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REPUBLIC OF SOUTH AFRICA
IN THE HGH COURT OF SOUTH AFRICA
HELD AT PRETORIA
CASE NO: 2023/ 030065
DOH: 26 November 2024
DECIDED: 28 May 2025
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED.
DATE 28 MAY 2025
SIGNATURE
In the matter between:
M[...] K[...] N.O.
(ID: 8[...])
(In her capacity as the executor of Estate
Late W[...] B[...] T[...] in terms of the letters
of executorship issued by the Master of the
High Court, Johannesburg, dated 10 March
2022 )
Applican t
And
J[...] H[...] P[...] T[…]
First Respondent
CHANGING TIDES (Pty) LTD. N.O.
(registration number 1986/0044794/06) Second Respondent
MASTER OF THE HIGH COURT
JOHANNESBU RG Third Respondent
This judgment has been handed down remotely and shall be circulated to the parties
by way of email / uploading on Caselines. The date of hand down shall be deemed
to be 28 May 2025 .
________________________________________________________________
ORDER
________________________________________________________________
1. The application is dismissed with costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
Bam J
Introduction
1. The applicant applies to this court for an order authorizing , inter alia, the termination
of joint ownership in the immovable property, described as Erf 1[...] B[...] Township
Registration Division IR, The Province of Gauteng (the property) , which currently
vests in undivided share s in her as the duly appointed executr ix of Estate Late W[...]
B[...] T[...] and in the first respondent . The order sought is to further authorize the
sale of the immovable property , along with certain ancillary relief . First respondent
opposes the application on various grounds . The grounds include a point in limine
founded on the provisions of Section 97 of the Deeds Registry Act1 (the Act). Section
97 (1) of the Act reads:
‘Before any application is made to the court for authority or an order involving the
performance of any act in a deeds registry, the applicant shall give the registrar
concerned at least seven days’ notice before the hearing of such application and
such registrar may submit to the court such report thereon as he may deem
desirable to make.’ (own underline )
2. In response to the merits, the first respondent submits , inter alia, that he owns the
entire property , following the divorce decree issued by this court, which incorporated
the settlement agreement between him and the late Mrs T[...]. I commence by
introducing the parties before setting out a sketch of the background facts.
Parties
3. The applicant is the duly appointed executor of the Estate late W[...] B[...] T[...] with
her business address situated at Tinto & Associates Inc, 9[...] D[...] Avenue, Pretoria,
Gauteng.
4. First respondent is J[...] H[...] P[...]T[...], an adult male and joint owner of the
immovable property in question. The first respondent was married to the late Ms.
T[...] until the time of their divorce in 2009.
5. Second respondent is Changing Tides 17 (Pty) Ltd, N.O. (registration number
1986/0044794/06), a private company with limited liability duly incorporated in
accordance with the laws of the Republic of South Africa with its principal place of
business at [...] M[...] Crescent, Milkwood Park, La Lucia Ridge, Durban. Second
respondent is cited in its representative capacity as the duly appointed and sole
trustee of South African Home Loans Guarantee Trust, IT 10713/2000, a Trust duly
1 Act 43 of 1957 .
registered in terms of the laws of the Republic by the Master of the High Court of
South Africa . The applicant seeks no relief against the second respondent.
6. Third respondent is the Master of the High Cour t of South Africa, Johannesburg, with
its offices situated at 6[...] M[...] Street , Corner Marshall and Sauer Street s, Pixley ka
Seme, Johannesburg. The relief sought against the Master is that they approve the
sale of the immovable property and, where the Master deems it fit, set the conditions
of the sale.
7. Of the three respondents, only the first respondent is resisting the relief sought by
the applicant. In the event , I shall refer to the first respondent as respondent . Where
necessary , I specify the particular respondent .
The relief sought
8. In summary , the relief sought by the applicant may be stated as: The applicant seeks
the authority of this court to enable her as the executor : (i) to sell the immovable
property, subject to Section 47 and any other relevant provision of the Administration
of Estates Act; (ii) to terminat e the joint ownership of the property described as Erf
1[...] B[...] Township Registration Division IR, The Province of Gauteng (the
property) , subject to those conditions as the court may determine , including the
manner in which the property is to be sold and further providing for the respondent to
have the right of first refusal ; and further subject to the conditions imposed by the
Master ; (iii) to receive and apply the proceeds of the sale contemplated in paragraph
1 of the Notice of Motion to settle the liabilities of the estate and defray the costs
incurred in the administration of the estate; to pay any profit remaining after payment
of the debts and expenses to the respondent; and (iv) to authorize her or the sheriff
to sign the necessary papers to effect transfer to either the respondent or a third
party.
The facts
9. The common cause facts are: The property in question was first registered in the
names of the late Mrs T[...] and the respondent in 1992 , more than 32 years ago. In
2007, a mortgage loan (loan) was registered against the property in favour of the
second respondent. Following her appointment in March 2022 as execut rix of the
estate of the late Ms. T[...] in March 2022 , who died in 2019 , it came to the
applicant’s attention that the repayments towards the loan were either sporadic or
not made at all. She wishes to sell the entire property on the basis that the
respondent either refuses or neglects to enga ge with her with a view to either
purchasing the remaining half of the property alternatively, signing off the relevant
papers to effect transfer to a third party.
Applicant’s submissions
10. The applicant submits that as the executor of the estate, she is obliged in terms of
the Administration of Estates Act to sell the property in such a manner and subject to
the conditions, as the Master may approve. She submits that her proposed method
of terminating the joint ownership is just and equitable. She records that neither she
nor the second respondent are opposed to the first respondent ’s keeping the
property in the event he so desires, provided he furnish es the necessary guarantees.
The applicant records in her founding papers that the outstanding amount together
with interest at the time of deposing to the founding affidavit stood at R 196 025.00,
with interest calculated at 9% from 1 March 2023 to date of full payment. The arrears
were calculated in the amount of R88 313. 46 as at 15 March 2023.
11. The applicant further draws this court’s attention to section 26(1) of the Constitution
of the Republic of South Africa, which guarantees everyone the right to adequate
housing. She records that in the event the respondent claims that the present
application infringes on his right to adequate housing, it is incumbent upon him to
place such information before this court. In response to the respondent’s assertion
that he is the owner of the entire property , pursuant to the divorce decree , the
applicant submits that the settlement agreement , although binding between the
spouses, did not vest dominium of the deceased’s half share of the property in the
respondent any more than a contract of sale of land passes ownership on the
purchaser would .
Respondent’s submissions
12. The respond ent raises a point in limine founded on the applicant’s non-compliance
with Section 97 of the Deeds Registry Act. In this regard, he submits that the
application involves the performance of an act in the deeds registry , yet the applicant
failed to give notice to the registrar before the application was made , as required by
the section. He submits that the application should be dismissed on this ground
alone.
13. Based on the assertion that he is the owner of the entire property, following the
divorce decree, he submit s that bar the relief of termination of the joint ownership,
the applicant lacks locus standi for the remainder of the relief she seeks before this
court.
Issues
14. The issues for determination are:
(i) Whether the applicant complied with Section 97 of the Deeds Registry Act. In the
event the applicant failed to comply, the implications for such failure must be
determined, (point in limine ).
(ii) Whether the respondent is correct in his assertion that he owns the entire property
pursuant to the decree of divorce.
(iii) Whether , considering the provisions of section 47 of the Administration of Estates
Act, this court is in a position to grant the relief sought by the applicant; and
(iv) Costs
Point in Limine : Whether the applicant complied with Section 97 of the Act, and the
implications
15. Section 97 of the Act reads:
‘97. Notice to registrar of application to court
(1) Before any application is made to the court for authority or an order involving the
performance of any act in a deeds registry, the applicant shall give the registrar
concerned at least seven days’ notice before the hearing of such application and
such registrar may submit to the court such report thereon as he may deem
desirable to make.’ (own underline )
16. It may be said that the main relief sought from this court is the termination of joint
ownership in the proper ty. The act of terminating joint ownership undoubtedly
involves the performance of an act in a deeds registry , which in turn calls for
compliance with Section 97. There is nowhere in the papers where the applicant
avows compliance with the provisions of the section. Nor is there any averment that
the application was either served upon the registrar to further the purpose of the
provision. Thus, it must be accepted that the applicant has not complied with the
provisions of Section 97.
17. Does the non-compliance with the provision mean the end of the application?
Guidance in finding this answer must be sought from case law. In Ex Parte:
Sanders2, the court held that non-compliance with the provisions of the section was
fatal to the application , whereas compliance even with a short notice than the
prescribed seven days could be condoned . It may be said that the court’s approach
in Sanders was steeped in literalism. However, in Scott NO and Another v Nelson
Mandela Bay Metropolitan Municipality , the court adopted what is now known as the
purposive approach , as may be gleaned from its reasoning:
‘I do accept that the law requires that notice be given to the Registrar, but I
consider relevant, in favour of the applicants, the fact that the application was
served on the office of the Registrar and a report prepared by the Registrar
forms part of the record. I am therefore satisfied that the purpose which the
rule was intended to serve has been met.’3
18. In A.A.V NO v Y.V the court , underscoring the peremptory nature of the provision ,
held the view that non-compliance with the provision was fatal to the application . It
said:
‘This submission ignores the provisions of section 97 (1) of the Deeds
Registries Act which are peremptory with regards to the need to file notice
regarding any proceedings in court … [16] I, therefore, hold the view that
failure to notify or even join the registrar of deeds is fatal to the application.’4
2 (3022/02) [2002] ZAWCHC 34; [2002] 3 All SA 619 (C); 2002 (5) SA 387 (C) (19 June 2002), page
5.
3 (920/2012) [2013] ZAECPEHC 3 (29 January 2013) .
4 (39813/2019) [2021] ZAGPJHC 865 (1 July 2021), paragraph 15, 16.
19. However, it appear s that the distinction between directory and mandatory provisions
when interpreting legislation with a view to assessing compliance has been
discarded , regard being had to the purposive approach espoused by the
Constitutional Court in Allpay Consolidated Investment Holdings (Pty) Ltd and Others
v Chief Executive Officer of the South African Social Security Agency and Others .
Here the court observed:
‘Formal distinctions were drawn between “mandatory” or “peremptory”
provisions on the one hand and “directory” ones on the other, the former
needing strict compliance on pain of non-validity, and the latter only
substantial compliance or even non-compliance. That strict mechanical
approach has been discarded. Although a number of factors need to be
considered in this kind of enquiry, the central element is to link the question of
compliance to the purpose of the provision ’5
20. The purposive approach was advocated for by the Supreme Court of Appeal in
Signature Real Estate (Pty) Ltd v Charles Edwards Properties and Others . Here the
court was emphatic that even peremptory provisions must yield to two interpretive
imperatives , namely, the injunction of Section 39(2) of the Constitution, which enjoins
courts, when interpreting any legislation, to promote the spirit, purport and objects of
the Bill of Rights ; and the purpose of the statute, more specifically, due regard must
be had to whether adopting a strict or literal interpretation of its provisions is
consistent with what the Act seeks to achieve6.
21. The purpose of the provision is to afford the registrar the opportunity to make an
informed decision on whether it is necessary to file the report envisaged in the
sectio n. It may be that a report may not always be necessary, but the registrar
cannot make such a decision without being afforded the opportunity to consider the
relief sought . It follows that the purpose for which the section was enacted has not
been achieve d in the present case . In the circumstances, the application cannot be
granted.
5 (CCT 48/13) [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) (29 November 2013),
paragraph 30.
6 (415/2019) [2020] ZASCA 63; 2020 (6) SA 397 (SCA) (10 June 2020), paragraph 17.
Whether the respondent owns the entire property pursuant to the decree of divorce
22. It is convenient to at once dispose of the respondent’s contentions that he is the
owner of the entire property, pursuant to the decree of divorce. The contention is
incorrect. The divorce decree endows the respondent with a personal right, which is
enforceable only against the other party to the agreement, to claim transfer or the
endorsement of the deed to reflect him as the sole owner. To achieve termination of
the co-ownership and acquire dominium of the entire property requires the act of
attestation or registration to be performed by the Registrar of Deeds , which it is
common cause has not taken place in the present case . The decision of the
Supreme Court of Appeal in Fischer v Ubomi Ushishi Trading & others , makes this
plain:
‘[C]o-ownership in land is only terminated on attestation (registration) of deeds
of partition transfer by the registrar, when ownership is conveyed to the
respective owners of the land. Spouses married in community of property
automatically become bound co-owners of immovable property in their joint
estate. Upon termination of the joint estate … on divorce, the bound co-
ownership was replaced by free co-ownership until such time as the
subdivision …was effected. It is only upon attestation of the deeds of partition
transfer by the registrar that free co-ownership is replaced by individual
ownership.’7
23. The court in Ubomi referred to section 26 of the Deeds Registry Act, which reads: (I
have abbreviated the provision for convenience)
‘26. Deeds of partition transfer (1) If two or more persons who own in
undivided shares the whole of any piece or pieces of land, have agreed to
partition that land, the registrar shall, on production to him of a power of
attorney … authorising the passing of deeds of partition transfer of such
land…, attest deeds of partition transfer…, conveying to the respective
owners the land or shares therein awarded to them under the said
agreement. ’
Whether this court is in a position to grant the relief sought
7 (1085/2017) [2018] ZASCA 154(19 November 2018), paragraph 27.
24. Section 47 deals with Sales by the Executor and it reads:
‘Unless it is contrary to the will of the deceased, an executor shall sell property (other
than property of a class ordinarily sold through a stock -broker or a bill of exchange or
property sold in the ordinary course of any business or undertaking carried on by the
executor) in the manner and subject to the conditions which the heirs who have an
interest therein approve in writing : Provided that-
(a) in the case where an absentee, a minor or a person under curatorship is heir to
the property; or
(b) if the said heirs are unable to agree on the manner and conditions of the sale, the
executor shall sell the property in such manner and subject to such conditions as the
Master may approve . (own underline)
25. The applicant asks this court to authorize the termination of joint ownership in the
property subject to the court placing various conditions , which include the manner in
which the property is to be realized. At this point, the court has no information on
whether the execut rix had identified or even consulted any heirs; whether there are
any minor children or persons represented by a curator who have an interest in the
property ; what their views are, whether there were any disagreement between the
heirs , and the nature of those disagreements . Certainly, the applicant is silent on
these critical issues. The applicant does not claim to have ever approached the
Master for consent but contents herself with inviting the Master to issue those
conditions in line with Section 47.
26. But there is something more perplexing about the applicant’s decision to come to
court directly, without approaching the Master , it is that the court is asked to step into
the role of an administrator by setting conditions with no relevant information
whatsoever . In Bester N.O v Master of the High Court and Another , a matter
concerned with an administrative review of the Master’s failure to issue their consent ,
in circumstances where the applicant had sought such consent prior to coming to
court , the court after surve ying relevant authorities, was of the view that it was not in
as good a position as the Master would be to make the decision on the manner and
conditions of sale. It noted:
‘[48] [E]ven in a case where there is a single heir, as opposed to a number of
heirs, if the single heir did not consent to the manner and conditions proposed
for the sale by the executor, the executor would be required to approach the
Master for approval. ’8
27. It must be noted , as the provision of Section 47 make plain, that the executor is
vested with the authority to sell the propert y. The court made the point in Jackson v
Stanford Cawood and Others9 that Section 47 relates to the manner and conditions
of sale of estate property by the executor, and not to the decision as to whether or
not to sell.
28. It seem s to me that stepping into the Master’s shoes and setting the conditions and
the manner in which the sale is to be carried out, even where, as in the present case,
the applicant still intends to seek the Master’s consent , is not what was intended by
the lawmakers . Besides being a recipe for chaos, in the event the Master were to
issue conditions contrary to those issued by this court after considering the
circumstances of this case , I am persuaded that, acceding to the applicant’s request
would offend the separation of powers rule10. The applicat ion must thus be refused.
Rule 46A
29. The founding affidavit alludes to Section 26 of the Constitution and to the provisions
of Rule 46 of the Uniform Rules. It attempts to challenge the respondent to bring to
court relevant information of the sought envisaged when a judgment creditor, in the
position of bondholder , wishes to execute against the primary home of the execution
debtor. Yet, no such judgment exists in this case. The second respondent, for whom
it appears the executrix also acts in these proceedings, has not walked the long and
demanding road of obtaining execution against the immovable property which
constitutes the primary residence of the execution debtor. Instead of proceeding by
8 (17428/2021) [2023] ZAWCHC 208; 2023 (6) SA 199 (WCC) (16 August 2023) , paragraph 48.
9 (3945/2016) [2017] ZALMPPHC 20 (18 August 2017) , paragraph 29.
10 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03)
[2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004); paragraphs 45 -
46; International Trade Administration Commission v SCAW South Africa (Pty) Ltd (CCT 59/09)
[2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC); 72 SATC 135 (9 March 2010,
paragraph 95.
way of Rule 46A against the respondent for his share of the bond repayments , a
process, over which the court is mandated to exercise judicial oversight, the
applicant, empowered by her nomination secured through the second respondent,
chose to bring this application. Based on the reasoning in this judgment, the
application was not thought through. In the process the respondent was forced to
incur costs to protect not only his interest in the property but his home. The
application falls to be dismissed with costs.
Order
1. The application is dismissed with costs .
N.N BAM J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Date of Hearing: 27 November 2024
Date of Judgment: 28 May 2025
Appearances :
For the Appellant Adv P.I Oosthuizen
Instructed by: Velile Tinto & Associates
Wapadrand, Pretoria
Counsel for the respondent: Adv C.J Mouton
Instructed by: Michael Krawits & Co
c/o Nixon Collins Attorneys,
Waterkloof, Pretoria