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
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 62061/2020
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates NO
In the matter between:-
M[...] J[...] H[...] Applicant
and
THOMAS HAYLETT SIEBRITS 1st Respondent
W[...] H[...] 2nd Respondent
JUDGMENT
Reid J
Introduction
[1] The applicant and the 2 nd respondent were divorced during February
2017. The 1st respondent was appointed by this Court as liquidator in
2017 in terms of the divorce order, to attend to the division of the
universal partnership between the applicant and the 2nd respondent.
[2] The applicant seeks to terminate the 1 st respondent’s mandate as
liquidator, alternatively to order the 1 st respondent to attend to finali se
his mandate as liquidator. The 1 st respondent contends that the relief
sought is moot, as the universal partnership has been divided between
the parties.
[3] The 1st respondent’s determination of the division of the universal
partnership in essence entails that the applicant must pay the amount
of R985 ,425.16 (Nine Hundred and Eighty Five Thousand Four
Hundred and Twenty Five Rand and Sixteen Cents) to the 2nd
respondent and that the applicant should sign the necessary
documentation for the transfer of a property owned by the parties,
situated in Parys (“the Parys property”) to take place into the name of
the Second Respondent.
[4] The 1st respondent conveyed this division in correspondence dated 22
October 2022 and holds that this is the final division of the universal
partnership.
Material factual background
[5] The assets in the universal partnership of the 1st applicant and the 2nd
respondent are substantial. It includes two fixed properties as well as a
business. The 1st respondent prepared a l ist of assets and debt which
was sent to the parties on 23 June 2022, for their inputs.
[6] On 13 October 20 22 the 1 st respondent directed correspondence to
both the applicant and the 2nd respondent. Although the
correspondence is lengthy, it is important to quote in this judgment, to
place the division of the universal partnership in context. The
correspondence reads as follows:
“DIVISION OF UNIVERSAL PARTNERSHIP: MR H[...] & MRS
H[...]
1. Find attached hereto the final list of assets and liabilities
together with calculations and division of the universal
partnership.
2. The parties agreed that a universal partnership was formed
during their marriage and that each party has a 50% interest
in the partnership relating to the immovable property at Parys
and Hazyview as well as the business that was conducted as
Monkeybirds at Hazyview.
3. Calculations of the assets and liabilities was made on the
available documentation and although separate calculations
was done for the above mentioned assets that formed part of
the universal partnership the list of assets and liabilities with
values was calculated jointly to draft a final reconciliation
report that indicate the amount of R985 425.16 to be payable
by Mr H[...] to Mrs H[...] on the assumption that the property
at Parys be transferred from the na me of Mr H[...] to Mrs
H[...] and that she take over responsibility for payment of the
outstanding bond amount and that Mr H[...] retain ownership
of all the apes and birds previously valued by Dr Otto at
Monkeybirds together with all the other movable property
with the exception of the dismantled poles, wires and gages
that must be sold by the parties whereafter the proceeds
must be equally shared. The above amount is calculated as
follows:
Due to Mrs H[...] — Monkeybirds: R2,860,724.30
Less due to Mr H[...] — Parys property: R1 ,612,855.79
Less due to Mr H[...] — Hazyview property: R262,443.35
Balance amount due to Mrs H[...]: R 985,425.16
4. The costs payable to transfer the property situated at Parys
from Mr H[...] to Mrs H[...] must be paid in equal shares and
the nominated firm to take care of the transfer must be an
independent firm not familiar to either Mr and/or Mrs H[...].
5. The division of the universal partnership was a tremendous
tedious exercise and rather difficult, specifically as sufficient
and substantial proof of all allegations made by both Mr and
Mrs H[...] was not received. The writer hereof was thus
limited to the available information received on a peace meal
basis over a period of time and the bank statements received
from the parties.
6. Neither Mr or Mrs H[...] will be completely satisfied with the
division of the universal partnership. It normally happens in
contested divorce matters that neither party is satisfied with
the final outcome. In this matter various attorneys and
advocates was involved in the past in an attempt to reach a
settlement between the parties, unfortunately to no avail. The
parties then decided not to proceed with the matter on trial
but to rather appoint the writer hereof as referee.
7. The report was drafted to be fair and reasonable towards
both parties. Various attempts (were) made by both parties to
convince the writer hereof to take certain alleged assets and
liabilities into consideration. The writer hereof will not
advance reasons herein for not including certain alleged
assets and liabilities in the calculations but must state that all
submissions made by both Mr and Mrs H[...] was duly
considered before the final report was drafted.
8. After the first list of assets and liabilities was presented to the
parties submissions was received from both Mr and Mrs H[...]
and based thereon this report vary in some instances from
the previous report. We refer in this regard to inter alia the
R800000.00 deposit paid towards the Parys property, inputs
by Mr and Mrs H[...], Staalstad payment and the dismantle of
the park amongst other items.
9. The content of paragraph 4.3.3.2of the settlement agreement
concluded between the parties provide inter alia for the
following:
“Nadat Mnr Siebrits die lys van bates en laste opgestel
het soos vermeld, sal beide partye weer 'n geleentheid
gegun word om voorleggings aan Mnr Siebrits te maak,
waarna Mnr Siebrits 'n finale lys van bates en laste sal
opstel, wat dan deur albei partye aanvaar sal word as
synde die bates en laste van hierdie besigheid".
10. The above refer (s) to the Monkeybirds business. From the
content thereof it is evident that the parties will receive a
further opportunity to make submissions in regard to the
business that was known as Monkeybirds and conducted in
Hazyview. Both parties will receive the opportunity to provide
further submissions for consideration, limited to when they
started to build the park in Hazyview and until the park was
closed as liabilities incurred prior to the conducting of
Monkeybirds in Hazyview and also after the business
operated in Hazyview was closed is according to the writer
hereof irrelevant for purposes of division of the universal
partnership.
11. Kindly note that clause 4.5 of the settlement agreement
indicate that after a final list of assets and liabilities together
with their values is drafted the parties will receive a final
opportunity to reach a settlement on the final division. We
thus afford both parties the opportunity in terms of clause
4.3.3.2 of the settlement agreement to make final
submissions, if any, regarding the business Monkeybirds that
was conducted in Hazyview on/before 19 October 2022. The
writer hereof will then consider the submissions and make a
final finding on 21 October 2022. The parties must then make
themselves available for a roundtable meeting at the offices
of the writer hereof on 25 October 2022 at 10h00 to discuss
the conclusion of the matter in terms of clause 4.5 of the
settlement agreement.
12. Your urgent response and confirmation of the proposed date
must be sent to our offices to bring this matter to finality.”
(own emphasis)
[7] This letter f orms the basis of the 1 st respondent’s contention that the
universal partnership has been divided. The applicant, however, holds
the view that the fact the content of paragraph 11 indicates that the
division is not final, as it indicates:
“The writer hereof will then consider the submissions and make
a final finding on 21 October 2022. The parties must then make
themselves available for a roundtable meeting at the offices of
the writer hereof on 25 October 2022 at 10h00 to discuss the
conclusion of the matter in terms of clause 4.5 of the settlement
agreement.” (own emphasis)
[8] The applicant attended the roundtable meeting whilst the 2 nd
respondent elected to not attend. The applicant was not satisfied with
the division and held a different view, which division will be more
favourable to the applicant.
[9] The 1st respondent considered the inputs of the applicant and informed
the applicant i n January 2023 that he could not find any merit to vary
the final division. The 1 st respondent again directed correspondence
on 6 April 2023 to confirm the division of universal partnership as set
out in his correspondence dated 13 October 2022.
[10] The attorneys on record for the 2nd respondent confirmed in
correspondence to the attorneys on record for the applicant on 5 May
2023 that the final division was already made.
[11] The applicant issued an application in 2023 in the Free State High
Court under case number 1690/2023 , in relation to the property in
Parys. The outcome of that application was not in favour of the
applicant. The result of that application was that a ll the rights and
obligations in the Parys property vest with the 2nd respondent in terms
of the 1st respondent’s final division of the universal partnership.
[12] The factual dispute in this matter is whether the universal partnership
has been finally divided or not. The applicant avers that it has not been
done, whilst the 1st respondent avers that the universal partnership has
been divided.
Legal position
[13] The applicant seeks an interdict.
[14] It is trite law and established firmly in our law in Setlogelo v Setlogelo
1914 AD 221 that the requirements for an interdict are (a) a clear right
(b) an injury actually committed or reasonably apprehended (c) no
alternative remedy.
[15] The applicant has a clear right that the universal partnership be
divided. He does not have a clear right that the universal partnership
be divided in accordance with his calculations and his view. The
applicant does not comply with the first requirement of an interdict, and
as such is not entitled to the relief sought.
[16] The determination of factual disputes has been set out in the well-
known matter Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
1984 (3) SA 623 (A) . It was determined that, in the event of a true
factual dispute , an interdict could only be granted in motion
proceedings where the facts stated by the respondent, together with
the facts admitted by the applicant, would justify such an order.
[17] The 1 st respondents’ version of the facts indicated that the universal
partnership was finally divided. This does not support the version of
the applicant that the universal partnership was not finally divided. In
application of the “Plascon Evans” Rule, the applicant would not be
entitled to the relief sought.
[18] In the result, the application is bound to be dismissed.
Costs
[19] The general principle is that the successful party is entitled to its costs.
I find no reason to deviate from the general principle and the applicant
should pay the costs of the 1st respondent.
[20] The 2nd respondent did not oppose the application and was cited on the
basis that she has an interest in the outcome of the application. No
relief was sought against the 2nd respondent.
[21] The normal scale of costs is party and party costs, as described in Rule
67A as Scale B. I find no reason to deviate from the normal scale of
costs.
[22] The applicant should thus pay the cost of the 1st respondent on a party
and party basis Scale B.
Order
[23] In the premise, the following order is made:
(i) The application is dismissed.
(ii) The applicant is to pay the costs of the 1 st respondent on Scale B
being party and party costs.
FMM REID
JUDGE OF THE HIGH COURT
GAUGENG DIVISION PRETORIA
DATE OF ARGUMENT: 4 AUGUST 2025
DATE OF JUDGMENT: 3 NOVEMBER 2025
APPEARANCES:
FOR THE APPLICANT: ADV XAVIER VAN NIEKERK
INSTRUCTED BY: GEY VAN PITTIUS ATTORNEYS
EMAIL: johan@geylaw.co.za
FOR THE RESPONDENT: MR SWANEPOEL
INSTRUCTED BY: SWANEPOEL & PARTNERS
C/O FINDLEY & NIEMEYER ATTORNEYS
EMAIL: melissa@swanvenn.co.za