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
KWAZULU -NATAL LOCAL DIVISION, DURBAN
Case No. D410/202 0
In the matter between:
N[...] S[...] Applicant
and
R[...] S[...] Respondent
___________________________________________________________________
ORDER
___________________________________________________________________
The following order shall issue:
1. The part ies’ joint ownership of the property situate d at 9[...] I[...] Close, Izinga
Ridge, Umhlanga, KwaZulu -Natal, held under Deed of Transfer number
ST31179/2018, is terminated.
2. The property shall be sold forthwith by way of private auction, as follows:
(a) The applicant shall have the sole right to decide as to who shall be
appointed to auction the property , and when such auction shall take
place.
(b) The property shall be sold subject to a reserve price of R5 million.
(c) The occupation by the new owner shall be on transfer of the property
or as arranged between the applicant and the purchaser.
(d) Should the reserve price not be achieved, the respondent’s half share
shall be transferred and registered in the applicant’s name against
payment to the respondent of R3 million.
(e) If the property is sold for more than R6 million, the nett proceeds of the
sale shall be divided and the respondent shall be paid more than R3
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million , if her half share from the nett proceeds of such sale exceeds
R3 million.
[3] The respondent is directed to sign any documents as may be necessary to
effect the sale and/or transfer of the property.
[4] Should the respondent fail to sign any such documents within seven (7) days
of being called to do so, the sheriff of the high court shall be authorised to sign
on her behalf.
[5] The immediate division of the accrual between the parties in terms of s 8 of
the Matrimonial Property Act 88 of 1984 is hereby ordered as follows :
(a) The calculation of the accrual of each party’s estate, including
the
calculation of the accrual claim by the respondent (the
defendant in the divorce action ), shall be as at the date of this
order.
(b) In the interim, from the date of this order to the date of divorce,
the matrimonial property system applicable shall be out of
community of property, excluding accrual, community of
property and community of profit and loss.
(c) The respondent shall be entitled to payment of her accrual
claim , as proven , as at the date of divorce.
(d) Save for, on transfer of the property, the respondent shall be
entitled to payment of whichever is the greater of the following
amounts :
(i) Fifty percent of the nett proceeds from the sale of the
property as referred to in paragraphs 2(a) – (e) above, or;
(ii) The amount of R3 million on the registration of transfer of
property to the applicant.
[6] The respondent is directed to pay the costs of this application on scale B.
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___________________________________________________________________
JUDGMENT
___________________________________________________________________
Singh J
Introduction
[1] This application concerns an immovable property described as 9[...] I[...]
Close, Izinga Ridge, Umhlanga, KwaZulu -Natal, held under Deed of Transfer
number ST31179/2018 (the property).
[2] The applicant relies on the actio communi divid undo to terminate the joint
ownership of the property.
[3] The applicant and respondent are married to each other, out of community of
property, subject to the accrual system. The property is registered in the joint names
of the applicant and respondent in undivided shares. Both parties reside on the
property together with their minor child. They are in the throes of divorce
proceedings which commenced in 2020. A reading of the papers reflects that the
primary residence of the minor child is the most contentious issue in the divorce
action.
[4] The applicant launched this application on the basis that his continued living
with the respondent on the property has become intolerable. He has made various
attempts to place the property on the open market. These attempts have been
unsuccessful and consequently, he offers to buy the respondent ’s share in the
property . Alternatively , he seeks for the property to be sold by way of private auction.
The respondent opposes the application and has also brought a conditional counter -
application .
The law
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[5] The actio com muni dividundo is well entrenched in our law . It has been
recognised by the old authorities, including Voet1 and Van Leeuwen.2 The underlying
purpose is that every co -owner may insist on a partition of property at any time,
unless there is an agreement between the co -owners not to do so within a certain
period of time.3 If co-owners cannot agree on the manner in which the property is to
be divided , the court is empowered to make such a decision as appears to be fair
and equitable in the circumstances.4 The court, in other words, has a discretion
which it must exercise judicially . If the property is not capable of sub -division, such
an order may, for example , entitle one of the co -owners to obtain the whole of the
property upon payment of a sum of money to the other party . If it is not possible to
make such an order, the court may order that the property be sold and the proceeds
be divided between the parties .5
[6] The principles relating to the actio com muni div idundo were summarised by
the Appellate Division in Robson v Theron ,6 as follows:
‘(a) No co -owner is normally obliged to remain a co -owner against his will.
(b) This action is available to those who owns specific, tangible things (res corporals) in
co-ownership, irrespective of whether the co -owners are partners or not, to claim
division of the joint property.
(c) Hence this action may be brought by a co -owner for the division of joint property
where the co -owners cannot agree the method of division.
(d) It is for purposes of this action immaterial whether the co -owners possessed the joint
property, jointly or neither of them possesses it or only one of them is in possession
thereof.
(e) This action may also be used to claim ancillary relief payment of praestationes
personales relating to profits enjoyed or expenses incurred in connection with the
joint property.
(f) The court has a wide discretion in making division of joint property. This wide
equitable discretion is substantially identical to the similar discretion which a court
has in respect of the mode of distribution of partnership assets amongst partners.’
1 Voet 10.3.1.
2 Censura Forensis 1.3.27.
3 Schefermann and others v Davies 1944 NPD 20 at 21 to 22.
4 Matadin v Parma and others [2010] ZA KZPHC 18 (Matadin), para 2
5 Rademeyer and others v Rademeyer and others 1968 (3) SA 1(C).
6 Robson v Theron 1978 (1) SA 841 (A) at 856H - 857D (Robson) .
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[7] The common law was always available in the case of free ownership but not
available in bound co -ownership. Due to the different forms of co -ownership, it
is necessary to first identify which form of co -ownership is applicable. In
Robson , the court did not draw a distinction between free and bound co -
ownership. The distinction, however, was made in Municipal Employees
Pension Fund and others v Chrisal Investments (Pty) Ltd and others .7 The
Supreme Court of Appeal ( SCA) stated that in respect of free ownership, any
co-owner may demand at any time, that the co -ownership be terminated and
that the co -owned property be divided between the owners. In respect of
bound ownership, the co -ownership may only be terminated when the primary
relationship is terminated.
[8] In, Ex parte Menzies et Uxor ,8 the court held that:
‘The matrimonial home in a marriage out of community of property, need not
in principle be treated as something other than ‘free’ ownership, including a
right of each co -owner to alienate his or her share freely.’
Accordingly, any restrictions upon unilateral exercise of rights of co -ownership where
the marriage is one out of community of property , is no different to any other form of
co-ownership.
[9] In considering the actio, the SCA, in Chrisal , stated that9:
‘There is no closed list of instances of bound ownership. If the relationship
gives rise to bound co -ownership, the co -ownership will endure for as long as
the primary intrinsic relationship endures. Once it is terminated then, as in [ex
parte: Menzies et Uxor 1993 SA 799 (C) at 81 1H to 812I and Robson v
Theron, i t will become free ownership and be capable of being terminated
under the actio.’ (Footnotes omitted.)
[10] An example of bound ownership is where the parties are married in
community of property and are therefore bound co -owners by virtue of the ir
matrimonial property regime. Where parties are married out of community of
7 Municipal Employees Pension Fund and others v Chrisal Investments (Pty) Ltd and others [2020]
ZASCA 116; 2022 (1) SA 137 (SCA) ( Chrisal ).
8 Ex parte Menzies et Uxor 1993 (3) SA 799 (C) (‘Menzies’) at 812D - E.
9 Chrisal para 48
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property, and are joint owners of property, this is regarded as free ownership
extrinsic to the matrimonial property system .10
The applicant’s case
[11] In a draft order, the applicant requests that the property be sold by way of
private auction , with him having the sole right to appoint an auctioneer and that the
property be sold, subject to a reserve price of R5 million. Should the reserve price
not be achieved , then he seeks that the respondent’s half share be transferred and
registered into his name , against payment of R3 million , to the respondent .
[12] In his founding papers, the applicant allege s that he has been solely
responsible for the running costs of the property with no financial contribution from
the respondent. Over and above th ose expenses, he has to pay maintenance for the
respondent and the minor child. He attempted to market the property at R6 million ,
after assessing similar propert y sales in the area. The property, however, did not
sell. At the time that the property was marketed at R6 million, the respondent was
assured that the nett proceeds would be equally divided, and she would receive the
sum of R3 million.
[13] In order to overcome the state of affairs w here the property had not been
successfully sold, and with the financial backing of his family, the applicant intends to
obtain a loan and pay the respondent R3 million against transfer of her half share of
the property to him .
The respondent’s opposition
[14] The respondent opposes this application on three grounds, namely:
(a) She disagrees that the value of the property is R6 million and submits that its
true value i s R7 616 641, and that on the applicants own version, the property
ought to be marketed at between R6 million and to R6 .75 million . In her
answering affidavit, she submit s that the property ought to be marketed for
more than R6 .75 million and that this court ought to set a reserve price .
10 Menzies at 812 H - I
7
(b) The respondent contends that the applicant launched the application to place
himself in a better position to secure primary residence of their minor child as
opposed to the overall objective of this application, namely the termination of
joint ownership of the property. It is further submitted that the minor child
enjoys the comfort zone within the environment of the property and if it were
to be established that the respondent is awarded primary residence of the
minor child, she may , in that instance, elect to remain on the property and pay
the applicant his half share of the value of the property . In her written heads of
argument, the respondent submit s that this court is not required, nor tasked,
with the competence , to adjudicate upon the issue of primary residence, and
hence this application should not succeed . Ms Lennard, who appeared on
behalf of the respondent , submit s that this court , sitting as the upper guardian
of the minor child , ought to take this into account in deciding the application.
(c) It would be premature to hear this application before a referee is appointed as
the referee would assist the parties in determining the accrual value of the
respective estates. The property is one such asset which impacts o n the
referee’s functions and duties. The granting of the relief sought by the
applicant usurps the referee’s position.
[15] In a conditional counter -application, the respondent s eeks the immediate
division of the accrual between the parties in terms of s 8 (1) of the
Matrimonial Property Act 88 of 1984. At the hearing of the application, Ms
Ainslie, who appear s for the applicant , submit s that the applicant consent s to
the relief in the conditional counter -application and the order was included in
the draft order sought by the applicant.
Application of the facts to the law
[16] With regard to the first ground of opposition, namely that the property ought to
be marketed for R6 .75 million , the applicant, in his founding affidavit, was clear that
the property was on the market for almost a year and there were no offers at
R6 million . Likewise, the applicant submitted that even if he were to place the
property on the market for the value submitted by the respondent, the property would
need to be renovated. He does not have the funds to do this. The respondent, in her
answering affidavit , put up details of various properties in the area and the amounts
that those properties sold for. It is apparent that none of the properties sold for more
8
than R6 million and the analysis put up by her also indicates that these properties in
some instances, remained on the market for more than one year , before they were
sold.
[17] I am therefore of the view that the applicant correctly suggests that the
property be sold at a reserve price of not less than R5 million. This is taking into
account that the property did not sell for R6 million when it was placed on the market
for that sum . In any event, in his draft order, the applicant tenders to pay the
respondent R3 million for her share in the property which , is more than half the
suggested reserve price. I intend , however, in setting the reserve price at R5 million ,
to provide for the possibility, that if , by any chance , the property is sold for more than
R6 million, then the nett proceeds of the sale of the property, if the respondent’s half
share is more than R3 million, must be paid to her.
[18] In respect of the second ground of opposition, the applicant, in his founding
affidavit relies on the report of a forensic psychologist, Ms Phillipa Styles, who
recommends that primary residence of the minor child be awarded to the applicant.
In her report, Ms Styles states that, ‘the continuing to live together in a hostile
environment is not good for [B]’. I do not accept the respondent’s version that
ownership of the property ought not to be terminated or that this application ought
not to be heard before the issue of the primary residence of minor child has been
determined. Ms Lennard urged me to take the interests of the minor child into
account in deciding this matter. The residence of the minor child will , firstly, in any
event and notwithstanding whoever is awarded primary residence of her , be
disrupted . This is unfortunately a consequence of divorce proceedings where minor
children are involved. Secondly , the report of Ms Styles, if anything , suggests that
the continued living together of the applicant and respondent is not conducive to the
well being of the minor child. It does not , therefore, assist the respondent in
submitting that ownership ought not to be terminated for this reason. This ground of
opposition, is , therefore, without merit.
[19] In keeping with what was held in Chrisal and Menzie , I am of the view that it is
clear that the property falls within the category of free co -ownership. With or without
the appointment of a referee, the applicant is entitled to the dissolution of the co -
ownership of the property. The argument by the respondent that the sale of the
9
property , will affect her accrual claim, is also in my view , without merit. The
determinative date for the calculation of an accrual claim is the date of the
dissolution of the marriage.11 The right to share in the accrual, arises only upon the
dissolution of the marriage and as such is until then only a contingent right.12
[20] Having dismissed the respondent’s grounds for opposition, I am satisfied that
the applicant is entitled to b ring an end to the co-ownership of the property and the
only practical manner in which this can be done is that the property must be sold and
the proceeds divided between the applicant and the respondent. I am of the view,
that the sale of the property, subject to a reserve price , is the most appropriate
manner of dealing with the property. The reserve price is therefore set at R5 million.
Failing that, and should the reserve price not be achieved, then the respondent’s half
share must be transferred to and registered in the name of the applicant , against
payment by the appellant of R3 million. In the event that the property is sold for more
than R6 million, then the respondent must be paid the relevant half share of the nett
proceeds of such sale, if it exceeds the R3 million tendered by the applicant. I am
also satisfied that, given the lack of agreement between the parties, and in order to
prevent unnecessary litigation, the applicant is entitled to an order authorising him
solely to appoint an auctioneer.
Costs of the application
[21] Each of the parties seeks the costs of the application. The applicant seeks the
costs of the application on scale B, whilst the respondent seeks the costs of the
application on scale C. The applicant was constrained to bring this application
because the respondent did not consent to the termination of the co -ownership. The
applicant further enjoyed success in this application and consented to the relief in the
conditional counter -application. I am therefore of the view that applicant is entitled to
the costs of the application on scale B.
Order
[22] The following order shall issue:
11 Section 3 (2) of the Matrimonial Property Act 88 of 1984; AB v J B [2016 ] ZASCA 40; [2016] (5) SA
211 (SCA) .
12 LD v JD [2021] 1 All SA 909 (GJ) para 33 .
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1. The part ies’ joint ownership of the property situate d at 9[...] I[...] Close, Izinga
Ridge, Umhlanga, KwaZulu -Natal, held under Deed of Transfer number
ST31179/2018, is terminated.
2. The property shall be sold forthwith by way of private auction, as follows:
(a) The applicant shall have the sole right to decide as to who shall be
appointed to auction the property, and when such auction shall take
place.
(b) The property shall be sold subject to a reserve price of R5 million.
(c) The occupation by the new owner shall be on transfer of the property
or as arranged between the applicant and the purchaser.
(d) Should the reserve price not be achieved, the respondent’s half share
shall be transferred and registered in the applicant’s name against
payment to the respondent of R3 million.
(e) If the property is sold for more than R6 million, the nett proceeds of the
sale shall be divided and the respondent shall be paid more than R3
million if her half share from the nett proceeds of such sale exceeds R3
million.
[3] The respondent is directed to sign any documents as may be necessary to
effect the sale and/or transfer of the property.
[4] Should the respondent fail to sign any such documents within seven (7) days
of being called to do so, the sheriff of the high court shall be authorised to sign on
her behalf.
[5] The immediate division of the accrual between the parties in terms of s 8 of
the Matrimonial Property Act 88 of 1984 is hereby ordered as follows :
(a) The calculation of the accrual of each party’s estate, including the
calculation of the accrual claim by the respondent ( defendant in the
divorce action ) shall be as at the date of this order.
(b) In the interim, from the date of this order to the date of divorce, the
matrimonial property system applicable shall be out of community of
property, excluding accrual, community of property and community of
profit and loss.
11
(c) The respondent shall be entitled to payment of her accrual claim , as
proven , as at the date of divorce.
(d) Save for, on transfer of the property, the respondent shall be entitled to
payment of whichever is the greater of the following amounts :
(i) Fifty percent of the nett proceeds from the sale of the property
as referred to in paragraphs 2(a) – (e) above, or;
(ii) The amount of R3 million on the registration of transfer of
property to the applicant.
[6] The respondent is directed to pay the costs of this application on scale B .
_______ _________
SINGH J
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CASE INFORMATION
Date of Hearing : 18 June 2025
Date of Judgment : 18 July 2025
APPEARANCES
Counsel for the App licant : Ms D. Ainslee
Instructed by : Ditz Incorporated
4th Floor, The Ridge
8 Torsvale Crescent
La Lucia Ridge
Tel: 031 – 566 3386
Ref: Mr FOBB/cp
Email: jfobb@iafrica.com
Counsel for the Respondent : Ms. U. Lennard
Instructed by : Pravda and Knowles Attorneys
7 Light House Building
15 Millennium Boulevard
Umhlanga
Tel: 031 – 307 3982
Ref: MP/Is/01S1315001 - 2024
Email: denisha@pravda.co.za