1
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2024- 077124
In the matter between:
LUCHAN BUITENDAG Applicant
and
WIENANDT RUAN VAN ROOYEN
Respondent
This judgment has been delivered by uploading it to the CaseLines digital database of
the Gauteng Division of the High Court of South Africa, Johannesburg, and by emailing the attorneys of record of the parties. The deemed date and time of the delivery are
10H00 on 17 February 2025.
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
Date: 17 February 2025 __
1
JUDGMENT
DU PLESSIS J
Introduction
[1] This case concerns the termination of co- ownership of an immovable property
following the breakdown of a romantic relationship between the parties . It gives
credence to the maximum c ommunio est mater rixarum .1 The key issue is how the
division of the property and expenses should occur , given the competing claims
regarding financial contributions, fairness, and ancillary practical considerations.
[2] The applicant, Ms Buitendag, and the respondent, Mr van Rooyen, were in a
romantic relationship for approximately four years. Initially, they lived with Ms Buitendag' s mother before moving into an apartment owned by M r van Rooyen. In
October 2020, they decided to purchase a house together with the intention of making their relationship more permanent.
[3] The property was purchased for R1 080 000, with Mr van Rooyen paying a
deposit. The balance was financed through a bond of R962 000. Mr van Rooyen also
covered the transfer and bond registration costs. There was no express agreement on
how expenses related to the property would be shared.
[4] The relationship ended one month after purchasing the property, and Ms
Buitendag moved out. Since then, Mr van Rooyen has remained in exclusive occupation of the house and has borne the ongoing costs, including bond repayments,
rates and taxes, insurance, and maintenance. H e estimates that he has spent R
611,640.87 to date.
[5] By June 2023, Ms Buitendag requested to be released from the bond and co-
ownership as her financial obligations under the bond prevented her from obtaining credit. Mr van Rooyen was reluctant to sell or transfer the property into his name due
1 Co-ownership is the mother of disputes
2 to concerns over transfer costs and uncertainty about qualifying for a bond on his own.
He later proposed applying for a substitution bond but insisted that Ms Buitendag cover
the associated costs. They could not agree on how the co- ownership should terminate,
so they each approached attorneys for assistance.
[6] On 6 June 2024, Ms Buitendag's attorneys proposed a settlement, offering Mr
van Rooyen three options:
a. Purchasing her 50% share at market value within three months, subject to his ability to secure financing ; or
b. Listing the property for sale and dividing the proceeds equally after sale-related expenses ; or
c. Selling the property by public auction and dividing any proceeds.
[7] This proposal was rejected by Mr van Rooyen' s attorneys, who cited a
Lightstone valuation valuating the property at R900 000, arguing that selling the
property would result in a financial loss. The attorneys emailed that Ms Buitendag's
proposal was thus rejected by Mr van Rooyen " with the contempt it deserves ".
[8] A second settlement proposal was made, modifying the terms to:
a. Allowing Mr van Rooyen to buy out her 50% share of the undivided
property at a fair market value, conditional on securing a bond;
b. If unable to obtain a bond, sell the property on the open market for the
highest reasonable and realistic offer , with Mr van Rooyen retaining all
proceeds due to his financial contributions ;
c. If no sale occurred within six months, sell the property by public auction,
with Mr van Rooyen assuming the risk of any shortfall.
[9] This proposal was also rejected within 30 minutes, with Mr van Rooyen' s
attorneys reply ing "[o]ns stel voor u kliënt gaan voort met haar aksie ".
2
2 We suggest that your client continues with her action.
3 [10] Despite refusing the formal settlement offers, Mr van Rooyen contacted Ms
Buitendag two days later, informing her that he had prepared an R1 000 000 offer to
purchase for her to sign so that he c ould apply for a bond in his name. She requested
that they communicate through their attorneys. H e contacted her attorney directly, but
the attorney advised that all settlement discussions should be done through the legal
representatives. Her attorneys also wrote his attorneys to inform them of the phone
call. His attorneys did not reply to the email.
[11] Ms Buitendag subsequently launched this application requesting that the
property be sold in the open market or by way of auction. She did not want to be liable
for the costs of the transfer.
[12] Mr van Rooyen remains opposed to selling the property on the open market or
by way of auction, arguing that this would result in financial loss. Since he contributed
more to the purchase and upkeep of the property, he submits that he should be
compensated. In his notice of motion, he states :
a. “He will purchase the 50% undivided share with no clear indication of the price
he considers fair, with Ms Buitendag paying the various transfer costs of the
bond and the house into his name;
Alternatively
b. Ms Buitendag pay s R305 820.43 as reimbursement for past expenses before
he will agree to buy her share. ”
[13] He has not submitted a sworn valuation of the property, home loan bank , or
proof of any other expenses.
The law
[14] A co -owner cannot be forced to remain a co- owner where the relationship
between the co- owners has deteriorated to such an extent that the relationship cannot
continue.3 In such instances, i t should be terminated. The parties in this matter agree
3 These principles were set out in numerous cases, such as Prinsloo v van Niekerk 1921 TPD 115 and Ntuli v Ntuli
1946 TPD 181.
4 to the termination of the co- ownership. They disagree on how it should be terminated
and thus approached the court for assistance.
[15] The crisp matters in contention , as set out above. are whether the property
should be sold on the open market, or the 50% co -ownership share of the applicant
be transferred to the respondent , and whether the applicant is obligated to cover a
portion of the respondent's expenses occurred to date, or the expenses for the transfer
into his name.
[16] In Robson v Theron,
4 the court elaborated that the actio communi dividundo
originates from Roman law and was subsequently integrated into Roman- Dutch law,
which continues to be well -established in contemporary legal practice. The actio
communi dividundo allows co -owners to divide jointly held property and settle any
financial obligations ("personal items of payment " or praestationes personales )5 linked
to it. In other words, the action communi dividundo deals with the division of the
property and the adjustment of the various claims amongst the co- owners.6 This action
applies regardless of whether one or both parties are in possession of the property .
[17] The purpose of this action is twofold: Firstly, to divide the joint property and
secondly; to settle financial claims related to profits earned or expenses incurred in
connection with the shared asset. A fundamental principle behind this action is that ,
as stated earlier, no co -owner is obliged to remain a co- owner against their will. If co -
owners wish to divide their property, they can either agree on a division themselves or
seek court intervention if they cannot agree.7
[18] When resolving co -ownership disputes, a court has a broad and equitable
discretion. It considers factors such as the specific circumstances of the case, what is most beneficial for all co- owners, and their preferences. If a physical division of the
property is impossible, impractical, or unfair, the court may either award the entire
4 Robson v Theron 1978 (1) SA 841 (A) , references omitted.
5 See 854H – 855F for the authority cited.
6 See Van der Merwe LAWSA “Things” volume 27 par 217 and the authorities he cites, namely Grotius 3 28 9;
Oosthuyzen v Plessis (1887) 5 SC 69; Fryer v Engelbrecht 1910 CTR 863; Runciman v Schultz 1923 TPD 4.
7 See also Ntuli v Ntuli , 1946 TPD 181 at 184 .
5 property to one co- owner, provided they compensate the others or order that the
property be sold by way of auction, with the proceeds being divided among the co-
owners.
[19] These remedies , grounded in Roman- Dutch law, have been confirmed in South
African case law .8
[20] Robson v Theron9 also laid the foundation for more flexibility when co-
ownerships are dissolved. While Robson was concerned with a (commercial)
partnership, the principles were accepted in Van Onselen NO v Kgengwenyane ,10
which was concerned with a (romantic) partnership and a residential property – similar
to this case. The court in Van Onselen clarified that the law has moved away from a
rigid approach regarding the division of co- ownership. Instead, the courts have a
greater equitable discretion to ensure that the outcome i s fair to the parties and
practical in the given circumstances. Of course, not being strictly bound by rigid rules
does not imply that this power is unlimited . Instead, it means that the traditional
principle that the property should be sold at a public auction to the highest bidder is
not an absolute rule but a guideline. These legal principles will guide my broad
discretion in coming to a fair solution, although I must repeat Selke J , in saying that a
court cannot perform miracles.11
[21] To return to the facts , each option (buying out of Ms Buitendag 's share at fair
market value or selling the property on the open market or auction) has advantages and disadvantages.
[22] On the one hand, a buy-out would allow Mr van Rooyen to retain ownership of
the property while paying Ms Buitendag her undivided share. This would allow Mr van Rooyen to continue residing on the property and prevent unnecessary losses
associated with a rushed sale in poor market conditions. The transaction costs may
8 See Estate Rother v Estate Sandig ,1943 AD 47 at 53– 54; Drummond v Dreyer 1954 (1) SA 306 (N) .
9 1978 (1) SA 841 (A), references omitted.
10 1997 (2) SA 423, see specifically 329 I.
11 Drummond v Dreyer 1954 (1) SA 306 (N) at 308B.
6 also be lower, as agent commissions and auction fees would be avoided. The
disadvantages are all the uncertainties in such an approach: Mr van Rooyen' s ability
to qualify for a bond ; disputes in the valuation process and the question of what to do
with Mr van Rooyen' s expenses. Thus, A fair solution would be premised on the
purchase price being determined independently, Mr van Rooyen having to secure financing within a specified time, and clarity on the expenses that Ms Buitendag should
pay, if any .
[23] On the other hand, a sale of the property would ensure a clean break, prevent
disputes over valuation by allowing market forces to determine the fair price, and put a time limitation on how long to wait before proceeding to sell the house on auction.
The disadvantages are the possibility of financial loss to both parties, the fact that Mr
van Rooyen would need to vacate the property and having to wait for the property to
get sold (either privately or by way of auction). There is also a risk of selling the
property at a price lower than the outstanding bond, which means the parties will be
liable for the outstanding amount.
[24] As alluded to, auxiliary to all this , is the issue of whether Ms Buitendag should
share in the expenses that Mr van Rooyen incurred during the co-ownership. To
answer this question, I distinguish between costs associated with acquiring and
maintaining co- ownership, such as the initial deposit, the bond registration fees,
property transfer costs, rates and taxes, and insurance.
[25] There are also two underlying principles: Firstly , the fact that a co- owner does
not reside in the property does not absolve them of the duties of (co- )ownership and s
the financial obligations in terms of the mortgage bond. For example, Ms Buitendag
remains jointly liable for the mortgage bond, as co- ownership carries rights and
responsibilities regardless of occupation. For this reason, I am not convinced that it
would be entirely fair to absolve her from such responsibilities by not requiring her to
pay some of the costs of establishing and maintaining the co- ownership relationship .
Even more so, should Ms Buitendag benefit from the proceeds of the property sale
(possible profits) , it is only fair that she also contributes to certain joint ownership
expenses . For instance, rates and taxes, insurance, bond registration, and transfer
costs are co -ownership- related expenses and should be shared equally.
7
[26] Secondly , it must be considered that Mr van Rooyen exclusively occupied the
property , and some expenses incurred w ere due to this (exclusive) occupancy . In this
instance, bond repayments function as a substitute for rent and should be borne solely
by Mr van Rooyen. Similarly, routine maintenance is an ordinary cost of living and
should be the responsibility of the party who benefited from the occupation, and Mr
van Rooyen remains liable for that.
[27] Accordingly , if the property is sold, 50% of the deposit, rates, taxes, insurance,
and initial purchase costs should be deducted from the net proceeds before division between the parties. The bond instalments , maint enance and consumption charges
should not be deducted.
[28] As indicated above, both options have their advantages and disadvantages. It
seems reasonable to give Mr van Rooyen the option to buy out Ms Buitendag, but
strict timelines should be laid out to ensure that the matter does not continue
indefinitely . Mr van Rooyen cannot claim the costs that can be regarded as " substitute
for rent " payments (the bonds, the water and electricity consumption, and the everyday
maintenance) . He should also pay the costs of the transfer into his name. Ms
Buitdendag is liable for 50% of the expenses in curred to become co-owner and co-
bondholder ( i.e. the deposit, the initial transfer and bond registration costs ) and the
property rates and taxes . She should, however, not be liable for the transfer costs
associated with transferring the house into the sole name of Mr van Rooyen.
[29] Should the buy -out option not materialise within the stipulated time for whatever
reason, then the property should be put on the open market to be sold, failing which,
it should be sold by way of auction. The order will provide clear mechanisms and
timeframes to which the parties will be bound.
Costs
[30] The normal rule is that costs should follow the results. The applicant is
substantially successful as the court's decision is mostly based on one of the offers
8 she made (through her attorney) to the respondent, and what is set out in her notice
of motion .
[31] Despite various attempts to settle, the matter could not be settled. The
respondent 's WhatsApp message to her, in which he offered to apply for a loan of
R1 000 000 to take over the bond, seems genuine, but unfortunately, it was not made
through the respondent's attorneys. It is unclear why his attorneys did not reply to the applicant 's attorneys ' email to inform them that this offer was made. Th ese
cons iderations would have been more relevant had the applicant persisted with costs
de bonis propris against the respondent 's attorneys, for the refusal to mediate and
avoid litigation . Instead, they merely asked for costs. It remains unfortunate that there
was no greater effort to mediate at that stage to avoid litigation. The respondent's
stance that the applicant should continues and litigate warrants a cost order against
him.
Order
[32] The following order is made:
1. The joint ownership of the immovable property described as Erf 1985, Geduld
Extension, Springs Registration Division IR, Gauteng, also known as 50
Hofmeyer Street, Geduld Extension, Springs, Gauteng ("the Property") is
hereby terminated.
2. The respondent shall have the first option to acquire the a pplicant 's 50%
undivided share in the property, subject to the following conditions:
2.1. The purchase price shall be determined by an independent valuer
appointed by agreement between the parties within 30 days of this order ,
or failing agreement, by an independent valuer appointed by the
Chairperson of the South African Institute of Valuers , with the costs for
such an appointment to be shared equally between the parties.
2.2. The respondent shall deduct 50% of the expenses relating to the bond
registration and transfer, the deposit paid, and the rates and taxes from
9 the buy -out price. The respondent may not deduct bond instalments,
consumption charges or routine maintenance payments.
2.3. The respondent must secure financing and initiate the transfer of the
applicant 's share within 30 days from the valuation date.
2.4. Upon transfer, the applicant shall be fully released from all liabilities
related to the existing mortgage bond.
2.5. The respondent shall bear all transfer and bond registration costs arising
from acquiring the applicant 's share.
3. If the r espondent does not exercise the buy -out option within 60 days, the
property shall be placed on the open market for sale at a fair and reasonable
market -related price on the following terms:
3.1. Each party shall cooperate with the other regarding the sale, particularly
with the appointment of an estate agent to sell the property at the highest
and reasonable offer . If the parties cannot agree on an estate agent,
each party shall appoint one.
3.2. Each party shall cooperate with the appointed estate agent (s) in the
viewing of the property by any prospective purchaser, sign all such
documents required and do all things necessary in order to transfer registration of the property in the name of any purchaser.
3.3. The proceeds of the sale of the property shall first be paid to the
bondholder for the amount outstanding on the mortgage bond registered
against the title deed of the property.
3.4. The following expenses shall be deducted from the proceeds of the sale ,
if any, before division between the parties :
3.4.1. All expenses and costs incurred in the sale of the property ,
including estate agent 's commission, if applicable.
3.4.2. The 50% of municipal rates and taxes, homeowner 's insurance,
and initial purchase costs (transfer and bond registration fees) that
the respondent paid.
10 3.4.3. The bond repayments and maintenance costs shall not be
deducted, as they were incurred exclusively for the benefit of the
respondent.
3.5. The net proceeds after the deductions in 3.4 above shall be divided
equally between the parties.
3.6. If the property is sold at a loss, the shortfall must be shared equally
between the parties after the deductions in 3.4.
4. If the property remains is not sold within six months of this order, then the
Sheriff of the High Court is appointed as receiver and liquidator to sell the
property by way of public auction within four months of their appointment.
4.1. The liquidator shall have the authority to:
4.1.1. Sign all documents necessary to transfer the property to the
purchaser.
4.1.2. Pay the bondholder the amount outstanding on the mortgage bond registered against the title deed.
4.1.3. Settle any outstanding municipal rates and taxes from the sale proceeds.
4.1.4. Deduct reasonable sale- related expenses, including auction costs
and agent commissions.
4.2. The net proceeds of the auction shall be divided equally between the parties, after the deductions outlined in paragraph 3.4.
5. The respondent is to pay the cost of this application, which costs are to be taxed on scale A.
____________________________
WJ du Plessis
Judge of the High Court
Gauteng Division, Johannesburg
11 Heard on: 12 February 2025
Decided on: 17 February 2025
For the applicants :
SPM Vorster instructed by O 'Donoghue & Marais Inc
For the respondents K Blair instructed by JH van Heerden & Cohen
Attorneys