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
FREE STATE DIVISION, BLOEMFONTEIN

Reportable/ Not reportable
Case no: 5010/2024

In the matter between
PETRUS HERODUS HILLEBRAND
BADENHORST N.O. Applicant
and
N[…] G[…] C[…] 1
st Respondent

M[…] A[…] C[…] 2nd Respondent

Neutral citation: Petrus Herodus Hillebrand Badenhorst N.O. v N […] G[…] C[…]
and M […] A[…]l C[…]

Coram: Nemavhidi AJ
Heard: 14 November 2024
Delivered: 27 February 2024
Summary: Divorce – marri age in community of property – joint estate realized by a
court – appointed Receiver and Liquidator – agreement signed by all three parties
– Sections 7(1) and 7(2) of the Divorce Act 70 of 1979.

ORDER

1. The applicant has made out a proper case, and the Court grants the orders
as prayed for in the notice of motion.

2
2. The first respondent shall pay costs on scale A of Rule 67.

JUDGMENT

Nemavhidi AJ
Background
[1] The applicant in casu is the Court appointed liquidator in the joint estate of
the first and second respondent s who were married to one another in community of
property. The applicant is required, by virtue of his appointment , to realize the assets
of the respondent s’ joint estate. The first respondent has refused to sign the
necessary document s to effect transfer of an immovable property, which forms part
of the joint estate ; the applicant accordingly applies for an order that the first
respondent be compelled to sign such documents. The second respondent abides
by the Court’s discretion.
The applicant ’s appointment, function and powers

[2] On 21 February 2023, this Court granted a decree of divorce and ordered
that a receiver and liquidator, agreed to between the parties, will be appointed within 60 days from the date of this order. However, the r espondents were unable to agree
on the identity of the receiver to be appointed and under para 4 of the court order ,
the Legal Practice Council identified the applicant as the receiver (Receiver) who
was to be appointed to divide the r espondents’ joint estate.
[3] Both respondents enter ed into a Receiver and Liquidator Agreement with the
applicant in terms of which t he applicant ’s function and powers were agreed to.
These powers include inter alia :

(i) The applicant is to divide the joint estate or realize the whole joint
estate’s assets, movable and immovable, and for that purpose to sell it or any
part of it, by public auction or by private agreement as may seem most beneficial with the leave of both parties ;
(ii) to bid, collect the debts due to the joint estate, unless the same be
dispersed of by sale;
3

(iii) to pay the liabilities of the joint estate;
(iv) to prepare a final amount between the applicant and the respondent
and divide the assets of the joint estate after payment of its liabilities in accordance with the account.

[4] The Receiver is empowered to distribute and allocate the movable assets of
the joint estate between the Respondents and will not be obliged to realize or sell all
assets of the joint estate. Furthermore, t he Receiver is obliged to collect all assets,
discharge all liabilities and pay to the parties after deduction of his fees and
disbursements , and pay such amount s to the respective parties and any other
amounts due, the residue of the joint estate to each party in equal shares.

[5] The parties shall attend to the signing of all the documents on request in
order to give effect to any of the provisions of this agreement and any requests of the
Receiver.

[6] In Gillingham v Gillingham
1 (Gillingham ) the Court stated:

‘But where they do not agree the duty devolves upon the Court to divide the estate,
and the Court has power to appoint some person to effect the division on its behalf.
Under the general powers which the Court has to appoint curators , it may nominate
and empower some one (whether he is called liquidator, receiver, or curator ---
perhaps curator is the better word) to collect, realise, and divide the estate.’2

[7] It is important to bear in mind that a liquidator’s final account , as alluded to in
the excerpt above, has no final effect and legal force unless enacted i n an order of
Court.3

[8] In Matolo- Dlapu N.O. v NM ,4 the court held:

‘In short the Receiver and Liquidator will step into the shoes of the parties and

1 Gillingham v Gillingham 1904 TS 609 (T).
2 Ibid at 613
3 SSM v PJ N.O. and Another [2023] ZAGPPHC 2024 paras 18 and 46.
4 Matolo -Dlepu N.O. v NM [2021] ZAGPJHC 805.
4
effectively have the power to amass all their financial information. A Receiver and
Liquidator is an officer of the court , who is vested with authority to deal with the
assets of the joint estate under the direc tion of the court. Upon realizing the accrual,
the Receiver and Liquidator has the powers to distribute the accrual between the
parties by way of either selling all the properties to obtain funds or by way of
distribution of the property. The Receiver and Liquidator has ultimate powers and
has the final say on how to divide the assets or the accrual, although the final report
of the Receiver and Liquidator might be taken for review on circumstances where the
Receiver and Liquidator acted mala fide or did not act in the party’s interest.’5

[9] The Receiver is entitled in law to exercise a discretion regarding the manner
in which assets which form part of the joint estate are dealt with. In circumstances
where a receiver is being frustrated in the exercise of his duties, he enjoys the
necessary locus standi to approach the court which appointed him to obtain
directions or other relief regarding the exercise of his power .6
[10] The applicant advised the first respondent that the second respondent was
desirous to purchase her half -share in the property known as 48 William Plaatjie,
Heidedal, Bloemfontein (the property). The first respondent refused to partake in any
negotiations, stating that no agreement could be reached between her and t he
second respondent regarding the division of the joint estate. She suggested that all
assets in the joint estate should be sold and the proceeds divided between them .
Later, the first respondent insisted that property located at Turflaagte be awarded to
her in the division of the joint estate. The property does not form part of the joint
estate and could not be awarded to the first respondent in the distribution of assets.

[11] The first respondent obtained a valuation for the property which amounted to
R740 000.00. The second respondent offered to purchase the first respondent ’s half
share of the property for 50% of the valuation. However, t he first respondent refused.

[12] The applicant approached her several times and she refused to sign
documentation required to proceed with the sale and transfer of the first respondent ’s
undivided half share in the property to the second respondent .


5 Ibid paras 21 -22.
6 Coetzer v Coetzer 1955 (1) PH BI (O).
5
[13] The first respondent has raised spurious grounds of opposition in this
application alleging that the properties should be sold and proceeds thereof be
distributed in equal shares between them . However, s he maintains that she does not
want to sell her undivided half of the property to the second respondent .

[14] If the applicant were to accede to the first respondent ’s demands, the joint
estate would be burdened with avoidable additional expenses as the first
respondent ’s half share in the property is sold at market value to the second
respondent . The first respondent has not offered to purchase the second
respondent ’s undivided half -share of the property and she contends that she cannot
be compelled to sell her half -share to the second respondent .
[15] In Fischer v Ubomi Ushishi Trading and Others
7 the Supreme Court of
Appeal identified the rights acquired under the divorce order and/or the order for the division of the joint estate and held that ‘ Properly understood, this was a personal
right against Mr Haynes to compel transfer of his half share in the property into her name. ’
8

[16] What is required by a spouse upon the dissolution of a marriage in
community of property, unless the Court grants a forfeiture order, is thus only a
personal right to claim transfer of half of the value of the joint estate and alternatively,
in the case of immovable property, the right to claim transfer of half of such property.
The respondent s in cas u have no interest in future co- ownership of the property.
Argument raised by the first respondent
[17] The first respondent alleges that she had initially accepted a proposal inviting
her to sell her half share of the property to the second respondent on condition that
he sells her his half share of the Turflaagte property to her. However, w hen the first
respondent learnt that the Turflaagte property was no longer forming part of the joint
estate, she proposed to the Receiver that everything in the joint estate be sold by
public auction and the proceeds thereof be distributed evenly between them . She
reached this decision because she is of the view that the liquidator is bullying her
because she is a woman. In addition, she maintains that she has no legal obligation

7 Fischer v Ubomi Ushishi Trading and Others [2018] ZASCA 154; 2019 (2) SA 117 (SCA).
8 Ibid para 30.
6
to sell her half -share to the second respondent .

[18] In response, t he first respondent states that if the second respondent wanted
to purchase her half share, he should have made this application out of her own
accord.
Court ruling
[19] Section s 17(1) and (2) of the Divorce Act 70 of 1979 states that a Court
which grants a decree of divorce may, either per a writ ten agreement entered by the
parties, or mero motu in the absence of such an agreement , make any order
regarding the division of the assets of the parties. In terms of Gillingham , the Court
has the common law power to appoint a receiver or liquidator to realise and divide
the assets of the joint estate on the Court’s behalf. [20] The respondent s entered into a Receiver and Liquidator Agreement with the
applicant in terms of which the applicant ’s function and powers were identified and
agreed to. Those powers are referred to in paragraph 3 above.

[21] What is acquired by a spouse upon the dissolution of the marriage in
community of property, unless the court grants a forfeiture order , is a personal right
to claim a transfer of half of the value of the joint estate, in the case of an immovable
property, the right to claim transfer of half of such property. Since both respondents
have no interest in future co- ownership of the property, it will be fair that any of the
parties may offer to purchase the undivided half share of the other spouse . The first
respondent has no right to dictate to the Receiver to whom her half -share ought to be
sold.
[22] In the result , the following order is made:

1. The applicant has made out a proper case and the Court grants the orders
as prayed for in the notice of motion.

2. The first respondent to pay costs on S cale A of Rule 67.

Nemavhidi AJ
7

Appearances
For the Appellant: Adv R van der Merwe
Instructed by: Badenhorst Attorneys
Bloemfontein

For the The first respondent : Adv N Nyezi
Instructed by: Rampai Attorneys
Bloemfontein