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IN THE HIGH COURT OF SOUTH AFRICA
(EASTE RN CAPE DIVISION, MAKHANDA

CASE NO. CA 139/2023

Date of hearing : 22 November 2024
Date delivered : 13 May 2025

In the matter between:

J[...] G[...] C[...] Appellant

And

G[...] A[...] C[...] Respondent

_________________________________________________________________ __

JUDGMENT
_____________________________________________ ____________________ __

MAJIKI J:

[1] The appellant appeals against the whole judgment of the Regional Court,
Port Elizabeth. In the main , she was found to have breached the terms of the deed of
settlem ent which was part of her divorce order. As a result, she was ordered to

permit the sale of property known as Erf 3[...], Hunters Retreat, Sherwood, Port
Elizabeth (the property ). The property is jointly owned by the appellant and the
respondent by virtue of their marriage of 35 (thirty -five) year s, in community of
property and profit and loss. The said marriage ended in divorce on 24 February
2022. The deed of settlem ent (in which the appellant was cited as the defendant and
the respondent was cited as the plaintiff ) gave them respective exclusive rights , with
conditions , to the property. The appellant had been in occupation of the main
dwelling in the property in terms thereof. The respondent had a right to occupy the
second dwelling , the flat and any income derived from its rental. In the course of
time, after divorce, the parties had obtained recipro cal orders in terms of section 6 of
the Domest ic Violence Act 116 of 1998 (protection orders) and the respondent
moved out of the second dwelling . The appeal is opposed by the respondent.

[2] The respondent in the court a quo launche d an application in the main
seeking the following orders: -

‘1. That the first respondent be compelled to permit the sale of the
property known as Erf 3[...], Hunters Retreat, Sherwood, Port Elizabeth
Municipality in the province of the Eastern Cape which is situated at 4 […]
H[...] Road, Sherwood, Gqeberha, (the ‘Property’)
IN THE ALTERNATIVE:
That it is declared that the joint ownership of the parties in the Property is
terminated, in terms of the actio communi dividundo;
2. That, unless the applicant and first respondent reach agreement in
writing within 1 (ONE) month from date of the order, on all aspects related to
the sale of the Property and/or termination of the co -ownership, then and in
such event , Joelene Brown of BBV Attorneys shall b e appointed as liquidator
(the ‘liquidator)
3. …………………………………………………………………………………
4. …………………………………………………………………………………
4.1…………………………………………………………………………………… …
4.2…………………………………………………………………………………… …
4.3……………………………………………………………………… .
4.4 That immediately after the registration of the transfer of the Property
into a purchaser’s name and after all costs relating to the marketing, sale and
transfer of the Property including (but without limitation) estate agents’
commission, any amount which may be owing to the second respondent (in
terms of the Loan Agreement and Mortgage Bond) and the liquidator’s fees
have been paid: -
4.4.1 A 50% portion of the net proceeds of the sale of the Property is to be
paid to the applicant; and
4.4.2 A 50% portion of the net proceeds of the sale of the property is to be
paid to the first respondent, subject to paragraph 9 belo w …’

[3] The grounds of appeal are summarily as follows:

3.1 The magistrate erred in finding that the respondent’s unfette red right to
occupation had been breached in that: -

3.1.1 The court’s findings are silent in respect of how or based on
which facts the court concluded that there was a breach of the
agreement, alternatively, the court made conclusions that were not
logically related to the preceding facts.

3.1.2 The court incorrectly f ound that the existence of reciprocal
prote ction orders , setting out boundaries of movement by the appellant
and the respondent , inhibited the respondent’s right to unfettered
occupation.

3.1.3 The court failed to consider that the property has two main gates
and the respondent always had access to the gate to the second
dwelling and it was under his control.

3.2 The magistrate erre d in apply ing principles and pol icy consi derations in
the matrimonial context to parties after divorce , including history of verbal
abuse in the family unit . Fur ther, the magistrate applied the clean break
principle where parties had an agreement in respect of the assets upon
divorce.

3.3 The magistrate erred in granting an or der that has an effect of varying
the terms of a previous order , without the respondent having met the
requirements for the variation of the order. The ma gistrate also failed to have
regard to the principle of finality of settlement agreements that have be en
made court orders.

3.4 The magistrate erred by in disallowing the admission of the appellant’s
further affidavit , setting out events that occurred after the filing of the replying
affidavit , with evidence that contradicts the findings of the court, thereby
prejudicing th e appellant.

3.5 The magistrate erred in failing to apply the Plascon Evans principle in
determining factual disputes in the papers.

After the filing of the notice of appeal t he magistrate furnished further reasons for
judgment . Among others that, the appellant had confirmed the change of remote
control , by so doing the respondent was prevented from entering the premise s.
Consequently, there was a further ground of app eal that was raised in the heads of
argument.

The appellant submitted that, a month after divorce , the respondent had sought to
have the property sold and had stated that the application would be launched ,
objectively breach was not reason for the application .

BACKGROUND

[4] It is common caus e that on 4 December 1986 the litigants married each other
in community of property . They have two major children . The property was re gistered
in their names on 10 December 20 14, a mortgage bond was re gistered over the
property in favour of the First National Bank. Clause 2 of the deed of settlement is
the subject of the dispute between the litigants .

[5] It is also common cause that at the time of the divorce and after , the
relationship between the litigants became acrimonious. That resulted them in
obtaining reciprocal protection orders . The appellant cried of the respondent’s verbal,
emotional and psychological abuse whilst the respondent similarly complained of a
tumultuous relationship . Furthermore, correspondence was exchanged between
them , setting out various complaints against each other regarding access to the
property. The relevant contents of the correspondence will be referred to later in the
judgment.

[6] Clause s 2 and 3 of the deed of settlement read: -

‘2.1) The immovable property situated at 4[...] H[...] Road, Sherwood,
Gqeberha shall not be sold unless a mutual agreement to sell the property
has been reached.

2.2) The plaintiff will continue to be solely liable for the mortgage/bond
payments, municipal rates, taxes and water consumption charges in respect
of the property.

2.3) The defendant will have a full, unfettered right to occupy the main
dwelling on the prope rty until her death or until the sale of the property,
subject to the following condition: -

(a) The defendant will not be permitted to allow a romantic partner to take
occupation with her in the main dwelling.

2.4) The plaintiff shall have an exclusive righ t to any income derived from
the renting out of the second dwelling, and will have a full, unfettered right to
occupy the second dwelling (the flat) on the property until his death or the sale
of the property, subject to the following condition: -

(a) The plaintiff will not be permitted to allow a romantic partner to take
occupa ncy with him in the second dwelling ( the flat).

2.5) If either party breaches the above conditions imposed on their rights of
occupation in respect of the property, then the other party may demand that
the property be sold. Should a consensus to sell the property not be reached,
the aggrieved party shall be entitled to an order by the Magistrates’ court that
has jurisdiction, to compel the other party to permit the sale and do whatever
necessary to effect the registration of transfer of the property.
Notwithstanding the value of the property, both parties consent to the
jurisdiction of the magistrates’ court in the event that it is necessary to enforce
the rights contained in this clause.

B. MOVABLE PROPERTY

2.6) The motor vehicles registered in each party’s name at the date of this
agreement shall become the sole and exclusive property in such party’s
individual and separate estate, and the other party shall not have any cla m
whatsoever to any such vehicles after finalization of the divorce. It is
expressly recorded that the Mecedes Ben z with registration numbers F […]
and the Renault with registration numbers D […] will become the sole and
exclusive property of th e defendant.

2.7) The furniture and other household items will be distributed upon
divorce as per the table in annexure ‘B’ hereto. Items appearing in the column
on the left will become the property of the plaintiff and the items appearing in
the column on the right will become the property of the defendant.

3. SPOUSAL MAINTENANCE AND SUPPORT

3.1) The plaintiff will pay the defendant an amount of R7 000.00 (seven
thousand rand) per month from 1 March 2022, not later than the 7th day of
every month, until the date of the defendant’s death.

3.2) The amount in 3.1 above will increase by the rate of 5% (five percent)
every 12 (twelve months, with the first increase taking effect on 1 March 20 03.

3.3) The defendant will remain on the medical aid of the plaintiff until the
date of her death.

3.4) The plaintiff will be liable to pay for the insurance of the two motor
vehicles of the defendant, namely the Mercedes Benz with registration
number F […] and the Renault with registration number D […], for as long as
the defendant remains the lawful owner of the vehicles, provided that there is
no prohibition imposed by insurers making it impossible for the plaintiff to
insure the vehicles due to the age thereof. In the event that it is impossible to
insure the vehicles comprehensively, the vehicles shall be insured against
third party liability.

3.5) The defendant will remain as a 50% (fifty percent) beneficiary on the
life policy of the plaintiff. ’

[7] As it appears in clau ses 2.3 and 2.4 the property consists of the main dwelling
and the flat . The respondent and one child, A[...] occupied the flat , they had their
keys for the access to the flat .

[8] In the court a quo the respondent had sought the orders on t wo grounds ; that
the appellant breached conditions pertaining to his rights of occupation, set out in the
deed of settlement. Further, that the actio communi dividundo entitled him to obtain
an order terminating the joint ownership in the property . He no longer wished to be a
joint owner of the property , that was communicated to the appellant in the letter s of 8
June 2022 and 1 Sep tember 2022. In terms thereof no co -owner of a property is
obliged to remain a co -owner against his /her will. If the co -owners were unable to
agree to the method of division of the property, then either party could approach
court for an order terminating joint ownership .

[9] According to the respondent, the correspondence between respective
attorneys record ed how the appellant denied him unfettered occupation to the
second dwelling. He was of the view that the letter from the appellant’s attorneys
dated 22 March 2022 sought confirmation of when he was to vacate the property .
However, the said letter specifically referred to the main dwelling. On 25 March 2022
his attorney ’s respon se, among others, recorded that the deed of settlement neither
gave the appellant exclusive occupation al rights to the propert y nor d id it indicate
that the respondent should vacate the property; the appellant ha d, without
justification , refused numerous requests from the respondent to have the property
sold; and accordingly, the sale of the property by mutual agreement was therefore
unattainable. The appellant’s attorney’s response confirmed that she did not agree to
the sale of the property and she intended to exercise her lifelong right to occupy the
main dwelling .

[10] According to the respondent by 8 June 2022 it had become completely
intolerable for him to reside in the property due to the appellant’s harassment and
psychological abuse. That culminated in them obtaining reciprocal protection orders.
He had to vacate the property and he sought alternate accommodation. The
respondent gave the appellant an option to purchase the respondent’s share in the
property at the then market value . On 2 July the appellant unilaterally changed the
remote frequency of the gate to the property , he could not access the property, even
though he had a right to the second dwelling. He sent an email directly to the
appellant stating, ‘ the front house us [sic] exclusively mine I hereby highlight that I
will not tollirate [sic] any interference to [sic] my right or I will institute action.

[11] The appellant responded on the same da te to the said letter. The contents of
the said letter were at the centre of the respondent’s allegation of breach of the deed
of settlement in the court a quo . The same contents largely formed the basis of the
magistrate’s finding that the respondent’s right to occupy the property had been
interfered with . It is necessary to state the relevant parts of the said letter , from the
second paragraph it states: -

‘As previously communicated you have been advised to seize communicating
directly to myself without working through my legal representation , again
kindly adhere to this request .

The occupant of the “carport/garage/dwelling ” (our biological son) has
evacuated the “front house” and according to my assumption, as no form of
communication was received from my legal representation that Mr A C[...] is
required to return for whatever reason he may deem nece ssary . As per “Final
Decree of Divorce ” I have taken the lawful precautions to safeguard the
property by limiting access to the property.

This was done in the best interest since about 23:45 on Friday night the
01/07/2022 an unknown person entered the property and I had to get
assistance from my neighb our. As per “Final Decree of Divorce ” access is not
in any form denied and as stated kindly make a n appointment in advance
should you require to revisit the dwelling .

Any form of forced entry will be seen as a criminal act and dealt with
accordingly …’

[12] The appellant filed a counter -application , together with her answering
affidavit. In the counter -application , the appellant in the main, sought a declaratory
order for a lifelong usufruct or habitio to be registered in her favour , against the title
deed of the property. In the alternative, she sought that an actuarial scientist be
appointed at the respondent’s cost, to calculat e and submit a report on the value of
her right to occupy the main dwelling over the remaining term of her life expectancy.
Thereafter, the respondent be ordered to pay her the amount so determined, prior to
the sale of the property . In addition to that, a fter the sale of the property, she would
be entitled to half the value of the property . In the f urther alternative, that a receiver
and liquidator be appointed for the joint estate as at the date of divorce, with certain
mentioned powers, with a view that the then joint estate be divided between the
appellant and the respondent.

[13] In answer to the main application , the a ppellant firstly raised points of law,
stating that the respondent was not entitled to the relief he sought. Firstly, that the
court a quo did not have jurisdiction to grant the relief terminating the joint ownership
in terms of the actio communi dividundo . The respondent’s application was not
instituted under divorce legislation. It constituted new litigation, the value of the
property was more than the court’s jurisdictional limits. Further, if the relief were to
be granted, it would amount to an irregul ar variation of clause 3 of the settlement
agreement, which was subsequently made a court order. The law is not settled on
whether the actio communi divi dundo may overrule an order of court that expressly
states that the immovable property shall not be sold, unless a mutual agreement to
sell the property had been reached. The court a quo is not competent to develop
common law.

[14] On the merits she averred that she agreed to the terms of the deed of
settlement , recorded in paragraph 6 above , because sh e was under the impression
that, in addition to the monthly financial support and medical aid cover, she would
have a lifelong right of occupation to the property . She calculate d her right to occupy
the property to be about R12,000 .00 (twelve thousand rand) a month , that being the
market related rental for similar properties . As a result, she did not claim the assets
of the joint estate which included five vehicles, the property, the respondent’s
members interest in Cras Security Services CC and any other investments the
respondent might have had at the time of divorce. She received irregular
commission -based earnings from her employment as a n estate agent , which
earnings she entirely spent towards the househol d.

[15] The respondent had abused her from the time he had an extra marital affair ,
which conduct became worse after the divorce. The respondent was then still living
in the main dwelling . She believed that he wanted her to leave the property, even
then. Eight days after divorce she applied for a protection order, once the respondent
received it, he also applied for a protection order against her. In terms of the
protection order she obtained , the respondent ha d no access to the main dwelling.
The respondent made false allegations against her, including that she was having an
affair, he duplicated a screenshot of her WhatsApp conversation with one Dawie to
give the impression that she was in constant contact with the said man. He also
denied paternity of their adult daughter born from their marriage, Annette , and falsely
accused the appellant ’s father , stating that he used to abuse the respondent by
withdrawing money from the latter’s bank account.

[16] The resp ondent and their son , A[...], had keys of the flat and the remote
control to the gate they used to access the flat . She also viewed the application as a
continuation of the respondent’s attempt to create a false narrative of the true
circumstances between them. The respondent also incited A[...] to commit acts of
domestic violence against her, she had to obtain a prot ection order against A[...] too.

[17] Furthermore, it would be unjust and prejudicial to her , considering her rights
flowing from her marriage in community of property, if the court would grant the relief
sought against her, in respect of the property bu t exclude the value of the remaining
assets of the joint estate, at the time of divorce . In the conditional counter -application
she prayed for just and equitable relief. Furthermore, the respondent’s application
seeking the sale of the property conflicts with the principle that parties have a duty to
obey court orders. His insistence to sell the property also constitutes contempt of the
court order.

[18] According to the appellant, the court a quo was empowered to determine
whether clause 2 of the deed of settlement had been breached only. She disputed
that she breached any of the clauses of the deed of settlement, she neither lived with
a romantic partner nor interfered with the respondent’s unfettered righ t to occ upy the
flat. She had, for a day or two, reprogrammed one of the automated main sliding
gates to the property because there had been a security breach at the property.
However, she did not interfere with the second main gate giving access to the flat.
She did not have a key to that gate and the flat . A[...] and the respondent no longer
resided in the premises, the respondent left the flat on 6 April 2022 to live with a
romantic partner . The flat would only secure him with a place of residence, in the
even t he would face financial hardship or break up with his girlfriend.

[19] On 1 July 2022 at about 23h45 she found the one gate to the property w ide
open with the security lights in the garden switched off or disconnected. The garden
was very dark and she heard someone running in the garden. She lived alone and
had to wake up her neighbour , Mr Van Niekerk . Mr Van Niekerk patrolled her garden
and saw n o one, but there was a tall man who stood down the road staring in the
direction of the property . Mr Van Niekerk filed a confirmatory affidavit in this regard.
She was concerned that the remote m ight have fallen into the hands of a person who
could cause h arm to her or the property . The next morning the respondent attempted
to enter the premises through the gate who se remote had been reprogrammed,
which she found suspicious. The respondent could have and was advised to obtain
the key for the second ga te. All this account was furnished by her legal
representatives in a letter dated 7 July 2022.

[20] In her reply ing affidavit to the respondent’s answer to her counter -application ,
she expanded on her submission s and stated that the relief sought by the
respondent in the main application was contrary to the one already given in the
divorce action, it constituted a re -opening of that action . The said relief should also
be met with the fate of the principle of res judicata . It was only if the court made an
order in favour of the r espondent in the main application that she sought conditional
relief in the counter application , on just and equitable grounds , by considering the
surrounding circumstances and implication s of having the matter reopened at to the
instance of the respondent .

[21] She also replied that the deed of settlement was annexed to the divorce
summons, was initially drafted by the respondent ’s attorneys of record. The final
deed of settlement was substantively in the same or similar terms to the said initial
draft. The respondent had created an impression that he would not attempt to
deprive her of her rights to occu pation of the premises until they both agreed to sell
the property . He said he would vacate the premises and continue to pay the
expenses relating to the property.

[22] He misrepresented t he debts of the joint estate and the value of his interest in
the business to her . He cornered her t o agree to the terms of the settlement
agreement . She the n gave instructions to her le gal representative that the divorce
and settlement agreement had to be finalised expeditiously. If sale was an option ,
the appointment of an estate agent would have been provided for , considering that
she was also an estate agent , she would have insisted on a term for sole mandate .
His threats, verbal and emotional abuse had not ceased.

[23] In retrospect, she realised that the respondent always intended to have the
property sold shortly after divorce . That is supported by the fact that o n 25 April 2022
in an answering affidavit to the appellant’s application for protection order, the
respondent recorded that he was the sole owner of the propert y and the deed of
settlement only conferred the appellant with the right to occupy the main dwelling .
Further , he said he gave his legal representative an instruction to apply for an order
for the sale of the property.

[24] Regarding the consent of the bond holder to the registration of her personal
right, she said that she would not be prevented from seeking its consent
alternatively , if the court were to grant th e relief , it would have made an order that the
registration was subject to her obtaining the said consent. The respondent could also
register his personal right to the second dwelling. He could even sue her for loss of
income if he had a basis to state that she was deprivin g him of renting out the flat.
Her calculation of the value of rental of the main dwelling was done by a qualified
mathematician. As for unlawful enrichm ent, it would not apply where there was fair
value compensation in exchange for the abandonment of a pe rsonal right .

[25] Regarding the respondent’s reference to A[...], A[...] would not be impartial , he
was employed by and financially reliant on the respondent . Her relationship with
A[...] deteriorated to such an extent that he assaulted her during 2022 . His affidavit
was introduced as new evidence in the replying affidavit and she was advised that
she had no right to a further reply .

[26] In his replying affidavit the respondent first addressed the appellant’s counter -
application . He raised several points in limine and subsequently provided his
answers . The first point in limine relates to the issue of the division of the joint estate ,
he said it is res judicata . The deed of settlement was entered into voluntarily and it
was subsequently made an order of the court. The appellant could not revisit divorce
proceedings. The second one relates to the registration of a usufruct or habitio
agains t the property . The bondholder had not given consent in terms of section 65(3)
of the Deeds Registries Act 47 of 1937. The relief is therefore incompetent. Thirdly,
the usufruct could not be registered without considering his rights of ownership and
occupa tion in the flat.

[27] The fourth one is that the appellant would not be entitled to further
compensatio n for her right to occupy. The property’s proceeds of sale ought to be
divided e qually only. The mutual rights to occupy the property would terminate upon
the sale of the property . Alternatively, he would also b e entitled to further
compensation for his right of occupation to the flatlet , otherwise the appellant would
be unfairly enriched. Furthermore, the appellant did not furnish any expert evidence
to support the amount she claimed to be in respect the of the monthly rental in
respect of the main dwelling.

[28] Regarding the appellant’s points in limine , he stated that in the deed of
settlement they both consented t o the jurisdiction of the regional court , if one of them
refused to consent to the sale of the property. Their dispute arose post-divorce ,
about the terms of the deed of settlement. Furthermore, h e disputed that the
magistrate’s order varied the deed of settlement, the actio communi dividundo is a
common law remedy that was available to him as a co -owner. It is often relied upon
in post -divorce litigation where parties remain ed co-owners of a property, but
subsequently only one party wanted to sell the pr operty , the other was refusing. It
does not amount to contempt of court. He denied that the appellant would suffer any
prejudice, she would get her share of the proceeds of sale. However, if the court
would grant the relief sought by the appellant in the counter -application , he would be
prejudiced. The said relief would be unjust , whilst the relief sought by him was fair ,
just and equitable.

[29] He said he am assed the ass ets in the joint estate. The appellant spent her
earnings on herself and her pleasures. Noteworthy, A[...], in his supporting affidavit
annex ed to his replying affidavit , said he contributed financially, towards the second
dwelling . The respondent denied that he misled the appellant in any way or enticed
her with lifelong occupation so that she would not seek the division of the joint
estate. The deed of settlement was drafted by her legal representatives. It was
beneficial to her, in addition to the right to occupation , she received 2 (two) luxury
vehicles, he paid for their insurance , he also paid spousal maintenance as appearing
in paragraph 6 (six) above . There was no basis for the launch of proceedings for
contempt of court order.

[30] The appellant made it impossible for him or A[...] to live in the flat , she was
extremely abusive but that was settled through protection orders that were finalised
by mu tual consent. He denied that the appellant did not interfere with the second
main gate giving access to the flat, he said she padlocked th e side gate and did not
provide him with a key and had, on several occasions, threatened to open a criminal
case agains t him if he attempted to access the propert y. Regarding what the
appellant stated that, she as an estate agent would have sought sole mandate , that
would have been untenable because she enjoy ed living in main dwelling of the
property , without paying for anything.

[31] The affidavit b y A[...] is more about his own relationship with the appellant. It
is also not relevant to the issues between the litigants in the appeal. The magistrate
made no reference to it in her judgment as well .

THE FINDINGS OF THE COURT A QUO

[32] The magistrate found that the respondent established that the appellant had
breached the respondent’s unfettered right of occupation provided for in the deed of
settlement. In the main judgment it appears that the magistrate based the said
finding on the fact that there were reciprocal protection orders , the magistrate
reasoned that the protection order against that respondent restricted his right of
occupation. In making the said finding the magistrate also linked that with the need
to apply the clean break principle that, there was a need for finality in litigation. The
magistrate set out the principle in Plascon -Evans. Thereafter, the magistrate quoted
from a decision in Mahala v Nkombombini and another 2006 (5) SA 524 (SE) as
follows:

‘that approach (Plascon -Evans) is possibly not entirely satisfactory for a
matter such as the present… a more robust approach is sometimes required
and the court should then grant the order if it is satisfied that there is sufficient
clarity regarding the issues to be resolved f or the court to make the order
prayed for’.

The magistrate concluded that the appellant had confirmed that she changed the
remote for security reasons, that resulted in the respondent not being able to access
the property.

[33] However, in the reasons for judgment (supplied after the filing of the notice of
appeal ) the magistrate , after restating the principle in Pla scon-Evans , stated that the
appellant had confirmed that she changed the remote , there was no need for referral
of the matter for the hearing of oral evidence. That alone showed the breach of the
respondent ’s unfettered right of occupation, the reciprocal protection orders further
exacerbated the breach.

[34] In the main judgment the magistrate found that because the appellant had
alleged that there was continuous verbal and domestic abuse, in the matrimonial
context, following policy considerations , the protection orders were destructive to
family life. In answer to the ground of appeal that th e magistrate had applied the
clean break principle post -divorce, the magistrate in the reasons for judgment stated
that the deed of settlement arose from the divorce, the principles relating to marriage
and divorce could not be separated.

[35] The magis trate’s reasoning in the main judgment, was based on the breach
of right to occupy the property, followed by demand to sell and when there was no
consensus. I n the reasons for judgment the magistrate stated that since the litigants
were divorced, they were joint owners of the property, the respondent could have
been successful even under actio communi dividundo. Finally, regarding the failure
to admit the supplementary affidavit, the magistrate said there was no formal
application for its admission in terms of rule 55 (1)(a) of the Magistrates Court Act 32
of 1944.

[36] The issue for determination in the appeal is whether the magistrate ’s finding
that the appellant had breached the terms of the deed of settlement was cor rect.

EVALUATION

[37] The magistrate and both counsel in this court , correctly set out the legal
principles relevant to interpretation . The magistrate however, i n the application of
those principles was of the view that , in the matrimonial context , policy
considerations come into play. She considered the application of the clean break
principle and referred to the parties’ reciprocal protection orders . Ultimately, the
court a quo found that the respondent’s ‘right to unfettered occupation ’ had been
breached and granted an order that ‘the notice of motion is accordingly successful ’.

[38] The interpretation of clauses 2.3 to 2.5 of the deed of settlement is
fundamental to the appeal.

[39] In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA
593 (SCA) at paragraphs 18 the court stated:

‘Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used in the light of
the ordinary rules of grammar and syntax; the context in which the provision
appears; the apparent purpose to which it is directed and the material known
to those responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the light of all these
factors.15 The process is objective not subjective. A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document. Judges must be alert to,
and guard against, the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To do so in
regard to a statute or statutory instrument is to cross the divide between
interpretation and legislation. In a contractual context it is to make a contract
for the parties other than the one they in fact made. The ‘inevit able point of
departure is the language of the provision itself’,16 read in context and having
regard to the purpose of the provision and the background to the preparation
and production of the document. ’

[40] In Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) the Constitutional
Court, at paragraph [28], in dealing wit h the interpretation of statutes said the
following:

‘A fundamental tenet of statutory interpretation is that the words in a statute
must be given their ordinary grammatical meaning, unless to do so would
result in an absurdity. There are three important interrelated riders to this
general principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is,
where reasonably possible, legi slative provisions ought to be interpreted to
preserve their constitutional validity. This proviso to the general principle is
closely related to the purposive approach referred to in (a). ’

[41] The Supreme Court of Appeal, in Capitec Bank Holdings Limit ed and another
v Coral Lagoon Investments 194 (Pty) Ltd and others 2022 (1) SA 100 (SCA)
cautioned against utilising the princip les enunciated in Endumeni Municipality as an
open -ended permission to pursue undisciplined and self -serving interpretations. The
court went on further at paragraph 50 to state :

‘Endumeni simply gives expression to the view that the words and concepts
used in a contract and their relationship to the external world are not self -
defining. The case and its progeny emphasise that the meaning of a
contested term of a contract (or provision in a statute) is properly understood
not simply by selecting standard definitions of partic ular words, often taken
from dictionaries, but by understanding the words and sentences that
comprise the contested term as they fit into the larger structure of the
agreement, its context and purpose. Meaning is ultimately the most
compelling and coherent account the interpreter can provide, making use of
these sources of interpretation. It is not a partial selection of interpretational
materials directed at a predetermined result. ’

[42] At paragraph [51] , in the context of contracts, the court commented:

‘Most contracts, and particularly commercial contracts, are constructed with a
design in mind, and their architects choose words and concepts to give effect
to that design. For this reason, interpretation begins with the text and its
structure. They have a gravitational pull that is important. The proposition that
context is everything is not a licence to contend for meanings unmoored in the
text and its structure. Rather, context and purpose may be used t o elucidate
the text. ’

[43] Clauses 2.3 to 2.5 of the deed of settlement regulated the parties’ living
arrangements , post-divorce . Whilst the rights flowing from clauses 2. 3 and 2.4 differ,
the clauses, in their construction, are identical. Accordingly, f or the purposes of this
analysis , it is necessary to repeat only clause 2.3 :

‘2.3) The Defendant will have a full, unfettered right to occupy the main
dwelling on the property until her death or until the sale of the property,
subject to the following condition :-
a) The Defendant will not be permitted to allow a romanic partner to take
occupancy with her in the main dwelling. ’ [Own emphasis.]

[44] Clause 2.5 , in turn, provides that if either party breaches “ the above
conditions imposed on their rights of occupation ”, the other party may demand that
the property be sold.

[45] Plainly, two aspects arise. Firstly, t he parties’ respective rights of occupation
flowing from clauses 2.3 and 2.4 ; and secondly, the express conditions imposed on
those rights .

[46] If regard is had to the plain wording of the clauses, read in context , and
mindful of the principles of interpretation as set out above, this court must agree with
the appellant that the condition imposed on the parties’ respective rights of
occupation , is the prohibition of a particular party’s occupation together with a
romantic partner.

[47] The wording of clause 2.5 is purposive. The deed of settlement envisaged a
situation where two people, involved in an acrimonious divorce, would thereafter
reside on the same property, albeit in separate dwellings. Clause 2.5 affords the
parties a recipro cal remedy to demand that the property be sold if the other party
takes up residence with a new romantic partner . The parties must have viewed that
as irreconcilable with their envisaged living arrangements. Had it been the parties’
intention to trigger t he invocation of clause 2.5 upon a breach of the right of
occupation, clause 2.5 would have stated as much.

[48] The alleged breach relied upon by the respondent pertained to his right of
occupation only. That being the case, the remedy pr ovided for in clause 2.5 was not
available to him. On this basis alone, the appeal must succeed.

[49] Even if regard is also had to the appellant’s act of changing the remote, it
must immediately be said that respondent, failed to establish a breach of his right to
occupy the second dwelling.

[50] The respondent in the founding affidavit in support of his case relied mostly on
the correspondence exchanged between or on behalf of the appellant and him. At
first, he believ ed that in the letter of 22 March 2022 the appellant sought confirmation
of when he was to vacate the property when she had referred to the second
dwelling. He also relied on the letter that the magistrate also put much emphasis on,
advising that she changed the remote frequency of the gate to the property. He
concluded that his unfettered access to the property was interfered with, even
though he had a right to the second dwelling. From the repl ying affidavit it became
common cause that the flat could be accessed through another gate. He however
said the appellant had locked it with a padlock.

[51] In the appellant ’s letter she said she took lawful precautions to safeguard the
property by limit ing access to the property, she did so in the best interest , because of
the incident that happened. Nevertheless, access was not in any form denied , she
requested the respondent to make an appointment in advance if he wished to visit
the dwelling . The appellant’s version in the answering affidavit was that she
reprogrammed one of the automated main sliding gates to the property because
there had been a security breach at the property. The submission on behalf of the
respondent was that, the said ave rment was a measure to manage and fix what was
stated in the letter. However, from the respondent’s application for interdict and the
replying affidavit in the court a quo, the issue of the existence of an alternate
entrance became settled.

[52] The magistrate made no reference to the fact that the two versions were
inconsistent in the judgment. The magistrate, incorrectly in my view, considered the
protection order and the fact that the appellant in her letter had said she changed the
remote frequency and concluded that she denied the respondent access to the
property. Firstly, the magistrate did not have regard to everything that was said in the
said letter together with the context thereof. Furthermore , it is not clear as to what
extent th e magistrate ha d regard to the appellant’s version .

[53] Even the magistrate’s reasoning in relation to the clean break principle, which
will be reverted to later, seems to be based on the existence of the reciprocal
protection orders. The respondent’s case was never that the existence of protection
orders had an effect on his right of occupation. In his replying affidavit in the
application for protection order , he included a prayer that the appellant should be
ordered not to enter the second gate to gain access to the parking associated with
the flat. Contrary to the magistrate’s reasoning i n his replying affidavit in the court a
quo, he criticized the appellant f or bringing up the merits of the protection order, in
his view, the issues raised in the protection order applications were resolved by the
granting of reciprocal protection orders. The appellant, in her answering affidavit to
the application in the court a quo, said, she applied for a protection order eight days
after divorce, the respondent was still leaving in the main dwelling. In the said
proceedings she had sought that the respondent should not enter the main dwelling
or patio between the two dwelling s.

[54] The magistrate correctly referred to the legal principle in Plascon -Evans
Paints Ltd v Van Riebeek Paints (Pty) Ltd 1984 (2) All SA 366 (A) paragraph 9 in
relation to resolving disputes of fact as follows:

‘ It is correct that, where in proceedings on notice of motion disputes of fact
have arisen on the affidavits, a final order, whether it be an interdict or some
other form of relief, may be granted if those facts averred in the applicant's
affidavits which have been admitted by the respondent, together with the facts
alleged by the respondent, justify such an order. The power of the court to
give such final relief on the papers before it is, however, not confined to such
a situation. In certain instances the denial by respondent of a fact alleged by
the applicant may not be such as to raise a real, genuine or bona fide dispute
of fact…’

However, above principle was not applied.

[55] Access to the property ought not to have been confined to the main dwelling
only, but the finding be inclusive of the flat. The magistrate ought to have
pronounced on the appellant’s version about not denying access to the flat and state
reasons for rej ecting that version. The respondent agreed that the flat had a
separat e gate. Despite the communication in the letter, which this court views as
having been a matter of poor articulation, the appellant consistently averred that she
did not interfere with th e flat entrance gate. She did not even have the key to that
gate. Furthermore, there was subsequent communication that advised the
respondent to obtain and use the key to the said gate to access the flat. These
being motion proceedings, this court finds no basis for rejecting her version . This
court has no reason to hes itate to accept it. Therefore, on the application of the
principle in Plascon Evans the respondent’s access in terms of the deed of
settlement could not h ave been breached.

[56] The magistrate erred in over -emphasizing the part of the appellant’s letter that
said, she limited access to the property, the respondent should make an
appointment when visiting the property. In the same letter she record ed that she was
not denying access to the property. What she alleged in her answering affidavit
appears to be rather a better articulation of what she did and the explanation for her
saying access was not denied than a measure to fix what was in the letter . The
respondent in his founding a ffidavit did not say anything about the separate gates
and why he could not use it to access the flat. These facts were within his knowledge
at the time of the filing of the founding affidavit. Instead, he created an impression
that, even though he had a r ight to the second dwelling, he was not able to access
the entire property.

[57] In my view, on application of the above principles, the version that the second
dwelling could s till be accessed through the second date should have been
accepted. This court finds her version not to have been farfetched . Even without the
admission of the video footage, the magistrate had sufficient facts on which to
determine the matter. This court makes no pronouncement on the issue relating to
the admission of th e footage. It then follows that the appellant should have been
found not to have breached the terms of the deed of settlement.

[58] Regarding the application of the clean break principle after divorce , there was
no basis for the magistrate to consider the existence of the protection orders. The
said orders were not part of the respondent’s case.

[59] According to the magistrate’s reasons for judgment, the respondent would
have been successful under the actio communi divindo , as well. The magistrate
seemed to have supported this by stating that the appellant and the respondent were
joint owners, post-divorce . During argument , the submissions relating to the legal
principles regarding settlement agreements were correctly set out on behalf of the
respondent. The one being that once the court was satisfied that the parties to the
agreement freely and voluntarily concluded the agre ement and that they were ad
idem as to its terms, the court would be entitled to make the agreement an order of
the court and the parties would be bound by the terms thereof.

[60] In terms of clauses 2.1 and 2.5 of the deed settlement, the property would
only be sold if there was mutual agreement and upon demand, following a breach of
the conditions stipulated in the deed of settlement. The issue of jurisdiction is also
provided for if a party sought to compel the sale following a breach envisaged in
claus e 2.5 of the deed of settlement. The respondent’s case in relation to the actio
communi dividundo was on separate ground that he was entitled to the relief, he no
longer wished to be a joint owner of the property. This court agrees with the
interpretation that, the said relief falls outside of the provisions of the deed of
settlement. The facts around it were not part of the magistrate’s reasons. The action
based on the actio communi dividundo would have had to be considered starting
from the issue of jurisdiction to the legal requirements relating to the facts alleged
and proved.

[61] In relation to the counter -application the magistrate found that the application
was incompetent because section 65(3) of the Deeds of Registry Act had not been
complied with. The appellant did not in clude th e counter -application in her grounds of
appeal. Considering that the appellant sought the relief in the counter -appli cation
only if the respondent was successful in the main application, this court deems it
unnecessary to deal with the cou nter-application.

[62] In the circumstances, the appeal must succeed. The costs will follow the
result.

In the result,

1. The appeal hereby succe eds.

2. The order of the court a quo is hereby set aside and replaced as
follows:

‘The application is hereby dismissed with costs’

3. The respondent is hereby ordered to pay the costs of appeal .


______________________________
B MAJIKI
JUDGE OF THE HIGH COURT

BANDS J:

I agree:

_____________________________
I BANDS
JUDGE OF THE HIGH COURT


Appearances :

Counsel for the Appella nt : Mr L Crouse SC

Instructed by : Messrs D E Swardt & Associates Inc.
3rd Floor, Fairview Office Park, Regus
House, 66 Ring Road, Greenacres
GQEBERHA
Ref. DH De Swardt/ C0003
c/o JD A ttorneys Inc.
40A Somerset Street
MAKHANDA

Counsel f or the Respondent : Mr K Morris

Instructed by : Messrs Quinton Van Der Berg Attorneys
Inc.
132 Cape Road
Mill Park
GQEBERHA
(Ref : QVDB/C13)
c/o WHITESIDES ATTORNEYS
53 African Street
MAKHANDA