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 REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 35402/09
(1) REPORTABLE: NO / YES
(2) OF INTEREST TO OTHER JUDGES: NO/YES
(3) REVISED.
(4) SIGNATURE: N Khumalo J
DATE: 02/10/2025
Electronically delivered
In the matter between
M[...] L[...] K[...] APPLICANT
and
RUDOLPH PHILLIPUS JORDAAN 1ST RESPONDENT
M[...] O[...] M[...] 2ND RESPONDENT
‘This judgment was handed down electronically by circulation to the parties’ representatives
by email. The date and time of hand-down is deemed to be 02 October 2025
The appointment of a liquidator to effect or implement the division or separation of a
matrimonial joint estate at a dissolution of a marriage is a common occurrence
especially where a huge estate is involved1 or the parties are not in agreement on its
separation. The parties may agree on the liquidator to be appointed or absent such
an agreement a court may, exercising its inherent power appoint one. 2 The powers
that are bestowed on the Liquidator as an administrator authorises him to take
control of the joint estate, accumulate the assets together with the liabilities to
ultimately dissolve the joint estate through a fair distribution of the net assets
between the divorcees.
JUDGMENT
___________________________________________________________________
N V KHUMALO J
[1] This is a n application for the removal of Mr Rudolph Pillipus Jordaan, the 1st
Respondent as an appointed liquidator and receiver in the joint estate of the
Applicant, Mr M L K[...] and his ex -wife Ms M O M[...], the 2 nd Respondent. The
Applicant also seeks the report of the 1st Respondent on the division of the ir joint
estate to be set aside , the fees charged by the 1st Respondent forfeited and the
appointment of Ms Maryna Estelle Simons in substitution of the 1st Respondent.
Factual Background
[2] The Applicant and the 2nd Respondent were previously married to each other
in community of property (together referred to as the parties) . Their marriage was
dissolved by an order for the decree of divorce and division of the joint estate
obtained by the 2 nd Respondent on 14 September 2009 by default, without the
knowledge of the Applicant . On 13 November 2017 , eight years later, t he 1 st
1 In Schoeman v Rokely Farming Co (Pty) Ltd the court found that there was no practical purpose for the
appointment of a liquidator. There were no difficulty with regard to capital contributions and the partnership
was of a very restricted nature.
was of a very restricted nature.
2 Gillingham v. Gillingham , 1904 T.S. 609 where INNES C.J., stated: ‘But where they do not agree the duty
devolves upon the Court to divide the estate, and the Court has power to appoint some person to effect the
division on its behalf. Under the general powers which the Court has to appoint curators it may nominate and
empower someone (whether he is called liquidator, receiver, or curator -perhaps curator is the better word) to
collect, realise, and divide the estate.’
Respondent was on application by the 2 nd Respondent, appointed as liquidator and
receiver mandated to overseer the division of their joint estate.
[3] In fulfilling his ultimate mandate, t he 1st Respondent was in terms of the
general powers and duties of a liquidator bestowed on him, to collate the joint estate
assets, determine their value and or realise them for the purpose of its division. He
was in addition thereto, in terms of a special order, to investigate the issue of a
mortgage bond registered in favour of the Standard Bank of South Africa against the
title deed of the immovable property in the joint estate, to determine what transpired
in respect thereof, and in the event of the 1 st Respondent finding that the joint estate
of the parties suffered a loss as a result of the Applicant‘s conduct in respect thereof,
to make an adjustment in favour of the Applicant in respect thereof.
[4] The immovable property in the joint estate is situated within the Westbrooke
Estates, Roodepoort, (“the property” or “Westbrooke property”). The property was
purchased as a vacant land for an amount of R550 000 by the Applicant during the
subsistence of the marriage and registered only in his name on 21 December 2007 .
The Applicant later built a house on the property. The couple moved into the property
post their divorce unbeknown to the Applicant that their marriage was already
dissolved on 14 September 2009. The Applicant registered the Standard Bank bond
after they have moved into the property. For division of the joint estate th e 1st
Respondent needed to establish the value of the property as at date of divorce.
[5] The parties have reached a deadlock. They differ on what was the state of the
building at date of divorce and thus do not agree on the value to be attached to the
property for the purpose of the division of the joint estat e. Applicant alleges that at
date of divorce, the property was still a vacant stand . The 2nd Respondent on the
date of divorce, the property was still a vacant stand . The 2nd Respondent on the
other hand alleges that on that date, the building or the construction of a house was
complete and in a greement with a valuation of the property at R2 200 000.00
obtained by the 1st Respondent from Root X subsequent to his appointment in 2018.
[6] The 1 st Respondent prepared his 1st report after receipt of statements of
assets and liabilities together with supporting documents from b oth parties and
submissions made on their behalf. Applicant’s documents included r eports from
experts, Municipality officials , the Home Owners Association and some collated by
the 1st Respondent on his own, not being satisfied with some of the information
submitted, including the current valuation of the property after which he prepared his
provisional and final report.
[7] The Applicant rejected the 1st Respondent’s reports contesting the conclusion
the 1st Respondent made based on the R oot X evaluation of the property and other
assets in the joint estate as well as the suggested distribution of 50% thereof. The
Applicant is also d issatisfied with the way 1st Respondent went about fulfilling his
mandate. He accuses the 1st Respondent of biased and delay, hence he seeks 1st
Respondent’s removal and his final report to be set aside . He alleges that the 1 st
Respondent as an agent of the 2 nd Respondent is doing everything in his power to
see to it that the 2 nd Respondent obtains a benefit she is not entitled to. Accordingly
the final report that was received in February 2022 from 1 st Respondent is leaning
towards favouring the 2nd Respondent and therefore should be rejected.
[8] The Applicant further alleges to have become aware that the 1 st Respondent
was extremely and completely biased in favour of the 2 nd Respondent on receipt of
the July 2018 report. This is so since the 1st Respondent was approached by the 2nd
Respondent’s attorneys w ith preconceived instructions and ideas to act in the
capacity of a liquidator. He also had a problem with the reasoning in the 1st
Respondent’s reports , and t he manner in which the 1 st Respondent wanted to go
about exercising his mandate in fulfilment of his duties.
[9] The Applicant accuses the 1st Respondent to have persisted with his
behaviour notwithstanding his attorneys sending a further letter to the 1 st
Respondent on 15 April 2019. He further accuses the 1st Respondent to have always
known of his shortcomings and flaws in relation to the valuation of the property since
known of his shortcomings and flaws in relation to the valuation of the property since
the date of the letter, but to have nevertheless in dereliction of his court assigned
duties refused to accept the various report s, including those from officials of the
Johannesburg metro , various independent experts , civil engineers and certificates
issued by inspectors in respect of the building status in September 20 09. He
accordingly regards the 1st Respondent to be biased and his true agenda to involve
favouring the 2nd Respondent.
[10] The A pplicant argues that the 1st Respondent’s final report ignores all the
correspondence and proof by every legal measure and from all logical reasoning, as
the 1st Respondent has got only one purpose in this matter , that is to benefit the 2 nd
Respondent. As a result , the 1 st Respondent has been dragging his feet since
September 2019 not finalizing this matter and had refused to make up his mind when
he was confronted with the truth. His attorneys finally received the 1st Respondent’s
correspondence with an amended provisional report on 27 September 2021 with
nothing much in it. It is apparent in the report that the 1st Respondent continues to
ignore the overwhelming evidence that proves that he is wrong in his valuations and
assumptions. He is also t rying to evade his duties and refuses to concede his
mistakes.
[11] Applicant points out that the 1st Respondent refused an opportunity to resign
or amend his report accordingly, which he was afforded by his attorneys i n March
2022, following his final report. The 1st Respondent nevertheless persisted with his
final report with a flawed statement of account still based on an incorrect valuation of
R2 200 000 .00. He failed not only to make an effort to establish the value of the
property owned by the 2 nd Respondent but also refused to obtain a value of the 2nd
Respondent’s pension fund as at date of divorce . The 1st Respondent ignored the
credit that is supposed to come to him and simply assigned some or other arbitrary
values.
[12] He consequently approached a Ms Maryna Estelle Symes from Zebra
lnsolvency, a well-known liquidator and receiver who has been practicing as such for
many years. Ms Symes has consented to act as liquidator in replacement of the 1st
Respondent. He lists the powers he seeks Ms Symes to exercise.
[13] The Applicant accordingly implores the court that:
[13.1] He will suffer irreparable prejudice and harm if the 1st Respondent is
[13.1] He will suffer irreparable prejudice and harm if the 1st Respondent is
allowed to continue with his duties as he was willing to threaten the Applicant
with the sale of Willowbrook p roperty in 2019 before his attorneys were on
record.
[13.2] The 1st Respondent should not be entitled to claim any fees in respect
of this matter since he has been acting in a preconceived manner. He did not
have to take charge of any fixed property or any bank accounts and did not
open any kind of bank account anywhere in respect of th e estate and as such
he has had no real expenses. He instead decided on the face of overwhelming
evidence to embark on a frui tless and pointless exercise to try and prove his
preconceived ideas about the state of completion of the property at
Wlllowbrook as at date of divorce.
[13.3] The facts that were presented to the 1st Respondent in 2018 were very
clear and self -explanatory yet he decided to drag out the compilation of a
report for four years to try and somehow justify an undue benefit to the 2nd
Respondent.
[13.4] The lengths to which the 1st Respondent has gone to try and prove the
impossible speaks volumes as to his true motives and the way he became
appointed. He would have brought this application much earlier had the report
been finalised but this was only done now, eventually completed in February of
2022.
[13.5] He submits that once biased is found and even if it is only a subjective
opinion of one of the parties, no person should be allowed to act as liquidator.
The way in which the 1st Respondent is clinging t o his appointment and the
powers afforded to him under the order of November 2017 further proves the
prejudice that he will suffer at the 1st Respondent’s hands if he is not removed
and a neutral objective liquidator takes over this matter.
[13.6] The excuse of the 1st Respondent in his report of February 2022 that
he cannot cross exam ine parties is absolutely untrue . The certificates issued
by independent experts prove that there was no construction on the property
at Willowbrook on the date of divorce. Despite the overwhelming evidence the
1st Respondent clings to his version of events because that is the purpose he
was appointed for, in the first place.
[14] Based on all these accusations the Applicant submits that it is in the interests
of justice that the order be granted as prayed for in the Notice of Motion
1st Respondent’s answer
[15] All the allegations made by the Applicant against the 1st Respondent are
denounced by the 1 st Respondent as being baseless. He denies being biased
against the Applicant but points out that the Applicant is uncooperative , willfully
refuses to cooperate with the process as requested to do.
On the fulfillment of his duties
[16] He confirmed that he received from both the Applicant and the 2 nd
Respondent the asset and liability statements . The November 2009 Willowbrooke
Municipality account statement indicated the market value of the property to be
R1 080 000.00, and utilities to be R12 0000 in arrears. In fulfillment of his mandate
he obtained va luations from Root X for all the property in the joint estate. The
immovable property was valuated at R 2 200 000.00 and to be comprised of 5
bedrooms, 3 bathrooms, 2 Lounges , a Guest toilet, kitchen with pantry, scullery and
lock up garages. He noted that t he Applicant seems to suggest that the whole
structure built on the vacant land was started and completed between 15 September
and November 2009 . W hilst his opinion concluded from reading the certificates
received from the Applicant and the valuation report , is that the construction of the
property ought to have been completed or at an advanced stage at date of divorce.
.
[17] He received responses on his 1st report of 9 May 2018 from both parties by 28
May 2018. The Applicant was not satisfied with the report, he disputed the Root X
valuation on the complete structure, unless valued as a vacant stand at the date of
divorce. The 2nd Respondent‘s submission on the other hand was that the building
was already complete on date of divorce, and they moved in as early as December
2009. In the report he had called for a party that disagrees with his valuation to
2009. In the report he had called for a party that disagrees with his valuation to
submit alternative evaluations within 30 days of receipt of the report.
[18] On 31 May 20 18, the Applicant submitted a one pager va luation that reads,
“17 December 2017, market value as at 15 September 2009” as if the property was a
vacant serviced stand”. The 1st Respondent did not agree with the Applicant that the
valuation shows the property to have been a vacant stand on date of divorce , on the
basis that it is a retrospective estimation had the property been a vacant stand at
date of divorce. The 2nd Respondent on the other hand submitted a screen shot of a
facebook post by the Applicant ’s son dated 11 December 2009, showing a
photograph of a fully built structure on the property. He later received the real photo
in February 2021 . He had taken into consideration that the photo was taken in
December 2009 and when comparing it with a picture taken in 2018, the indication is
that in 2009 at date of divorce there was at least a structure.
[19] He responded to both parties’ submissions indicating that the improvements
resulted in the property being evaluated at R2 200 000.00. “This according to him
implies that there was an extensive capital applied in the improvement of the
structure after date of divorce , h owever, no proof of such has been received ”. He
therefore could not comment any further on that aspect. He asked the Applicant to
submit documentary proof of the fun ds applied and invoices of the expenses
incurred to substantiate the Applicant’s allegations that at date of divorce there was
no structure, the expenditure on the construction commenced thereafter.
[20] The Applicant’s response on 23 August 2018 was a refusal to provide any
further documentation or invoices that will prove that the house was built after the
date of divorce . The Applicant instead made unfounded allegations that he was
biased. The 2 nd Respondent submitted her secondary documentary proof on 6
September 2018 . On 5 November 2018 he addressed correspondence to the
Applicant requesting clarification on specific issues. There was no reply until January
Applicant requesting clarification on specific issues. There was no reply until January
2019 when the Applicant appointed a firm of attorneys, who also ignored his letter of
5 November 2018 and instead sought his removal.
[21] He has deduced from the Electrical Compliance Certificate of 5 November
2009 that the roof must have been completed at that time as the electrical wiring
cannot be done unless the roof and ceiling are finalized. He however, was disputing
the Certificate dated 15 September 2009 on the Foundation . According to him the
date indicates when the certificate was issued not when the inspection was done .
The foundation report was not attached, which could have indicated the date on the
progress report and photographs at specific stages. He tried to contact Mr Joubert,
the appointed civil engineer without success and ultimately found that he was
disbarred on 14 August 2019. His further correspondence to Applicant’s attorneys
was responded to with various insults and allegations.
Inflating the property value to increase costs.
[22] He argues that Applicant’s a ccusation that he is inflating the value of the
property so that his fees can increase has no merit , but a bullying tactic to pressure
him to amend his property valuation to the amount of R550 000, despite the
evidence that is to the contrary. He refutes the likelihood of the property having been
built in a month and a half and emphasized the importance of Joubert’s evidence
under affidavit and the documentary evidence of invoices and payments to prove the
expenses incurred after the divorce, to expedite the process.
[23] Applicant’s attorneys are said to have continued to ignore the contents of his
communication persisting with accusations of his bias towards 2nd Respondent. They
called for him to furnish them with a final and correct factual liquidation and
distribution account failing which they threatened to apply for his removal.
The effect of failure by Applicant to furnish further information or documentation
[24] 1st Respondent argues that should the Applicant have provided him with the
information he had requested , the relevant amendment could have easily been
effected on the liquidation and distribution account. Without further substantiation, he
couldn’t amend the valuation as at date of divorce to be any other amount . He
indicated that he has proceeded to request from the financial institutions copies of
indicated that he has proceeded to request from the financial institutions copies of
financial statements of the parties in order to verify the information. During the period
2020 to 2021 they made verifications from the bank statements received and could
not find anything that is proof of purchase after the date of divorce.
[25] He visited the Municip ality and contacted Woodbrooke Estate Management
for further information. The 2nd Respondent also furnished him with more information
and received nothing from the Applicant. The information from the Estate
Management indicates that the property was a vacant stand when registered on 21
December 2007. The Management received building plans on 13 February 2008 and
payment of the administration fee for the plans on 21 February 2008 and they were
approved on 27 February 2008. On 7 September 2009 the Applicant was inf ormed
that the building must be finished and a Certificate of Occupancy submitted. On 23
September 2009 the Applicant and the 2 nd Respondent were issued with remotes to
the estate. On 1 October 2009 the Estate Management started charging penalties for
failure to obtain a certificate of occupancy. On 29 March 2010. t he Applicant agreed
with the Management for the penalties to be held back until July 2010.
[26] He, requested more statements from the 2 nd Respondent in 2021 after Covid.
In January 2021 he attended a meeting with the Council to verify the Occupational
certificate by Willowbrooke. He was told that the date s are unreliable. He therefore
continued with his investigation. He requested an affidavit from Willowbrooke
Management in 2021. They did not cooperate even after his attorneys formally made
the request.
[27] On 27 September 2021 he distributed an amended provisional report . The
Applicant still want ed him to reflect the property value to be R550 000,
notwithstanding that the municipality value was R1 080 000 as in November 2009.
Applicant persisted that the property was an open piece of land thus not occupiable
and 1st Respondent could have established that by enquiring if parties resided there
at the time . According to him the question is not whether the property was
occupiable but whether the structure was already completed or at a very advanced
occupiable but whether the structure was already completed or at a very advanced
stage of construction. Even if at the least the Municipality account and all extra
evidence is ignored and the Applicant’s version is accepted , construction had
already commenced before 15 September 2009 in terms of the Foundation
inspection certificate and as such the property could not have been an open piece of
land at the time of the divorce.
[28] After receiving further information from the parties he compiled his final report
and submitted it on 21 February 2022. He received a response from 2nd Respondent
on queries raised by the Applicant’ on the Landhoven property. On 10 March 2022
he received a response from Applicant’s attorneys who once again disregarded all
the information submitted to them and instead threatened him. He never received the
information he required from the Applicant to fulfill his duties . Applicant seems to
suggest that the whole building was started and completed between 15 September
and November 2009. In his opinion reading from the certificates and valuation report,
he concluded that the construction o n the property ought to have been either
completed or at an advanced stage as at date of divorce.
[29] He confirms that the following documents were submitted by the Applicant.
The final Occupancy Certificate dated 26 July 2010. A Completion Certificate by the
Municipality dated 9 December 2009. A Completion certificate on the foundation
inspection dated 15 September 2009. Completion certificate on Lithol and concrete
slab dated 6 November 2009 . Roof loading certificate dated 10 November 2009 .
Engineering completion certificate dated 10 September 2009 . Certificate on
Occupational Safety and for Electrical Installation dated 5 November 2009. Plumbing
Compliance Certificate of the City of Johannesburg dated 26 July 2010 . He says all
this implies that the construction on the property was initiated before the date of
divorce. The property was already at an advanced stage of construction at the date
of divorce. As no bond was registered, he needs to know which and how much of the
joint estate’s funds were applied and what was the value of the improvements made
as at date of divorce.
[30] He challenges the timelines presented in the certificates as unlikely and
argues that the certificate of occupancy shows this impossibility when it indicates the
argues that the certificate of occupancy shows this impossibility when it indicates the
foundation and slab inspection to have happened it seems at the same date on 15
September 2009 . Whilst the Completion Certificates in respect thereof indicate an
inspection date of 15 September and 6 November 2009 and finally signed off on 9
December 2009. According to him the dates are unreliable as they differ so vastly.
He reckons it would be reckless and irresponsible of him to accept the dates on the
certificates without a full and further investigation , which is an indic ation of his
impartial and independent stance in the matter.
On the delay
[31] According to him, the delay on his part was caused by the attempts he made
to contact Mr Joubert the civil engineer who m he found out was disbarred . His
investigation documentation exceeds 1000 pages. He has only attached the relevant
documents to the final report. He also did not want to respond to defamatory
statements towards his character and integrity.
On the extra costs incurred
[32] He persists that it is the Applicant who was refusing to furnish him with
documentation to prove his version. He therefore avers that it was due to the
Applicant’s refusal to co -operate that he incurred extra costs as he had to conduct
lengthy investigations with th e Municipality, Willowbrooke and the banks . He also
had to appoint attorneys to assist him with the investigation. The costs include the
valuation costs as well.
[33] He battled with the truthfulness and impossibility of the Applicant’s version
and the credibility of the Municipality Occupational Certificate, the timelines of which
are unrealistic.
[34] He agrees with the relief sought by the 2nd Respondent. As according to him it
is in the interest of justice and will bring finality to the matter. He accuses the
Applicant of wanting to delay the process by applying for his removal and to get a n
opinion which will suit the Applicant’s pocket and his needs whilst acting to the
detriment of the joint estate and respective parties involved.
[35] The 1st Respondent further argues that due to the gross abuse of the court
process by the Applicant and misinterpretation of the facts to suit his version, the
defects in his application , his non-compliance with the rules and the fact that he did
not come to court with clean hands and does not take the court i nto his confidence
by failing to disclose the true facts , making baseless accusations , a cost order
should be granted against the Applicant on attorney and client scale. The 1 st
Respondent submits that the cost order forms part of the joint estate and the costs
be allocated to Applicant’s 50% share.
2nd Respondents answer
[36] According to the 2nd Respondent the Applicant has perjured himself in various
respects, made objections on the report and brought these proceedings to delay the
conclusion of the separation of the joint estate. She suffers an enormous prejudice
whilst the Applicant continues to enjoy the benefits of the use of the property, the
largest physical asset of the joint estate and the erstwhile matrimonial home where
Applicant conti nues to reside whilst she has no benefit in respect thereof even
though she is entitled to also share in the value thereof.
[37] On the final report, s he concurs with the 1 st Respondent that the 1st
Respondent has not misconducted himself in relation to his duties, n either has he
committed a gross irregularity , exceeded his powers nor brought out the report
improperly. The report is not patently unreasonable, irregular or incorrect. As such
the report must be accepted . She denies that there are any grounds for the 1 st
Respondent’s removal.
[38] She confirms all that relates to her that is mentioned in the 1st Respondent
Affidavit. She further points out the time that has passed since the divorce and the 1st
Respondent’s appointment 8 years following the decree of divorce , that they are still
squabbling and have not finalized the division of their joint estate. She therefore
argues that t he order sought by the Ap plicant will cause a further delay whilst the
process starts de novo. In the meantime, the Applicant continues to benefit from the
joint estate, not paying rent or fo r accommodation whi lst she has to incur
accommodation costs despite being a co-owner thereof.
[39] According to her the construction on the property was started and completed
before 15 September 2009, the date of divorce . They moved in, in November 2009
before 15 September 2009, the date of divorce . They moved in, in November 2009
into a completed structure. As proof she referred to the photo posted on social media
by her stepson on 11 December 2009 . A mostly completed immovable property is
reflected. She alleges the photo to show a completed structure which according to
her proves that the structure was complete as at date of divorce. The improvements
on the property were on date of divorce at such an advanced stage that they were
able to move in and occupy the said immovable property during November 2009.
[40] On 5 March 2008 they sold an immovable property situated at
Weltevredenpark, registered in the name of the Applicant for a sale price of
R1,015,000.00. It was transferred to the name of the buyer on 6 August 2008 . The
proceeds received from th at sale were received and applied by the Applicant to
construct and improve the Willowbrooke property.
[41] On 4 May 2009 before the date of divorce she also sold her house in
Lindhaven, Johannesbu rg for a sale price of R500,000.00 . The purchaser paid off
the bond owing in an a mount of R320,000.00. The Applicant collected the
outstanding amount of approximately R180,000.00 from the purchaser, which was
paid in cash instalments as per the agreement with the purchaser until registration of
transfer on 16 October 2009 . The money was applied towards the construction and
improvement of Willowbrooke property.
[42] On 5 May 2008 she received a pension payout in an approximate amount of
R355,000.00. She paid an amount of R300,000.00 to the Applicant on 11 September
2008 for purposes of also utilization towards the construction and improvement of
the Willowbrooke property.
[43] She confirmed that according to the Willobrooke Estate Management the
property was supposed to have been fully developed by September 2009 and
penalties were payable from October 2009. The Applicant negotiated an extension to
obtain an Occupational Certificate by July 2010.
[44] The Applicant registered a bond on the Willobrooke property on 28
September 2010 after the divorce, in the amount of R440 000 without her consent or
knowledge. She moved out of the property during December 2010 which she
indicated must be sold. The Applicant wanted to retain the property.
[45] According to her the 1st Respondent has done all that he was required to do
whereafter he submitted his final report . She sees no reason why he must not be
paid his fees and for somebody else to be appointed. She challenges the relief
sought by the Applicant for appointment of Ms Symes whom he has unilaterally
chosen and for the 1st Respondent and herself to pay costs on an attorney and client
scale, as ridiculous . She instead calls for the application to be dismissed, and the
Applicant to pay the costs on an attorney and client scale.
[46] She seeks in a counter application that the final report be accepted, and the
Applicant be ordered to pay her an amount of R 986 639.65 in the distribution of the
joint estate.
Applicant’s reply
[47] In his reply t he Applicant maintains that the divorce was before the property
was built. He alleges that the 2nd Respondent opportunistically tried to steal from him
after she had obtained a decree of divorce behind his back. She had told him to
ignore the summons that was served on him for a divorce as she was just "angry"
and "did not mean it." At the time there was nothing but an empty stand.
[48] He does not agree that the final report should be accepted . He insists to have
built the house with his own funds after the divorce and the 2nd Respondent to have
wrongly thought she could share in it.
[49] He denies having delayed the whole process and blames the 2 nd
Respondent’s alleged deceit and the fact that she had to find a liquidator who would
assist her by not willing to apply the true facts in the matter . She did not anticipate
the implication of the date of divorce. She was struggling to indicate what parts of the
house were complete on 14 September 2009 but keeps on using the words it was “at
an advanced stage.” He accuses the 1st and 2nd Respondent of distorting the facts to
benefit the 2nd Respondent in a way she is not entitled to on the facts of the matter.
benefit the 2nd Respondent in a way she is not entitled to on the facts of the matter.
[50] He denies that the property was ever a matrimonial home since when they
moved in, they were not married and accuses 2nd Respondent of fabricating stories
in her affidavit as she goes along. He alleges not to be surprised that she supports
all that the 1st Respondent is saying in his reports.
[51] He argues that he had to retain the property after the divorce and had all the
right to register a bond alone as he is the one who had to finish the building works
that were still outstanding. He insists that the building work started on 15 September
2009, a day after the divorce and t hey moved into the property late in December
2009 when the building was finished. He does not deny the photo posted by his son
but argue that the building still did not have windows or doors but was an empty shell
that was still in progress . It was finalised on 11 December 20 09, just before
Christmas.
[52] He denies the 2nd Respondent’s allegations about the sale of two properties,
one registered in his name and the other in 2 nd Respondent’s name , that the
proceeds were used for building the structure in the property . He alleges all that to
be a fabrication that the 2nd Respondent makes as she gets along. He also denies
the 2nd Respondent allegation that money from her pension fund was paid to him and
that it funded the improvements . He points out that the 2nd Respondent also fails to
attach any proof.
[53] He likewise highlights the di screpancies in the averment s made by the 2nd
Respondent in relation to the date they moved into the property , that she has said
that they moved into the property in November 2009. Later on attached the picture
posted by his son and alleged that the picture was posted when they moved in , in
December 2009.
[54] He denies that the property was to have been built by September 2009 and
that the Home owners wanted to penalise them since the house was not com plete
and that they were given an extension to obtain the Occupancy Certificate by July
2010.
On the costs
[55] According to him the fact that the 2 nd Respondent supports the 1 st
Respondent’s argument on the costs is an indication that the y are in c ohorts, the 1st
Respondent being the referee the 2 nd Respondent chose and applied for to be
appointed as the Liquidator. The two are clearly working together and that is why the
2nd Respondent is also supportive of the fees that the 1st Respondent claims he
should be paid . He dis putes 2 nd Respondent’s criticism o f him choosing the
Liquidator alone, arguing that she also did the same when she alone sought the
appointment of the 1st Respondent.
[56] He argues that his costs must be paid by both Respondents since both are
responsible for dragging out the finalisation of the division of the joint estate by
ignoring the true facts and attempted to force him in terms of a false report to sell the
property that the 2nd Respondent contributed nothing to wards as it was not yet built
at the date of divorce. He accuses the 1st Respondent of abusing his powers to
enforce the lies of the 2nd Respondent, since they are in the same corner.
[57] He confirms the averment by the 2 nd Respondent that they moved into the
property in December 2009 which supports what he has been saying all along , that
the property was ready from 11 December 20 09 after the doors and the windows
were installed.
[58] He accuses both the 1st and 2nd Respondent of dragging out the finalisation of
the division of the joint estate , in order to f orce him to sell the property, ignoring the
true and simple facts that 2nd Respondent contributed nothing towards the building.
The 1st Respondent is abusing his powers to enforce the lies of the 2nd Respondent.
[59] He denies the 2 nd Respondent’s allegations that she left the house in
December 2010 due to the infighting and that she moved back in October 2011 and
started looking for a liquidator. He confirmed that certain minor further developments
would have been attended to at that time.
would have been attended to at that time.
[60] In response to 2nd Respondent statement that he had attached letters without
indicating what is relevant therein and they should not be admitted , he accused her
of playing games. He then l ambasted the 1 st Respondent for supporting the 2nd
Respondent. He found the refusal by the 2nd Respondent to admit the content of the
letters from his attorneys and both Respondents’ denial that there was no empty
stand as at date of divorce as shown in the photograph posted by the Applicant’s son
to be senseless . He a lleges the 1 st Respondent’s findings on the pension fund
money to have been ‘used to buy the stand to be untrue but made out to support the
2nd Respondent.
[61] He alleges to be mortified and amazed by the 2 nd Respondent’s comments
that she would deny the purported overwhelming evidence of a fruitless and
pointless exercise by the 1st Respondent or that he had preconceived ideas.
[62] He points out that any person who holds an office of Liquidator and is
appointed to such office by the Court should be objective, truthful in their application
of the facts and in their application of their mind to the facts . The interest of justice
requires a person to apply h is mind to the true facts of the matter , which is not the
case in this matter. He says the 1st Respondent’s biased approach is too obvious to
ignore.
[63] The Applicant also seeks a dismissal of the 2nd Respondent’s counter-
application on the basis that she is in no position to seek an order either for
finalisation or confirmation of the report and compliance therewith , as this was
something she did not initiate or the payment of an amount of R 986 839 65 to her.
Only the Liquidator would have such authority.
Issues to be determined
[64] Whether there is any justification, which is a good cause for the removal of the
1st Respondent as liquidator of the joint estate, looking at the reasons proffered by
the Applicant, relating to the 1 st Respondent’s conduct in the fulfilment of his
mandate, that he was biased, failed to consider relevant information with objectivity
and honesty whilst deliberately delaying the matter and inflating costs. Or if there are
disputes of fact s that requires the matter to be referred for oral evidence , even
disputes of fact s that requires the matter to be referred for oral evidence , even
though raised late in the heads of argument by the Applicant, If not, whether the 2nd
Respondent has authority to apply for the confirmation of the Final repor t, if so if
same should be confirmed.
[65] In an action the burden of proof would have been on the Applicant to show
on a balance of probability a good cause for the removal of the liquidator .
Since these are motion proceedings , where there are disputes of fact the Plascon
Evans Rule is applicable , that is the general rule of resolving disputes of facts
inherent in the matter,3, in that a final order may only be granted if the facts stated by
the Respondent, together with the admitt ed facts in the Applicant ’s affidavit, justify
such an order. Further that “where it is clear that facts, though not formally admitted,
cannot be denied, they must be regarded as admitted.”4
[66] It is however also trite that , in certain instances the bare 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 .5 In such a case the allegations made by the
Applicant may be taken into account in deciding whether the order sought is justified,
unless the Respondent has requested that the Applicant’s deponent be subjected to
cross-examination.6 The court in National Director of Public Prosecutions v Zuma
commented as follows on the Plascon Evans Rule:
“It may be different if the respondent’s version consists of bald o r
uncreditworthy denials, raises fictitious disputes of fact, is palpably
implausible, farfetched or so clearly untenable that the court is justified in
rejecting them merely on the papers.”
Legal framework and Analysis:
[67] For a fair, authentic, and transparent liquidation process , the efficiency,
integrity, impartiality and effectiveness of a liquidator is crucial, as is the same in any
other judicial initiated process. A l iquidator is therefore to avoid any conduct that
3 Plascon-Evans Paint Limited vs Van Riebeeck Paints Pty Ltd 1984 (3) SA 623 A at 634E- 635D
3 Plascon-Evans Paint Limited vs Van Riebeeck Paints Pty Ltd 1984 (3) SA 623 A at 634E- 635D
4 Van Wyk J (with whom De Villiers JP and Rosenow J concurred) in Stellenbosch Farmers’ Winery
Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at p 235 G,
5 see in this regard Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd , 1949 (3) SA 1155 (T) at
pp 1163-5; Da Mata v Otto, NO, 1972 (3) SA 585 (A) at p 882 D - H
6 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26
might compromise the integrity of the process and its outcome , remain impartial or
maintain impartiality during the process; effectively perform his or her duties with
honesty and without any or minimum delays to avoid complains or applications for
their removal . Impartiality connotes being free from any influence or bias, whilst
honesty implies being transparent and acting with integrity and fairness. These being
the overarching principles for an equitable and just division of the joint estate. Failure
in any of the mentioned qualities may lead to a removal.
[68] The Court s however have a wide discretion as to the circumstances in
which they may remove a liquidator. The courts often apply in the appointment
and removals of liquidators for the division of joint estates in divorces, the principles
applicable to the appointment and removal of receivers and liquidators for the
division of assets of commercial partnerships . The all-encompassing requirement
being that there should be sufficient grounds or good cause for the removal of a
liquidator or receiver . What will amount to a good cause will, however, depend
upon the circumstances of each individual case. It can be inter alia, lack of any
of the stated requirements , impartiality, transparency, honesty or effectiveness
and or delay , together or individually .
[69] The removal is therefore not confined to instances of maladministration,
misconduct or personal unfitness as is enunciated in Ma-Afrika Groepbelange
(Pty) Ltd v Millman and Powell NNO7 where the following is stated:
‘Good cause for the removal of a liquidator has also been held to have been
shown where a liquidator has not been independent. This was a ratio of the
judgment in Re Sir John Moore Gold Mining Co (1879) 12 ChD 325 (CA) at
332, where a liquidator was removed because his “interests may conflict with
his duty”. See also Re P Turner (Wilsden) L td (1986) 2 BCC 99 , 567 (CA) at
his duty”. See also Re P Turner (Wilsden) L td (1986) 2 BCC 99 , 567 (CA) at
99, 570 and Re London Flats Ltd [1969] 2 All ER 744 (Ch) at 752E-F, where
it was held that a liquidator should be “wholly independent” and that the
removal of a liquidator should be “in the interests of everyone concerned in
the liquidation”.
7 1997 (1) SA 547 (C) at 561H-J
[70] Furthermore in Prinsloo v Master of the High Court & Others ,8 the court
referred to the summation in Standard Bank v Master of the High Court & Others9 by
Navsa JA of the relevant principles applicable to the removal of liquidators as
follows:
[125] in Hudson and others NNO v Wilkins NO and others 2003 (6)
SA 234 (T) (at para 13) the following appears:
“[13] A liquidator may be removed from office if there is sufficient suspicion
of partiality or conflict of interest, since a liquidator must be and appear to be
independent and impartial. He or she must be seen to be independent since
his duties as liquidator may require him or her to investig ate. (See Re Giant
Resources Ltd [1991] 1 Qd R 107 at 117; Re National Safety Council of
Australia (Vic Division) [1990] VR 29 ([1989] 15 ACLR 355 (SC Vic); City of
Suburban Ltd v Smith [1998] 28 ACSR 328 (FC of A) at 336.) A Court will
exercise its discretion to remove a liquidator if it appears that he or she,
through some relationship, direct or indirect, with the company or its
management or any particular person concerned in its affairs, is in a position
of actual or apparent conflict of interest. In exercising that discretion Bowen
LJ in Re Adam: Eyton Ltd: Ex parte Charlesworth (1887) 36 Ch D 299 at 306
said:
“Of course fair play to the liquidator himself is not to be left out of sight, but
the measure of course is the substantial and real interest of liquidation.”
,…
Further on, the following appears:
‘Although there may be no individual characteristic in itself sufficient on which
to base a conclusion that a liquidator is unfit, there may be a number of
circumstances which combined might force the court to that conclusion. Also
the court might take into account some unfitness on the part of the liquidator
together with what might be in the interests of those persons interested in the
liquidation. A relevant factor is also the costs that would be incurred if another
liquidation. A relevant factor is also the costs that would be incurred if another
liquidator has to come and complete the work that the present liquidator has
8 (28039/17) [2021] ZAGPJHC 38 (3 November 2021) at para 11
9 2010 (4) SA 404 (SCA)
already done. Thus in the circumstances the court will be less likely to
discharge a liquidator towards the end of the winding-up, after he has become
acquainted with the affairs of the company, than it would early in the winding -
up although each one of t hese considerations taken singly might not be
sufficient to justify the removal of the liquidator, taken together they might be.’
[71] It is therefore apparent that independence, that is impartiality, being free from
any influence, would mainly be key in the liquidator’s role . However, simple
complaints or allegations of a perception of bias, partiality, lack of independence or
unfairness without more, will therefore not suffice, nor will it ordinarily be sufficient to
show simply that the liquidator made questionable decisions or committed errors of
judgement. Whilst these deficiencies may point to a lack of competence or
experience, they will not necessarily constitute good or sufficient cause to justify the
removal of a liquidator.10
Applicants’ complaints
Liquidator’s bias
[72] The Applicant’s main contention in this matter is the manner the 1 st
Respondent ha d handled the disagreement between the Applicant and the 2 nd
Respondent on the determination of the value of the Willowbrooke property as at
date of divorce and the 2 nd Respondent’s pension fund payment . The Applicant
accuses the 1st Respondent of being biased, raising also the fact that the 1 st
Respondent was not a ppointed jointly by the parties , but solely chosen by the 2 nd
Respondent through her attorneys allegedly with instructions to act favourably to the
2nd Respondent. As a result, the 1st Respondent has felt obliged to act leniently and
in favour of the 2nd Respondent.
[73] In a case where parties to a divorce cannot agree on a division of the assets,
the only solution is for a receiver or liquidator to be appointed. Ideally, a mutually
10 Ma-Afrika n 12 at 566B-C
agreed liquidator would be preferable to avoid any potential discontent . Hence the
discussion and agreement between the parties on the appointment of a liquidator is
foremost encouraged. However, failing consensus, a spouse or ex- spouse bringing
an application for the appointment of a receiver or liquidator , exercises his or her
right to apply for this. There must be a good reason shown by the court as to why the
appointment of a liquidator should not be allowed. 11 The resultant appointment per
se c annot give rise to an assumption of the liquidator’s bias or likelihood of bias
towards the party on whose behest the liquidator is appointed.
[74] The parties in casu have been divorced for nearly eight years without the
issue of the division of their estate being finalized . Short of an agreement, any of the
parties was therefore entitled to apply for the appointment of liquidator or receiver for
finalization of the remaining disputes relating to the joint estate. The Applicant’s
allegation, following such an appointment, that the 1st Respondent is an agent of the
2nd Respondent, therefore doing everything in his power to see to it that the 2 nd
Respondent obtains a benefit to which she is not entitled, is ill advised.
[75] In S.S.M v P.J N.O and Another12 the court clarified that situation as follows:
“The inherent power of the court to appoint such an officer to assist in the
division goes as far back as in the matter of Gillingham v. Gillingham, 1904
T.S. 609 where INNES C.J., sta ted: ‘But where they do not agree the duty
devolves upon the Court to divide the estate, and the Court has power to
appoint some person to effect the division on its behalf. Under the general
powers which the Court has to appoint curators it may nominate a nd
empower someone (whether he is called liquidator, receiver, or curator -
perhaps curator is the better word) to collect, realise, and divide the estate.”
[76] A receiver or liquidator is therefore an officer of the court , vested with
[76] A receiver or liquidator is therefore an officer of the court , vested with
authority to deal with the assets of the joint estate under the direction of the
court. The effect of the appointment of a liquidator or receiver is to place the assets
11 Maharaj v Maharaj and Others 2002(2) SA 648 (D & CLD) at 652 C
12 (15515/2017) [2023] ZAGPPHC 2024 (18 December 2023)
of the joint estate under his or her authority, to divide the estate in accordance with
the law, for and on behalf of the court. He/she is required to account for the
liquidation and distribution by rendering a liquidation and distribution account, subject
to objection by parties affected thereby. In Coetzer v Coetzer 13 the fo llowing was
said about the office of receiver:
“Applikante het geen locus standi om die aansoek op eie houtjie te doen nie.
Die ontvanger is ‘n geregsamptenaar: hy verteenwoordig die hof. Assulks is
hy ‘n belanghebbende party in die aansoek en applikante se aansoek gaan
mank weens versuim om hom saam te voeg
Vlg:
Gillingham v. Gillingham, 1904 T.S. 609 at 612.)
[77] The power conferred upon a liquidator includes a general power of attorney ,
where justifiable, to market, sell and realize any immovable property, to approach
any financial institution to access statements of accounts, obtain balance s on
statements of savings account , investments and pension funds. This will include
providing the financial institutions with specific instructions to withdraw any amount
from such accounts.
[78] The 1 st Respondent is consequently not acting as an agent of t he 2 nd
Respondent but of the court, carrying a responsibility to the court to divide the joint
estate. The Applicant’s assumption of the 1 st Respondent’s biased towards him,
based on the fact that the appointment was at the behest of the 2 nd Respondent is
misguided.
[79] The Applicant further alleges that the 1 st Respondent was instructed to help
the 2nd Respondent, which made him feel obliged to do so . As a result , the 1st
Respondent went or wanted to go about exercising his mandate in fulfilment of his
duties that indicate lenience to the 2 nd Respondent, exhibiting favouritism. Applicant
alleged that to be proof of 1st Respondent’s lack of impartiality, and unfairness.
13 1955 (1) PH B1 (O
[80] Except for the Liquidator’s general powers and duties granted to the 1st
Respondent in terms of Order annexed marked “F”, he was also specifically ordered
to investigate, inter alia, the registration of a mortgage bond by the Applicant in
favour of Standard Bank of South Africa against the title deed of the immovable
property in the joint estate of the parties, to determine what transpired in respect
thereof, and in the event of the 1 st Respondent finding that the joint estate of the
parties suffered a loss as a result of the Applicant‘s conduct in respect thereof, to
make an adjustment in favour of the Applicant in respect thereof.14
[81] It is understandable that the whole purpose of the whole order was to
facilitate the finalization of the division of the joint estate , to make sure that it is done
equitably, and that the 2nd Respondent is not prejudiced by any conduct that might
have resulted in the jo int estate suffering a loss at the hands of the Applicant , the
party in possession and control of the asset in the joint estate. What the receiver and
liquidator, in such circumstances do, is still to attend to the modus of giving effect to
the court order f or purpose of division of the joint estate. The duty he fulfills is to
receive the assets and liabilities of the joint estate, liquidate same and distribute the
free residue to the parties. In case of a loss suffered by the estate at the behest of
Applicant or any of the parties he is, in terms of the general powers, ordered to
make an adjustment accordingly.
[82] The receiver and liquidator can, when he attends to the modus of dividing the
joint estate, then make an adjustment. He, however, cannot decide whether such an
adjustment must be made or not , the court does,15 hence the order cum instruction.
The special order was specifically made in favour of 2 nd Respondent as the party
who would have likely suffered prejudice in relation to the immovable property in the
who would have likely suffered prejudice in relation to the immovable property in the
joint estate . The Applicant has been in possession and control of the property,
seemingly taking decisions in relation thereto during and after dissolution of the
marriage. The 1st Respondent is therefore obliged to investigate if any adjustment is
necessary to circumvent 2nd Respondent suffering a deficit.
14 This is in line with Section 15(9) of the Matrimonial Property Act 88 of 1989 (the MPA’).
15 M v M (82156/14) [2017] ZAGPJHC 354 (20 November 2017)
[83] The liquidator’s investigation conducted from that perspective would seem to
favour or be lenient towards 2nd Respondent, but is certainly neither indicative of 1st
Respondent’s personal intent to do so, nor justify the criticism resultant therefrom .
Any such criticism is ill advised, unless the Applicant can prove that 1st Respondent’s
conduct was beyond what was reasonably intended by the order.
Overlooking Applicant’s complaints
[84] On the other hand the Applicant’s complaint is that the 1 st Respondent
overlooked his complaint about the deficit information submitted by the 2nd
Respondent and was reluctant to pursue or investigate the complaint as energetical
as he did in Applicant’s circumstances. The Applicant mentioned the issue of the 2nd
Respondent’s Pension and her Landhoven property, the parties’ former abode, the
sale of which was unnoticed by the 1 st Respondent and not mentioned by the 2nd
Respondent. The sale and the Pension were then investigated following Applicant’s
complaint. The allegation that part of the Landhoven sale proceeds in the amount of
R180 000 were collected by the Applicant from the purchaser in monthly instalments
and used on improvements on the property is disputed by the Applicant. No proof
was attached.
[85] On affidavit in a different forum , the 2 nd Respondent had stated that the
property was sold for R650 000. The additional amount of R150 000 was no t
accounted for. The Municipality Account for Landhoven that 2nd Respondent reported
to be still in arrears post registration of transfer in October 2009 , which was an
unlikely situation, was not found. The 1st Respondent reported to have found that 2nd
Respondent received her pension pay out in 2008 already. She alleged to have paid
an amount of R300 000 into the Applicant’s account . The Applicant denied receiving
the money. The follow-up enquiry on the 2 nd Respondent was indeed done with the
insistence of the Applicant. However 1st Respondent lack of vigour is not reflective of
insistence of the Applicant. However 1st Respondent lack of vigour is not reflective of
any bad faith but a disjointed prioritization and focus.
1st Respondent’s alleged disregard of true facts about the property
[86] The Applicant was stern on his accusation that t he 1 st Respondent was
ignoring the true facts about the property and refusing to consider the information
and all the documentary evidence he submitted to indicate the exact state of the
development at the time of divorce and prove that the valuation the 1 st Respondent
put on the property could not have been what the value of the property was at date
of divorce . He accused the 1st Respondent of having always had a preconceived
idea of assigning a specific value to the property in an attempt to assist and benefit
the 2 nd Respondent, despite the information tendered . As a result , the 1 st
Respondent’s final report ignores all the correspondence and proof in every legal
measure, deviates from all logical reasoning, as the 1st Respondent has got only one
purpose in this matter, that is to benefit the 2 nd Respondent. being interested in only
what is stated by her. The 1st Respondent has gone further and threatened to sell
the property even though he is living in it.
[87] This is not correct . This is only a lopsided analysis of the situation around the
report, ignoring the fact that the 1 st Respondent has not been able to get the co -
operation required from the Applicant. The Applicant has refused a request to submit
the information or documents requested regarded by the 1 st Respondent as crucial
for resolving the existing stalemate on the value of the property and reaching finality.
The 1 st Respondent indicated that he otherwise in the Final report had to rely on
Root X’s property valuation of the completed structure. He noted that in his view,
failing Applicant’s cooperation, that is the value of the property to b e considered for
the purpose of determining the distribution between the parties.
[88] The 1 st Respondent refutes the allegations that Applicant’s input was
disregarded and that the property was a vacant land at date of divorce. He rightly
disregarded and that the property was a vacant land at date of divorce. He rightly
had considered the documents submitted by the Applicant prior to obtaining the
valuation. After consideration thereof, he concluded that the certificates imply that
the construction on the property was at date of divorce already initiated and at an
advanced stag e. As no bond was registered, he need ed to know which and how
much of the joint estate’s funds were applied by the date of divorce and what the
value of the improvements were as at that date, which is a reasonable consideration.
He requested the Applicant to submit documents and invoices of expenses on the
said impro vements so as to enable him to make the necessary assessment but
nothing was forthcoming. It is therefore not correct that fact ual submissions w ere
disregarded.
[89] The consideration of the R2 200 000.00 as the valuation of the property at
date of divorce, however goes against the 1 st Respondent’s own assessment he
made on receiving the Root X evaluation, that “the improvements resulted in the
property being evaluate d at R2 200 000.00 which implies that if on the date of
divorce there was no structure as alleged by the Applicant, an extensive capital was
applied in the improvement of the structure after date of divorce, however, no proof
of such has been received. He hence correctly asked the Applicant to submit
documentary proof of the funds applied and invoices of the expenses incurred on the
improvements then to substantiate the Applicant’s allegations that there was no
structure. In my view there is no other sensi ble way of ascertaining if any
construction was already there on the date of divorce than by assessing the
documents sought from the Applicant. More so as it is certain that the structure was
not complete on the date of divorce. As a result , the outstanding documents and
invoices are central to resolving the impasse.
[90] The conclusion on the state of the structure or construction on the date of
divorce should be made from factual evidence. Moreover the Applicant and the 2 nd
Respondent have alluded to improvements made post the date of divorce. The 2 nd
Respondent pointed out that the purpose thereof was to get the Certificate of
Occupancy. I do not find the 1 st Respondent’s conduct to have been deliberate or
intended to please the 2 nd Respondent or to have disregarded Applicant’s
documents nor to have been made in bad faith, considering the resistance by the
Applicant. However the incongruity of considering the 2018 evaluation of R2 200 000
to have been the value of the property at date of divorce following the conclusion he
made cannot be overlooked.
made cannot be overlooked.
[91] The 1st Respondent’s problem with the timelines presented in the certificates
as being unlikely and impossible , especially where it seems the whole house was
built from foundation to roof in 3 months is sensible. Especially, when according to
the Municipality C ertificate of Occupancy the foundation and slab inspection s are
supposed to have been inspected at the same date on 15 September 2009 . Whilst
the Completion Certificates in respect of foundation and slab indicate an inspection
date of 15 September and 6 November 2009 and finally signed off on 9 December
2009. Certainly there was some construction already before the date of divorce . The
dates are unreliable as they differ so vastly .as pointed out by the 1st Respondent.
The 1st Respondent reckons it would have been reckless and irresponsible of him to
accept the dates on the certificates without further investigation, which he argue d
was an indication of his impartial ity and independence in the matter. His explanation
for not accepting the certificates on face value is reasonable. A situation and stance
which I agree can be reassessed on receipt of the information requested. So far, the
implication of a foundation inspected a day after the divorce is that on the date of the
divorce there was a foundation already. It unquestionably creates doubt that nothing
was built on the property yet.
[92] The 2 nd Respondent said he accordingly battled with the truthfulness and
impossibility of the Applicant’s version plus the credibility of the Municipa lity
Occupational Certificate, the timelines of which are unrealistic. He therefore
indicated to the Applicant a sensible way in which the impasse can be resolved. I am
of the view that it is the 1 st Respondent’s prerogative to d oubt any information as
long as the reasons for such doubt are coherent and a sensible way to resolve the
impasse instigated. The solution , a request for the invoices and documentation
showing expenses incurred during the construction was, as indicated by the 1 st
Respondent, made after consideration of the information already tendered by the
Applicant. Applicant’s allegation that the purpose of the request was t o lean on
finding that the property was as per Root X valuation , so as to benefit the 2 nd
Respondent is unfounded. The information requested will instead give insight into
Respondent is unfounded. The information requested will instead give insight into
what was and what was not there on the date of divorce and which of the
improvements were effected thereafter.
[93] 1st Respondent is in terms of the powers bestowed upon him authorized to
take further steps that will enable him to make a proper assessment of the joint
estate and bring the process to finality . The status quo with the Applicant refusing to
comply with the in struction is un acceptable. He has extensive powers as per the
order of the court which he can use to compel 1st Respondent’s compliance, so that
he can fulfill his obligations properly. In Gallam16, the court explained such power as
follows:
“Where such liquidators had been appointed, and there was a dispute as to
their powers, the Court ordered them to carry out their duties (a) by taking
possession of the assets, collecting the debts due to the estate, and
determining and discharging the liab ilities; (b) by demanding from the former
spouses an account of all assets taken possession of or dealt with by them
since the decree of divorce, and delivery of any assets still in their hands; (c)
by dividing the assets s o collected or by selling the sam e and dividing the
proceeds.
The Court also gave the liquidators leave to apply for directions in case of any
special difficulty; interdicted both spouses from in any way dealing with the
assets without permission of the liquidators; and directed the latt er to pay
each of the spouses such sum for maintenance as under the circumstances
they should deem fit, and to report to the Court when the estate had been
finally divided.”(my emphasis)
[94] The implementation of the Root X valuation for the value of the property on
date of divorce is misplaced when considering the averments made by all the
parties, hinting at the construction to have still been probably at an advanced stage
in December 2009 . The 1st Respondent referred to the picture that was posted on
social media by the Applicant’s son , to express his view that, on 11 December 2009
the building was at an advanced stage but not yet complete. The Applicant pointed
out that the windows and doors , inter alia, were not yet installed . Considering also
the Municipality valuation of the property of R1 080 000.00 in November 200 9, it is
probable that the construction on 11 December 2009 was at an advanced stage, but
of not yet complete. In that instance the construction cannot be perceived to have
been complete on date of divorce to justify a postulation of the Root X valuation.
been complete on date of divorce to justify a postulation of the Root X valuation.
[95] It recently became settled law that the date upon which the value of the joint
estate is to be determined is indeed the date of the divorce. 17 The estate can only
suffer loss prior to or on the date on which the value of the joint estate is to be
16 Supra
17 Brookstein v Brookstein 2016 (5) SA 210 (SCA) at para 15 to 21
determined, unless proven that the transaction had the effect of diminishing the
value of the estate as at date of di vorce. Hence the issue of the bond that was
registered after the divorce can not f orm part of the joint estate . The difficulty of
establishing the value of the property at date of divorce is real and daunting without
the co-operation of the parties.
[96] The 1 st Respondent is clothed with a wide range of power including
approaching the court for any further direction as he may consider necessary, or to
institute any legal proceedings against any person for the delivery to him of any
assets, deeds or documents r elating to the joint estate in whatever court it shall be
appropriate to do so. The court can therefore be turned to, where there is an obvious
indication of concealment of evidence or refusal to tender necessary information.
[97] Nevertheless even thoug h there has been an error of judgment on further
steps to be taken in such a situation, that is reliance on the Root X evaluation, the
Applicant has failed to prove 1st Respondent deliberate and or mala fide intention
and disregard of the information he tendered. The Applicant was actually
instrumental in delaying the resolution of the impasse, determined not to co-operate.
In so doing so, he frustrated and prevented a proper assessment of the value of the
property on the date of divorce.
Inflating costs by unwarranted conduct
[98] The 1st Respondent’s explanation of the difficulty he experienced in getting the
co-operation of the Applicant is not disputed. Certain aspects of his investigation on
the state of the property at date of divorce could have been easily clarified , t he
situation being friendlier and easier with Applicant’s full co -operation. The
improvements on the property and the dates they were effected established from the
submitted invoices or documentation . Bar that information, t he 1 st Respondent’s
subsequent endeavor to collate further information from the b anks, Estate
subsequent endeavor to collate further information from the b anks, Estate
Management and the Municipality , occasioned by the Applicant’s refusal to
co=operate, is defensible.
[99] The 1 st Respondent explained that he could not rely on the certificates
furnished as there were some discrepancies in the information at the Municipality
and that of the Engineer, the Inspecto rs and the Estate Management. All this
warranted clarification from the Applicant failing which a further investigation. The
Occupation Certificate did not offer any guaranteed information either. The 1 s
Respondent therefore had to ascertain the true state of the building as at date of
divorce, hence the call for further evidence, and when non was forthcoming, it
became necessary to further investigate. There is nothing that justifies the
Applicant’s suggestion that the purpose of the investigation was to in flate the costs
or for sanctioning the costs as proposed by the Applicant given the Applicant’s own
conduct. It renders it justifiable that the joint estate carry the costs. The Applicant’s
argument that the 1st Respondent forfeits the expenses incurred has no merit.
[100] Furthermore, the allegations that 1st Respondent tried to evade his duties and
refuses to concede his mistakes are unsubstantiated. The Applicant’s argument and
conduct refusing to co-operate and assuming that every decision or step taken was
with an intention to favour the 2 nd Respondent, frustrated the process and impacted
on the costs. The 1st Respondent cannot be blamed to have inflated the costs.
On the delay and costs
[101] Applicant’s complaint is that 1 st Respondent had been dragging his feet since
September 2019. He did nothing to finalise this matter, including refusing to make up
his mind when he was confronted with the truth. He took long with his amended
provisional report on 27 September 2021 with nothing much in it. Furthermore that,
not only did 1 st Respondent respond late to correspondence from the Applicant’s
attorneys, he took time with his reports insisting on information or documentation that
had nothing to do with the joint estate as at date of divorce, persisted with his
had nothing to do with the joint estate as at date of divorce, persisted with his
behaviour even after a further letter sent to him on 15 April 2019.
[102] There was indeed a bit of a delay with the 2 nd provisional report even with the
further investigation conducted. It is however not correct that the information sought
by the 1 st Respondent has nothing to do with the joint property at date of divorce.
The determination of what was there prior the date of divorce is vital for the purpose
of ascertaining if an adjustment necessary . It is also not correct that 1 st Respondent,
knowing his limitations should have started right away with the investigation. His call,
first for t he parties to submit any documentation or invoices related to what was
constructed and when as part of the investigation was practical. He was then justified
to endeavour to obtain the required information in the manner he did, after
Applicant’s continuous resistance. It is unfortunate that the investigation did not yield
the envisaged positive results.
[103] The numerous chances g iven to the Applicant to submit the necessary
documents to prove his version was part of the delay . The 1st Respondent attempts
thereafter to investigate the situation and to try and find the Engineer caus ing a
further delay. The investigation documents apparently exceed 1000 pages even
though only the relevant documents are attached to the final report . A fact not
refuted. The lengthy investigations were conducted with the Municipality,
Willowbrooke, Estate Management and the banks. It necessitated extra time and
costs to be spent on the matter . In my view, the further investigation, the
appointment of attorneys and the valuator was necessary and in accordance with his
powers. Had the Applicant pro vided the information requested , the relevant
amendment could have been made on the liquidation and distribution account ,
without any further delay and some of the costs incurred avoided.
[104] The Applicant has furthermore argued that the 1st Respondent should not be
entitled to claim any fees in respect of this matter since he has been acting in a
preconceived manner, he did not have t o take charge of any fixed property or any
bank accounts and did not open any kind of bank account anywhere in respect of the
estate, as such he has had no real expenses. He instead decided on the face of
overwhelming evidence to embark on a frui tless and pointless exercise to try and
overwhelming evidence to embark on a frui tless and pointless exercise to try and
prove his preconceived ideas about the state of completion of the property at
Wlllowbrook as at date of divorce.
[105] Applicant’s allegations of 1st Respondent acting in a preconceived manner are
not backed by any rational argument. According to the 1 st Respondent he could not
accept the word of the Estate Manager , Municipality officials and the Engineer if not
supported by an affidavit to remove any doubt, especially concerning inconsistencies
he had pointed out. Since the affidavits were also not forthcoming, the verification
was unattainable and further steps necessitated. On the other hand , had the
Applicant responded positively to the 1 st Respondent’s request and tendered the
information sought in time, the matter could have been resolved without any del ays.
The continued rebuffing of the requests, plus the unreasonable persistence with
threats to remove the 1st Respondent unless he acquiesces to the amendment of the
Final report without the required evidence , put the Respondent in an unwarranted
position, his authority undermined . The Applicant fails to proffer any cogent reason
for 1st Respondent to forfeit the expenses he incurred.
[106] Additional costs can still be curtailed if the Applicant furnishes the 1 st
Respondent with the required information since it will not be necessary for any
further legal steps to be taken to compel him to do so , which the 1st Respondent is
empowered to can do. A proper determination of the value of what constituted the
joint property at date of divorce has still to t ake place. It cannot be served by the
alternate assumption of the valuation of the complete structure when it is obvious
that it was not the case at date of divorce.
Counter-Application by the 2nd Respondent
Confirmation of Final Report
[107] The decision on this issue only follows at this stage since it was dependent on
the outcome in the application for removal of the 1 st Respondent. The Applicant ’s
opposition of the Application on the basis that the 2nd Respondent cannot seek an
order for confirmation of the Liquidator’s Final Report, is misguided. Confirmation of
a Final Report can be by the Liquidator or any affected party. In S.S.M v P.J N.O and
Another18 the following was stated:
“after consideration of all submissions, in the liquidator’s account (also called
a report or liquidation and distribution account) – which in itself has no legal
a report or liquidation and distribution account) – which in itself has no legal
18 (15515/2017) [2023] ZAGPPHC 2024 (18 December 2023 At [18]
force. If all parties accept same that is normally the end of it. If not, the
liquidator (or any affected party) should approach the court to ensure finality.
The court, having the privilege of further o ral and other evidence, should then
either confirm, amend or clarify the account and grant, where necessary
further and alternative relief to enable the liquidator to bring the joint estate to
practical conclusion.”
[108] The Applicant’s argument is therefore not correct that since the Final Report
(or the Liquidation and Distribution account) is something the 2nd Respondent did not
initiate, she is in no position to seek an order either for its finalization or confirmation.
and compliance therewith . Further t hat o nly the Liquidator would have such
authority. Absent an agreement between the Applicant and the 2 nd Respondent, the
court can be approached by either of the two as the affected parties or the 1st
Respondent as Liquidator, in an endeavor to bring the matter to finality. T he court’s
wide discretion in that instance is clearly outlined in S.S.M supra.
[109] However, in casu, the confirmation of the report is not yet supported by the
evidence. It still has to be attended to, given the Liqu idator’s requests of further
information which is still to be responded to. The exact state of affairs, regarding the
construction at the property on the date of divorce , is still to be established to enable
the resolution of its valuation . The issue cannot be regarded as finalized with the
required evidence still outstanding. No further delays can be afforded. It is up to the
Applicant to disclose that information which is in his control and curtail any further
delays and expenses given the history of this matter.
[110] The Applicant has in its heads of argument argued for th e matter to be sent
for oral evidence. As the party who is holding over the crucial evidence required, he
has failed to make a case why the matter should be further delayed by reference to
has failed to make a case why the matter should be further delayed by reference to
trial when such evidence can be expeditiously s ubmitted by him and also by
deposing to a further affidavit.
[111] The 1st Respondent is obliged to exercise the power vested on him to take
the necessary steps to compel the Applicant to submit the evidence in his
possession that will enable a realistic and proper verification of what may have been
the value of the property on date of divorce.
[112] There has been a major delay in the administration of th e joint estate in this
matter by the 1st Respondent. The whole process embroiled in disagreements due to
the Applicant having had no faith in the 1 st Respondent, right from the beginning
refusing to cooperate. The court, has looked at all the aspects raised in this matter
and decide d on the appropriate steps to be taken henceforth, to bring the matter
closer to finality including the justness of the removal or retention of the Liquidator at
this stage.
[113] Furthermore on the removal of a liquidator, noted enunciation in S.S.M, that:
“Although there may be no individual characteristic in itself sufficient on which
to base a conclusion that a liquidator is unfit, there may be a number of
circumstances which combined might force the court to that conclusion. Also,
the court might take into account some unfitness on the part of the liquidator
together with what might be in the interests of those persons interested in the
liquidation. A relevant factor is also the costs that would be incurred if another
liquidator has to come in and complete the work that the present liquidator
has already done. Thus, in the circumstances, the court will be less likely to
discharge a liquidator towards the end of the winding-up, after he has become
acquainted with the affairs of the company, than it would earl y in the winding-
up. Although each one of these considerations taken singly might not be
sufficient to justify the removal of the liquidator, taken together they might be.”
Conclusion
[114] The Applicant has failed to make a case for the removal of the 1 st
Respondent by proving a reasonable apprehension of bias towards 2nd Respondent,
alleging instead an apprehension influenced by the manner in which the 1 st
Respondent came to be appointed to administer the division of the joint estate .
Respondent came to be appointed to administer the division of the joint estate .
According to him this has resulted in a conduct that indicated 1st Respondent’s
intention to satisfy or conform to 2 nd Respondents needs . 1st Respondent may
nevertheless happen or seemed to have had no disagreements with 2nd Respondent,
or to be more lenient by affording her a longer period to respond to queries , readily
accepting her answers and leaning towards her explanations, however there was no
prejudicial or dereliction of duty with an intention of favoring the 2nd Respondent that
was proven.
[115] The Applicant has in addition failed to prove that it was unreasonable for the
1st Respondent to refuse to accept as sufficient what the Applicant has submitted as
proof that there was no construction on the property at date of divorce . Moreover,
that the request for further information was influenced by any bias and inclined to
benefit the 2 nd Respondent except for what has been envisaged in terms of the
order.
[116] Further, there being no cogent reasons at this stage for removal of the 1 st
Respondent as canvassed by the Applicant, even though a measure of mistrust
between the Applicant and the 1 st Respondent seems to now exist, the removal will
serve no purpose except to further delay the matter and add on the costs.
[117] The call by the Applicant in the alternative that the matter be referred to trial is
irrational and would result in a further waste of time . Especially when what is
required to bring the matter to finality is obvious to both parties. The call is reliant on
a fictional dis pute of fact that he created by continuing to withhold the information
requested by the 1st Respondent and refus ing to co -operate. The matter can be
resolved rather speedily by his compliance, on failure the 1 st Respondent can
exercise the power already bestowed on him to compel compliance.
[118] On the costs , in bringing this application the Applicant was acting in his
personal capacity not in the interest of the joint estate . It is therefore appropriate that
his 50% portion of the joint estate should bear the costs occasioned by this
application.
[119] In the result the following order is made:
1. The Applicant’s application for removal of the 1 st Respondent as liquidator of
1. The Applicant’s application for removal of the 1 st Respondent as liquidator of
the joint estate is dismissed.
2. The 2 nd Respondent’s application for confirmation of the Final report is
postponed sine die
3. The Applicant is to pay the costs of the Respondents which costs would form
part of the joint estate and upon division is to be charged to Applicant’s 50%
by an adjustment effected accordingly, in favour of the 2nd Respondent
_________________________
N V KHUMALO J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
On behalf of Applicant: Adv H D BAER
Instructed by: Chris Janeke Attorneys
sonelda@chrisjaneke.co.za
maxbaer@law.co.za
On behalf of 1st Respondent: Adv L PIERCE
Instructed by: F A Steyn Attorneys
Lauren@LPLaw.org
cisca@fasteynattorneys.co.za
On behalf of 2nd Respondent: Adv M FABRICIUS
Instructed by: Shapiro & Ledwaba Attorneys
luca@shapiro-lidwaba.co.za
marifabricius@gmail.com