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REPUBLIC OF SOUTH AFRICA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number :57158/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 26 FEBRUARY 2025
SIGNATURE:
In the matter between:
MARYNA SYMES NO First Applicant
ELSIE WAGNER NO
(in their capacities as the duly appointed trustees of the insolvent estate of Anna -
Marie Pottas, Identity number 6[...]) Second Applicant
and
WYNAND JOHANNES LIEBENBERG First Respondent
THE STANDARD BANK OF SOUTH AFRICA LIMTED Second Respondent
THE MASTER OF THE HIGH COURT, PRETORIA Third Respondent
___________________________________________________________________
JUDGMENT FOR LEAVE TO APPEAL
___________________________________________________________________
BOKAKO AJ
Delivered: This judgment was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to Parties /
their legal representatives by email and by uploading it to the electronic
file of this matter on Case Lines. The date of the judgment is deemed
to be 2 6 February 2025.
INTRODUCTION
1. This is an application for leave to appeal. The applicants seek permission to
appeal to the Full Court of the High Court of South Africa, Gauteng Division,
Pretoria, against the entirety of the judgment and order of this court rendered
on 3 October 2023. In that judgment, this Court ordered:
(a). The parties' joint ownership of the immovable property described as
ERF 2[...] P[...] E[...] [...] Township, Registration Division I.R. Gauteng
Province ('the property ”) is terminated,
(b). The applicants are ordered to transfer the insolvent's 50% to the first
respondent.
(c). The applicants and the first respondent must sign all documentation
necessary to effect the property transfer to the first respondent,
(d). In the event of the applicants and/or the first respondent failing to
comply with the order, a Sheriff of the High Court is authorised and
directed to sign such documentation on their behalf.
2. The applicant submit s this application with a firm belief that there is a reasonable
prospect of success for the appeal . The Respondents did not oppose this
application.
3. The Applicant seeks to challenge that order. This property serves a s the primary
residence of the first respondent. The first respondent has consistently argued
that allow ing the insolvent estate of the applicant to benefit from 50% of the
respondent's property would not only place him in a precarious position but also
unduly enrich the insolvent estate with a share of a property that the applicant
has never genuinely valued . Her co -ownership has always been a matter of form ,
not substance.
4. The grounds for the leave to appeal are succinctly stated in the notice of
application for leave to appeal as follows:
4.1. In finding that the applicants should transfer the 50% undivided share
in the immovable property held by the applicants to Liebenberg.
4.2 In relying on Liebenberg’s unsubstantiated and impermissible hearsay
evidence in reaching the conclusion that it was never the intention of
the insolvent to be an owner of the 50% undivided share in the
immovable property, without having due regard to the common cause
evidence that in order for the insolvent and Liebenberg to purchase the
immovable property, the insolvent and Liebenberg jointly applied for a
home loan with Standard Bank, which home loan was approved on the
strength of that application, and that both the insolvent and Liebenberg
entered into the home loan agreement with Standard Bank, signed the
necessary documents in order to effect transfer of the immovable
property into both their names and caused a mortgage bond to be
registered over the immovable property in favour of Standard Bank.
4.3. In disregarding the fact that the insolvent estate remains jointly and
severally liable, together with Liebenberg, for payment of the
outstanding amount due on the home loan account to Standard Bank,
despite taking cognisance of the fact that Standard Bank is a secured
creditor in the insolvent estate by virtue of the mortgage bond
registered over the immovable property in favour of Standard Bank.
4.4. In disregarding the rights of Standard Bank as one of the contracting
parties to the home loan agreement, and in whose favour the mortgage
bond has been registered, without having due regard to the principle of
pacta sunt servanda and/or the common cause evidence that
Liebenberg is not in a financial position to be substituted as the sole
debtor to the home loan agreement.
4.5. In relying on Liebenberg’s unsubstantiated and impermissible hearsay
evidence in reaching the conclusion that the insolvent’s estate would
be unjustly enriched, without having due regard to the case law put
forward by the applicants on the principles
4.6. In finding that the applicants have failed to disclose who the creditors
and how much is owed without having due regard to the certificate of
balance annexed to the applicants’ founding affidavit confirming the
amount due and payable to Standard Bank in respect of the home loan
agreement and
4.7. The applicants should pay the costs of the application.
5. It is a trite principle of our law that leave to appeal may only be granted where the
Judge or Judges presiding are of the opinion that the appeal would have a
reasonable prospect of success or where there is some other compelling reason
why the appeal should be heard, including conflicting judgments on the matter
under consideration. (See section 17 (1) (a) (i) and (ii) of the Superior Courts Act,
10 of 2013).
5. In terms of section 17(1)(a)(i) and section 17(1)(a)(ii) of the Superior Courts Act
10 of 2013 (“the Superior Courts Act”), leave to appeal may only be granted
where the Judge or Judges concerned believe that:
(a) The appeal would have a reasonable prospect of success, or there is some
other compelling reason why the appeal should be heard, including if there
are conflicting judgments under consideration.
(b) Regarding the word ‘would’ in s 17 of the Superior Courts Act 10 of 2012 (the
Act) sub -section 17(1) (a) (i) above, the Supreme Court of Appeal has found
that the use of the word in the section imposes a more stringent threshold in
terms of the Act, compared to the provisions of the repealed Supreme Court
Act 59 of 1959.
6. In MEC for Health, Eastern Cape v Mkhita 2016 JDR 2214 (SCA), the Supreme
Court of Appeal emphasized the application for the test for leave to appeal and
found as follows in paragraphs [16] to [17]:
“[16] Once again, it is necessary to say that leave to appeal,
especially to this court, must not be granted unless there truly is a
reasonable prospect of success. Section 17(1)(a) of the Superior
Courts Act 10 of 2013 makes it clear that leave to appeal may only be
given where the judge concerned is of the opinion that the appeal
would have a reasonable prospect of success or there is some other
compelling reason why it should be heard”.
“[17] An applicant for leave to appeal must convince the court on
proper grounds that there is a reasonable prospect or realistic chance
of success on appeal. A mere possibility of success, an arguable case,
or one that is not hopeless is not enough. There must be a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal”.
THE APPLICANT’S CASE
7. The representative of the applicant , Adv ocate N. Diederichs , stated that in order
to acquir e the immovable property, both the insolvent party and Liebenberg jointly
entered into a home loan agreement with Standard Bank . They execut ed the
necessary documents to facilitate the transfer of the property into their names
and register ed a mortgage bond over the property in favour of Standard Bank as
collateral for the home loan.
7.1. The parties express their intention to be legally bound by the contracts
with Standard Bank. No evidence of fraud or misrepresentation has
been identified; accordingly, the home loan agreement and mortgage
bond are deemed valid and enforceable.
7.2. The circumstances pertaining to the case indicate that, from an
objective perspective, the parties involved - most notably the insolvent
party (prior to her insolvency) - possessed both the capacity and the
intent to enter into legally binding contracts for the purpose of securing
ownership of the immovable property, an objective they successfully
achieved in 2007. This unequivocally demonstrates the insolvent
party’s aspiration to obtain ownership of the property.
7.3. Further, the court did not consider Standard Bank’s contractual rights,
particularly the principle that contracts are entered into voluntari ly and
equitably. Upholding the sanctity of contract s is fundamental to contract
law. Consequently, contract s entered into freely and seriously must be
honoured .
7.4. While the court ordered the applicants to transfer the insolvent estate’s
50% undivided interest in the property to Liebenberg, the court
overlooked that a mortgagor cannot convey the property unless the
mortgage debt is fully paid and the bond is cancelled.
7.5. Although the Court possesses significant equitable discretion in
property division , it can grant the entire property to one joint owner if a
division is impractical, as long as this owner compensate s the other for
their shares.
7.6. The Court failed to delineate which party bears the responsibility fo r the
expense s incurred in cancelling the mortgage bond and registering the
transfer of the insolvent estate’s shares in the property to Liebenberg .
7.7. Furthermore, the Court failed to recogniz e that the insolvent estate
remain s indebted to Standard Bank, despite the order to transfer its
share in the property to Liebenberg withou t any form of compensation.
7.8. The division of the immovable property as ordered is deemed
impractical and fails to yield a just and equitable outcome under the
prevailing circumstances.
7.9. The court focused solely on the limited and unproven evidence from
Liebenberg to conclude that the insolvent estate would be unjustly
enriched.
7.10. It was additionally contend ed that the court 's determination of the
property being the primary residence of the first respondent was
erroneous. Consequently, grant ing the insolvent estate a benefit from
50% of the respondent's property would not only place him in a
precarious situation but would also unjustly enrich the insolvent estate
with a 50% share of a property in which she has n ot had any
substantive concern . Her co -ownership has been solely a matter of
form rather than substance.
8. I have considered all the issues raised in this application for leave to appeal.
Therefore, another Court may come to a different conclusion in this case.
9. A compelling argument exists for why the appeal warrants consideration,
particularly in regard to the pra ctical implementa tion of an order.
10. It is entirely plausible that a nother court may deem this court’s assessment to
be erroneous, given the findings of the court in that the actio communi
dividundo is a recogni sed remedy within our legal system . This principle is
ground ed in the notion that any co -owner of property possesse s the right to
petition for a division of the jointly owned property at their discretion .
11. Furthermore, t he other court might reach a different conclusion, suggesting that
an agreement does not establish perpetual joint ownership . It is unclear w hether
either co-owner can request separation at any time.
12. The other court m ay find that the first respondent’s explanation lacks validity
since he initially intended to purchase the property in his own name. The first
respondent contended that his intention has always been to be recogniz ed as the
sole owner of the property, as evidenc ed by the events of August 2007 and
August 2011.
13. Another reason is that the first respondent and the insolvent were in a
relationship for less than a year when the house was bought and were not in a
relationship when the property was registered in their names.
14. It was also not in dispute that the applicant and the first respondent thus agreed
that they would purchase the property jointly but that the first respondent would
be liable to pay the bond payments.
15. Based o n the premise, I find that the application for leave to appeal deserves to
be successful , and leave to appeal to the full court of this Division is therefore
granted.
16. In the circumstances, I make the following order:
1. The application for permission to appeal to the Full Court of the High Court
of South Africa, Gauteng Division, Pretoria , against the judgment and
order dated 23 October 2023 , has been granted.
2. Costs of the application for leave to appeal are costs in the appeal.
T BOKAKO
Acting Judge of the High Court
Gauteng Local Division, Pretoria
APPEARANCES
Counsel for Applicant : Advocate N. Diederichs
Attorneys for Applicant; VEZI DE BEER INC
Counsel for 1st Respondent : Advocate L Peter
Attorneys for Respondent: THYNE JACOBS INC
Date of Hearing: 6 February 2025
Date of Judgment: 26 FEBRUARY 2025