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ORDER
[1] The attorney of the first respondent is directed to come on record forthwith and
to upload the necessary notice onto CaseLines.
[2] The consolidation application of the first respondent is dismissed with costs,
such costs to include the costs of the curator ad litem, on Scale B.
[3] It is confirmed that the death of Dr Jennings terminated the marriage with the
first respondent and her joint ownership of immovable properties held in joint
ownership with the first respondent.
[4] The draft order commencing at CaseLines 032 -6 is attached hereto marked
“X” and is made an order of court.
JUDGMENT - REASONS
[1] The applicant is the executor of the late Dr Vicky Adele Jennings who owned
two immovable properties jointly with her spouse, the first respondent. One is
situated at Carswald Estate in Midrand and the other in the Eastern Cape.
They were in the midst of divorce proceedings when Dr Jennings commenced
this application for termination o f their joint ownership.
[2] There are two minor children, aged 11 and 7, whose interests are protected in
the condonation application referred to below by their curatrix ad litem, Adv
Becker.
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[3] In the pending divorce proceedings the issues are the maintenance of their
two minor children, their primary care and the application of the accrual
system. The applicant has since passed away and her estate is represented
by her executor, who persists in the application. The first respondent brought
a counter -application for consolidation of this application with the divorce
proceedings.
[4] The death of Dr Jennings has terminated both the marriage and the joint
ownership in the two immovable properties (see the authorities below). What
remains in these termination proceedings, absent agreement between the
executor and the first respondent, is to determine a way to give effect to the
termination of joint ownership.
THE CONSOLIDATION APPLICATION
[5] The first respondent has brought a substantive consolidation application for
consolidation of the application for termination of joint ownership and the
divorce proceedings . The bulk of the argument centred on the consolidation
application. Counsel for the first respondent contends that the relief sought in
the application and the divorce overlap to such an extent that it is convenient
to consolidate the two processes. The consolidation was opposed on the basis
that there is not an overlap, and the divorce should go to trial on the remaining
disputes. The curatrix made common cause with the applicant in opposing the
consolidation.
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[6] It is trite that consolidation would be appropriate where it would avoid a
multiplicity of actions on the same issues. In this instance there are compelling
reasons why this is not applicable on the current facts.
[7] Save for the best interests of the minors, what remains to be decided in the
divorce is not the distribution or liquidation of assets, but the extent of an
accrual claim. It is a claim eventually sounding in money.
[8] In BM v BNG (unreported case number 2008/25274) (South Gauteng High
Court, Johannesburg – as it them was) Brassey AJ describes a party’s interest
in an accrual in divorce proceedings as “purely equitable for, questions of
dissipation aside, it becomes exigible only ‘at the dissolution of the marriage
… by death or divorce’ in terms of s 4 (1) of the Act. ”
[9] The right to share is not a vested right but a contingent right to participate in
the benefits of the accrual upon dissolution of the marriage (Cloete J
in Reeder v Softline Ltd and Another 2001 (2) SA 844 (W) at 848 I to 849
B).
[10] The disposal of property jointly owned is not part of a claim to share in an
accrual. At best it may form part of a court’s determination of how an
established accrual claim is to be discharged. But in this instance the right to
an accrual first needs to b e established at trial.
[11] A second reason why the consolidation is not appropriate is because it seeks
to consolidate an application with an action. No suggestion of how the
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pleadings will look was offered . On the face of it , it is undesirable to
consolidate processes that are not designed to be consolidated.
[12] I am not persuaded that a consolidation would save court time. On the
contrary, it will introduce contrived concepts of what the pleadings in a hybrid
process consisting of both motion and action proceedings, would be. The
consolidation application therefo re cannot succeed.
THE JOINT OWNERSHIP
[13] The death of Dr Jennings terminated the joint ownership. In Havemann’s
Assignee v Havemann’s Executor 1927 AD 473 Wessels JA states at 477(in
fine):
“During the lifetime of the spouses, D. A. Havemann did not own the estate in
two capacities, i.e., as the owner of the one half and possessor of the other
half. The spouses during their lifetime were the joint owners of the whole, and
only upon the death of one was the joint ownership broken. Mrs. Havemann
would naturally therefore, look upon her husband as the owner of the estate
which he held in his possession. It must be noted that no life interest is
specifically bequeathed to the survivor, but the lat ter is told to remain in full
possession.”
[14] In terms of the Administration of Estates Act, 66 of 1965 , her interest in the
property firstly passed to the Master and is now administered by her duly
appointed Executor. In the absence of agreement between the parties the
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first res pondent has hardly any defence to a claim for sale of the properties in
question.
[15] The termination of joint ownership by means of the actio communi dividundo
has two sides to it. First, the right to terminate. And secondly, once such a right
has been established, how to give effect to such termination. Reinders J stated
the following in Marogoa v Marogoa 2023 JDR 0198:
“[4] It is trite that where property is owned in joint ownership, each such
co-owner has an undivided share therein. The share need not be
equal. As a general rule, every co -owner would be entitled to have
such co-ownership terminated with the actio communi dividundo .
[5] A party merely has to allege and proof (sic) the existence of the joint
ownership and a refusal by the other to agree to the termination and/or
inability to agree in respect of the method of termination (or an
agreement to terminate but refusal to comply therewith). A respondent
(defendant) does not have a plethora of defences once any of the
above requisites has been proven. The general rule i s that a court has
a wide discretion and would follow a method that is fair and equitable
to both parties. This would include for example a sale by public auction
and division of the nett amount, in appropriate cases an allocation of
the property to one owner subject to payment of compensation and
even a private auction restricted to co -owners and division of the ne tt
amount . “
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APPEARANC ES
Counsel for Applicant: Adv A.J Schoeman
Instructed by:
NBP Attorneys .
481 Anderson Street , Menlo Park.
Preto ria
Counsel for Responden t: Adv D Matlatle
Instructed by:
Richard Sithi Attorneys .
210 Amarand Avenue .