture of goodwill and considering the children’s
interest, the monthly rental payable remained at R5000 for ten years, after
which it decreased to R6000. There were about three times when the
Applicant’s husband did not make the municipal payments timeously , which
caused the water supply at the property and his residence to be cut off
because his identity number was on the municipal acco unts of both
properties.
12. No Court had ordered him to pay maintenance. He continued to pay for his
children’s school fees, medical aid , clothing, groceries, and physical needs
like he did when he and the Applicant were still married. He says he paid a
monthly sum between R5000 -R7000 voluntarily to the Applicant before she
remarried. The last rental and municipal a ccount payment made by the
Applicant was in November 2023. The Applicant and her husband vacated the
property. They did not notify him that they would be leaving. They left the
property unlocked and without a handover. He obtained the keys from a
neighbour after a few weeks. He is repairing the property at his own cost to
make it liveable again. Whilst the property was empty, vagrants squatted
there. He had to ask his employees to live there. The employees do not pay
rent- just electricity. The cost of rep airing the property to a liveable state
exceeds R185,000. He has been paying the monthly bond payments and
municipal accounts since November 2023. He states that the market value is
usually higher than the municipal value. Both children have now reached
maturity.
13. Respondent denies that the Applicant made any improvements to the
property. He is uncertain how the maintenance of his children is relevant to
the termination of the joint ownership. He maintained the property. When the
Applicant enjoyed the disc ounted rental, he had to pay R15000 monthly rent.
Respondent alleges that the Applicant could not prove that she (and not her
husband ) made the improvements and restoration work in the sum of
R550 000. He will respond when the Applicant provides the invoi ces
evidencing the amounts spent.
14. The Applicant, in reply, summarised the Respondent’s answer and concluded
that there was no actual dispute concerning the respective contributions
towards the bond and maintenance of the property. The Respondent made
payments towards the bond since February 2000 and stopped paying in 2013.
She made the bond payments from 2013 until February 2024. She made
improvements, renovated the property and incu rred costs totalling R550 000.
The Applicant contended that she and the Respondent contributed to the
property. The property is registered in both their names in equal shares. There
was no need to proceed on action as there was no dispute of facts.
15. Applicant asserts that the Respondent conceded to the termination of the joint
ownership of the property, which should be the end of the matter. The
Applicant repeated her contention that a receiver should deal with the
distribution of the proceeds of the property’s sale according to the powers and
functions defined by the Court. The Respondent’s objection to the choice of
receiver is ill -founded for two reasons. He has not suggested an alternative,
and his criticisms of Applicant’s nominees because they ha d a previous
working relationship with the Applicant’s attorney cannot be sustained. The
nominees are officers of the Court and are expected to abide by the law and
this Court’s directions.
16. The Applicant admitted that the property was purchased jointly as the
Respondent did not have a credit score and that she worked at the attorney
firm that attended to the transfer. She persists in saying she is entitled to her
half-share of the property. The Applicant denied declaring that she had no t
contributed financially to the property. She and the Respondent agreed that
she would continue occupying the property and pay the bond, municipal
accounts and electricity. It was irrelevant that the payments were made from
her husband’s account. The amount paid to the Respondent was not a rental
payment. The Respondent consistently refers to joint ownership in his answer
but denies her entitlement to half a share of the property.
17. The Applicant asserts that it was irrelevant there was no maintenance orde r.
The Res pondent’s contention that he paid for the children’s medical aid,
school fees , clothing, groceries , and their physical needs conflicted with his
denial that the bond and municipal services payments were maintenance
payments towards the Applicant and the children (before she remarried).
Applicant stated emphatically that the Respondent was obliged to maintain the
children. Applicant corrected the facts relating to her vacating the property.
She left on 1 March 2024. The last bond payment she made was for February
2024. She did not need to inform the Respondent of her pending departure as
she co -owned the property. The Respondent’s allegation that she left the
property unlocked is contradicted by his subsequent statement that he could
only access the property after he obtained the keys from a neighbour. She
ensured the property was left satisfactorily, although the garage door and gate
were no longer automated . She was informed by the neighbours that the
Respondent began knocking down walls after she left. He had reduced it to an
unliveable state.
THE ACTIO COMMUNI DIVIDUNDO
18. The actio communi dividundo is a Roman law remedy enabling co-owners to
demand and resolve disputes over property division . A court can order the
property to be sold or assign the property to one co -owner in exchange for
compensation from the other co -owners. If practical, the court can also order
the property to be subdivided. The remedy frees a co-owner from enforced co-
ownership.
19. The judgment of Wallis JA in Municipal Employees Pension Fund and Others
v Chrisal Investments (Pty) Ltd,2 is a comprehensive exposition of the actio
communi dividundo . It provides examples of co-ownership of property and
expounds on ‘free’ or ‘bound’ co-ownership. Bound co-ownership arises from
a legal relationship between the parties other than the co -ownership itself. In
other words, there is a legal relationship between them going above and
beyond their co-ownership of the 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.3
20. Extrinsic legal relationships creating bound co-ownership could arise as a
matter of law when parties enter into particular relation ships. 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 through the provisions of s 16(1) of the
Sectional Titles Act 95 of 1986 . Bound co -ownership could arise from the
execution of a trust deed by the founder of a trust and the acceptance by the
trustees of office under that deed. Another example is an agreement between
the co -owners in a partnership or the constitution of a universitas. In 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.4
21. After a panoptic analysis of various authorities, including academic literature,
case law and comparative law, Wallis JA held that:
"... the distinction between free and bound co -ownership is that in the former
the co-ownership is the sole legal relatio nship between the co -owners, while
in the latter there is a separate and distinct legal relationship between them of
2 Municipal Employees' Pension Fund and Others v Chrisal Investments (Pty) Ltd and Others
(792/19) [2020] ZASCA 116; [2020] 4 All SA 686 (SCA); 2022 (1) SA 137 (SCA) (1 October 2020)
(“MEPF”)
3 MEPF at para 22
4 MEPF at para 24
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 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. ...”5
22. The Learned Judge of Appeal continued:
“There is no closed list of instances of bound co -ownership. If the relationship
gives rise 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
Menzies6 and Robson v Theron 7, it will become free co -ownership and be
capable of being terminated under the actio.”8
23. In a recent decision premised upon the parties' unequal contributions to the
expenses related to a co -owned property in a marriage out of community of
property, this Court applied the principles explained in Municipal Employees
Pension Fund and Others v Ch risal Investments (Pty) Ltd to the facts of that
case.9 Counsel appearing for the Applicant submitted that in comparison to
the bound co -ownership of property by spouses married in community of
property, by default, in a marriage where the parties contracted out of
community of property, the joint property is held in free co -ownership and can
be terminated at any time by way of the actio communi dividundo.
24. Gordon-Turner AJ did not regard Wallis JA’s judgment to support th e binary
distinction betwe en different matrimonial property regimes. She contended
that the learned Judge of Appe al had rejected the proposition that the starting
5 MEPF at para 46
6 Ex Parte Menzies et Uxor 1993 (3) SA 799 (C) at 810G-811G
7 Robson v Theron 1978 (1) SA 841 (A) at 854G-855H
8 MEPF at para 47
9 P .N v A.E (20081/2023) [2024] ZAWCHC 266 (16 September 2024)
point is that in co -ownership, the availability of the actio is implied by law, so
that it must be excluded unambiguously, and explained that “... 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 for free co -ownership and never in bound co -
ownership. In any particular case , 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.”10
25. Gordon-Turner AJ determined that the parties’ co -ownership of the property
arises from and is constituted as a consequence of their marriage relationship.
The Applicant’s other immovable property was held solely in his name. But for
his marriage to the respondent, he would not have shared ownership with her.
The property was purchased for and occupied as the parties’ marital home.
Independently of the matrimonial property regime chosen by the parties, and
as a matter of law, a reciprocal duty of support arose between them from the
moment of their marriage, i.e. a legal relationship exist ed between the parties
other than the co -ownership itself. In the Judge’s view, after taking account of
the facts in t hat case, the marriage relationship , despite being out of
community of property, rendered the parties’ co-ownership of the property as
bound co-ownership. For as long as the parties remain bound to each other in
marriage - their primary ‘extrinsic relation ship’ - their co-ownership endures. It
can be terminated only when the marriage is dissolved.
EVALUATION
26. The affidavits filed in this application , which devolved into an eloquent
exchange of legal argument, raised but a single reference in the Respondent’s
written argument about whether the property was free or bound. Still, it elicited
significant de bate in the oral argument. The Respondent relied upon it in
response to t he Court’s suggestion that applying the fair and equitable
10 MEPF at para 51
principle to th e primary relief sought by the Applicant would mean that the
default position should be an equal property division.
27. By all accounts, all extrinsic legal relationships binding the parties had ended.
The marriage by Islamic rites terminated in 2008, and the parties' obligation to
maintain and support the children also ended when the latter attained majority.
The Applicant contended that the property began as bound co -ownership but
was now free , and its division could be determined under the actio communi
dividundo. The Court agrees.
28. The question is whether the Applicant has satisfied the requirements for the
actio communi dividundo, namely proof of the co-ownership of the property
with the Respondent, that she no longer wishes to be co -owner, and the
parties have not agreed upon the mode of division of the property . The
Applicant provided a copy of the title deed , which indicated that they took a
joint transfer of the property on 28 May 2002. The Respondent admitted that
he also sought termination of the joint ownership of the property. All that
remains is for the Court to determine the mode of division of the property.
29. The Applicant contends that she is entitled to half the property , and the
Respondent disputes the contention. Their respective reasons were
summarised earlier in this judgment. The Respondent accepts that there is
co-ownership of the property and that joint ownership should be terminated .
The Respondent disputes that the proceeds of its sale should be divided
equally. He contends that the extent of each party’s contribution to an d the
benefits derived from the joint property can only be determined through oral
evidence as the disputes are incapable of resolution on the papers . The
Applicant does not agree. The Respondent contended that the Applicant
should have proceeded by instituting an action rather than an application.
30. The Applicant denies that she was obliged to seek relief through an action
procedure. She contended that the Respondent’s allegations did not
constitute a genuine dispute on any material question of fact . There was no
reason for incurring the delay and expense of a trial. The Respondent’s
answering affidavit does not disclose a bona fide dispute of fact capable of
being decided only after viva voce evidence has been heard. 11 where a
dispute of fact has ari sen on the affidavits, and there is no request for referral
to oral evidence, the Court will only grant a final order if those facts averred in
the Applicant’s affidavits which have been admitted by the Respondent ,
together with those facts alleged by the Respondent justify such an order. 12 A
Court cannot be hamstrung by unworthy tactics to impede or delay justice
when a robust and common sense approach may resolve a dispute on motion
proceedings.13
31. The Respondent’s contentions that his financial contribution to the property is
more substantial as he paid the initial deposit , the bond, the municipal
charges, and the costs of maintenance and repairs do not withstand scrutiny.
These allegations cannot be sustained. Th e evidence before the Court is that
he did pay all of those costs before 2013, but after the Applicant’s remarriage,
she undertook to pay them, and she did. The amount is too coincidental to be
regarded as rental rather than what it was, i.e., the bond pay ments. There is,
however, a deeper-seated objection to the Respondent’s allegations.
32. The Respondent’s allegation that the Applicant could not provide evidence
that she, and not her husband , made improvements and restoration work to
the sum of R550 000, that the Applicant’s husband made the bond payments
to Respondent’s bank account , and that he had paid the expenses of the
property during the subsistence of the marriage are archaic and are
unpalatable in a con stitutional dispensation based on human dignity and
equality. The deprecation of a spouse’s role in a marriage can no longer be
endured because of allegations that they did not contribute financially to the
acquisition of property during the tenure of the marriage. The Court has
purposefully strayed from characterising these disputes as gender-based
disputes as they could conceivably arise in same-gender situations. Legal
11 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
12 Plascon Evans Paints (Tvl) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) 623 (SCA) at 634
H-I
13 Soffiantini v Mould 1956 (4) SA 150 ( E ) at 154 G-H
practitioners must advise their clients that these allegations and arguments
will not withstand the Court’s scrutiny when it is required to apply the f air and
equitable principle to determine a dispute.
33. The Supreme Court of Appeal stated about twenty years ago, in the context of
a redistribution order in section 7(3) of the Divorce 70 of 1979, that the
traditional role of a housewife, mother and homemaker should not be under -
valued because it is not measurable in terms of money. 14 The Applicant ’s
evidence was, in any event, that she worked. In another decision of this Court,
Van Zyl AJ stated in the context of the facts of that case:
“It has to be borne in mind that the joint ownership of the property in this
matter does not stem from a commercial transaction, where the transaction
can be unravelled with mathematical precision with reference to the financial
input of each co -owner. The property in the present matter was purchased
and owned by the parties during a marriage relationship…”15
34. The Respondent’s version does not dispute the bond ; municipal charges,
maintenance, improvements and repairs to the property were paid after 2013.
He attempts to distinguish between payments made by the Applicant’s
husband and the Applicant and attributes bond payments as a rental. The
Court has already rejected the latter contention. The Respondent’s contention
that he paid the deposit on the property is regarded as his contribution to a
joint and indivisible marital relationship. The Court is, therefore, in a position to
decide the matter on the papers as it finds that the Respondent raises no
genuine dispute of fact that requires the dismissal of this application either for
want of referral to oral evidence or through raising it in an application
procedure rather than by action. The probabilities overwhelmingly favour the
specific factual findings that follow.16
14 Bezuidenhout v Bezuidenhout 2005 (2) SA 197 (SCA)
15 Z.I v W.I and Another (13142/2022) [2023] ZAWCHC 95 (9 March 2023) at para 29
16 South Peninsula Municipality v Evans and Others 2001 (1) SA 271 (CPD) at 283 F-I
35. The Court finds that the Applicant is entitled to a half share of the property for
the reasons already canvassed, namely that she contributed to the property in
cash and kind , the former, her direct financial contributions, and the latter
encompassing all of the other duties r equired of her during the co -ownership
of the property from the date of the parties marriage to the date that there no
longer existed any further extrinsic legal relationship that bound them , i.e., the
reciprocal duty to maintain the children after the latter had reached the age of
majority.
36. Having decided that the Applicant is entitled to a half share of the property, the
next issue to be determined is how the property should be divided, i.e., by
actual division if that is possibl e, or by ordering that one party purchase the
property or allocating the property to one party and ordering the other to pay
the equivalent of the half sh are to the other, or by sale on the understanding
that the parties would be entitled to a half share of the proceeds of the
property. The parties themselves are agreed that the property should be sold.
The Respondent prefers that it be sold privately rather than in an auction.
37. The Applicant suggested the appointment of a receiver. Now that the Court
has determined that the proceeds of the sale of the property are divided or
shared equally, there is no longer a need for a receiver. The Respondent was
averse to the appoi ntment of a receiver and to the choices submitted by the
Applicant. The property contains a single dwelling, and the municipal valuation
does not justify the expense of appointing a receiver . The Court agrees with
the Respondent’s contentions in this respe ct. The Applicant has not identified
a legal basis or source of the Court’s power to appoint a receiver.17 The Court
understood that the Applicant would not pursue this ancillary relief if the Court
ordered that the sale proceeds be divided equally between the Applicant and
the Respondent after all necessary expenses were settled, including the
mortgage bond settlement. These aspects would ordinarily be handled as part
of a conveyancer’s obligations in transferring the property.
17 Morar NO v Akoo and Another [2011] 4 AllSA 617 (SCA) in the context of the dissolution of a
partnership.
38. The Court requested the parties submit their draft orders, assuming they
would prevail. The Court has considered the respective submissions and
found both inadequate and unhelpful. The Applicant failed to provide a
minimum selling price for the property or a timeline for its sale. There is no
reason why the parties cannot agree among themselves on the logistics
involved in the further conduct of the matter now that the Court has decided
on the co -ownership of the property. T he Respondent’s Counsel provided a
terse draft requesting the application be dismissed and stating th at the
Applicant should pay the costs. The Applicant’s Counsel asked for costs on a
punitive scale. The latter prayer was unmotivated , and the Court is averse to
making that order. The Applicant has been largely successful, and there is no
reason why she should not be entitled to her costs. The late filing of the
Applicant’s replying affidavit and written argument was not raised as an issue
at the hearing on 14 November 2024. To the extent that the Court is required
to do so, the application for condonation is granted.
ORDER
1. The joint ownership between the Applicant and the First Respondent in
respect of the property described as erf 2[…] Ottery situated at and more
commonly known as 2[…] T[…] Road, Ottery, Western Cape (‘the property”) is
hereby terminated,
2. The property shall be sold by private treaty at market value, the sale of which
shall be by agreement between the Applicant and the First Respondent,
3. The proceeds of the sale , after the deduction of all amounts encumbering the
property and the costs of selling it, shall be shared equally between the
Applicant and the First Respondent,
4. The Applicant and/or the First Respondent may apply to this Court through the
chamber book for any further directions necessary to conclude the private
sale of the property,
5. The First Respondent shall pay the costs of this application, including the cost
of Counsel.
________________________
Ajay Bhoopchand
Acting Judge of the High Court
Western Cape Division
Cape Town
Judgment was handed down and delivered to the parties by e -mail on 27
November 2024.
Applicant’s Counsel: Advocate A Titus
Instructed by A Fotoh & Associates Inc
Counsel for the Respondent: M Botha
Instructed by ZS Incorporated