SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Reportable
Case no: A283/2024

In the matter between:
J[...] G[...] S[...] APPELLANT
and
S[...] E[...] S[...] FIRST RESPONDENT
ABSA BANK LIMITED SECOND RESPONDENT
THE SHERIFF OF THE HIGH COURT, STRAND THIRD RESPONDENT
SHAMEEZ SILJEUR FOURTH RESPONDENT
LEE MARC CAMERON ALLOYS FIFTH RESPONDENT

Coram: SHER J, MANGCU-LOCKWOOD J, BHOOPCHAND AJ
Heard: 10 October 2025
Delivered: 17 November 2025
Summary: Leave to enter into a transaction to alienate immovable property
belonging to the joint estate in a marriage in community of property. The
application of section 16(1) of the Matrimonial Property Act , 88 of 1984, and

the provisions of the National Credit Act , 34 of 2005 considered. The common
law remedy of the actio communi dividundo held not to be applicable. Appellant
showed good cause in the Court a quo to dispense with the spouse’s consent,
whilst the latter’s withholding of consent was unreasonable. The appeal is
upheld.


ORDER

1. The Appellant’s application to adduce further evidence on appeal is granted.
2. The appeal is upheld, and the order of the Court a quo is set aside and replaced
with the following order:
2.1 The App licant is granted leave under section 16(1) of the Matrimonial
Property Act, 88 of 1984, to enter into a transaction to alienate , i.e., to sel l
the property described as erf 1[…] (held under deed of title T […]), Strand,
also known as 3[…] R[...] Street, Rusthof, Strand (‘the property’).
2.2 The First Respondent is directed to take all such steps and sign all such
documentation (including but not limited to the deed of sale) as may be
required, in law, to ensure that the property is sold, transferred to and
registered in the name of any bona fide purchaser who offers to purchase it
at a price exceeding the reserve price of R800 000 as set by the Western
Cape High Court on 13 December 2024 ), currently being Paxar Trading
(Pty) Ltd wh ich has offered to purchase the property for R990 000 (nine
hundred and ninety thousand rand).
2.3 If the First Respondent should fail, neglect, or refuse to comply with
paragraph 2.2 above within five (5) business days of being requested to do
so in writing ( and such failure, neglect, and/or refusal is confirmed on oath
by the conveyancer), the Sheriff of the High Court, Strand (i.e., the Third
Respondent) is hereby authorised and directed to do such things and sign
such documentation as may be necessary to give effect to the order in terms
of paragraph 2.2 above.

2.4 The costs of the application (including the costs of Counsel on Scale A)
shall be paid on a party and party basis from the net proceeds of the sale
after the balance outstanding on the bond registered over the property, the
bond cancellation costs, the Second Respondent’s legal fees, the costs
incurred to obtain the necessary certificates of compliance to pass transfer,
municipal rates, taxes , and/or service charges , the estate agent’s
commission, and any other expenses as may be necessary to be incurred to
secure the transfer of the property as provided for in paragraph 2.2 above
are paid.
2.5 Should there be any remaining funds, they are to be transferred to and held
in the trust account of the Appellant’s attorney pending the division, if any,
of the joint estate . To the extent that the net proceeds of the sale are
insufficient to pay the costs of the application, they shall be paid from the
First Respondent’s equitable share of the joint estate upon division.
3. First Respondent shall be liable for the costs of the appeal including the costs of
Counsel on Scale A , and shall be recovered in whole or in part , as the case may
be, from the First Respondent’s equitable share of the joint estate upon division.
.


JUDGMENT




Bhoopchand AJ (Sher et Mangcu-Lockwood JJ concurring):

[1] This appeal addresses the legal authority of a spouse married in
community of property to dispose of immovable property which forms p art of
the joint estate in a situation where the other spouse withholds consent. It
involves the application of the relevant provisions of the Matrimonial Property

Act 88 of 1984 (‘Matrimonial Property Act’, ‘MPA’) and the National Credit
Act, 34 of 2005 ( ‘National Credit Act’, ‘NCA’). As will be explained later in
this judgment, the common law remedy of the actio communi dividundo did not
apply to the relief sought by the Appellant in his application before the Court a
quo.

[2] The Appellant and the First Re spondent (‘the couple’) are co -owners of
Erf 1 […], Strand, also known as 3 […] R[...] Street, Rusthof, Strand (‘the
property’), in accordance with their marital regime. In 2014, the Second
Respondent extended a loan pursuant to a loan agreement to facilitat e the
acquisition of the property. A mortgage bond (‘the bond’) was registered over
the property in favour of the Second Respondent.

[3] The Appellant and the First Respondent defaulted on their loan payments
during 2021, concurrently with the First Respon dent leaving the property with
the couple’s minor daughter on the 9 th of March of that year. The Appellant has
instituted divorce proceedings against the First Respondent, and the matter is
currently in the pre-trial stage. On 19 July 2023, the Second Respondent, ABSA
Bank, obtained judgment in this Court against the couple in the amount of
R536 241.37, being the balance that was then due and owing in respect of
monies loaned and advanced, as secured by the bond . The property was also
declared specially exe cutable, and the Court directed that it be sold with a
minimum reserve price of R910,000. The municipal valuation of the property
ranged between R1.3 million and R1.4 million. The execution of the Court
order was formally suspended for a period of six months to allow the Appellant
and the First Respondent the opportunity to negotiate and finalise a private sale
of the property. The Appellant and the First Respondent were ordered to pay the
Second Respondent’s co sts on an attorney and client scale as incurred until 6
October 2022. The First Respondent was ordered to pay the Second

Respondent’s costs incurred after 6 October 2022. The reason for the
differential cost order granted against the Appellant and the Firs t Respondent is
unexplained.

[4] The sale in execution of the property occurred on 5 June 2024. The
Sheriff obtained a single bid at the auction for R500 000. Shortly thereafter, on
14 June 2024, the Appellant received a private offer from the Fourth and Fi fth
Respondents to acquire the property for R980 000. The Appellant’s legal
representatives approached the First Respondent the following day to request
her consent to the transaction. She declined to give it. The Appellant signed the
offer to purchase on 17 June 2024. During this impasse, the Second Respondent
stated its intention to initiate an application in terms of Rule 46A (9)(d) of the
Uniform Rules of Court (‘URC’) to reduce the reserve price from R910,000 to
R500,000, thereby facilitating the sale to the bidder who had made that offer on
auction. The Appellant approached the Court urgently to order the First
Respondent to consent to the sale of the property. The Court a quo’s decision to
dismiss his application without an order as to costs is the sub ject of this appeal.
The Appellant appeals the entire judgment and order delivered by the Court a
quo on 4 September 2024.

[5] In the interim, the Fourth and Fifth Respondents had extended their offer
to purchase the property to 31 August 2024. The Second R espondent indicated
that it would reinstate the loan agreement only if the arrears and its legal costs
had been paid and proceeded with its application to reduce the reserve price on
the property. The Fourth and Fifth Respondents then withdrew their offer to
purchase the property. A new purchaser, Paxar Trading (Pty) Ltd, stepped into
the breach with an offer of R990 000 for the property, with the offer remaining
open until the conclusion of this appeal. The Second Respondent obtained an
order reducing the minimum reserve price to R800 000 on 13 December 2024.

[6] In his founding papers in the application, the Appellant detailed the
circumstances leading to it, outlined his communications with the First
Respondent concerning the necessity for a private sale of the property, analysed
her reasons for declining to consent to the sale of the property and substantiated
the basis for the relief he sought. The Appellant explained that after the Fi rst
Respondent departed from the property, t he Appellant requested her permission
in 2022 to let out the property to tenants to enable him to make the loan
payments. She declined his request. He has sought the First Respondent’s
permission to sell the property since 12 March 2023.

[7] According to the Appellant, the First Respondent presented the Appellant
with multiple reasons for refusing to sell the property, including her intention to
pursue alternative arrangements with the Second Respondent and consider other
options to prevent the sale of the property to provide a secure home for the
couple’s daughter. The First Respondent rented accommodation elsewhere but
returned to reside at the property in July 2024. Following her return, she did not
make any fina ncial contributions toward the loan or property expenses. The
Appellant also discontinued payments on the loan following the loss of his
employment.

[8] The Appellant provided details of the escalating debt on the loan
agreement to the Court a quo. The amount owing was R749 549.30, including
arrears of R301 686.79. The legal costs owing to the Second Respondent
amounted to R113 901.34. If the property had been sold for R500 000, the joint
estate would accordingly have faced a shortfall of R43 6 450.64, inclusive of
legal costs. The Appellant asserted that s uch a situation would have been
detrimental to both the joint estate and the interests of the couple.

[9] The First Respondent, in her answering papers, and seemingly oblivious
of her participation in the judgment obtained by the Second Respondent or its
implications, insisted that the property formed part of the joint estate, the
division of which would be a ddressed during the couple’s divorce proceedings.
She asserted that the property functioned as the primary residence for her and
her daughter. The termination of joint ownership of the property would
substantially affect their living arrangements, overall well-being, financial
stability, and income. As the sole and most affordable housing option available,
the property was essential to them. She did not have access to alternative
accommodation. She asserted that she would be able to pay the loan from 1
September 2024 onward , a commitment she communicated to the Second
Respondent and its legal representatives.

[10] She contended that the Appellant had wilfully denied her and her
daughter access to the home between 2021 and 2024. She was unable to pay for
legal a dvice as the Appellant had cancelled her legal policy. The Appellant
received rental income from the property but declined to share the income or
pay the loan. He had wilfully and negligently failed to honour his financial
obligations over their fifteen-year marriage.

[11] The First Respondent outlined the effects of losing the property on her as
well as her daughter. She sought to attribute the Appellant’s actions as acts of
economic and financial abuse under the Domestic Violence Act. She referred to
an arra ngement the Appellant had concluded with the Second Respondent in
July 2021 to continue paying the loan and to pay in excess to settle the arrears.
He did not do so, resulting in the loan falling further into arrears. The Appellant
owned two other properti es in the Northern Cape that could have been sold to
cover the outstanding arrears that had accumulated on the loan. There was, in
addition, movable property that could be sold to cover the shortfall. The First

Respondent alluded in her correspondence with the Appellant’s legal
representatives that she suffered declining hearing loss and other health
challenges and was unsure how much longer she would be able to continue
doing the work she did.

[12] In reply, the Appellant asserted that the factual allegations presented by
the First Respondent were either inaccurate or immaterial to the application.
The Appellant submitted supporting evidence and reaffirmed the occasions on
which he requested the First Respondent’s consent to terminate the joint
ownership of the property. The First Respondent's decision not to proceed with
a private sale of the property was vexatious and un reasonable, considering the
Rule 46A order. This position adversely affected both the joint estate and the
Appellant's associated interests. It was reasonably foreseeable that the property
could have been sold before the conclusion of the divorce proceedin gs.
Furthermore, the Second Respondent's proposed application to reduce the
reserve price for the property's sale was expected to result in the termination of
their co-ownership. Therefore, the pending divorce action d id not influence the
impending loss of the property.

[13] The Appellant contested the First Respondent’s claim that terminating
their joint ownership would jeopardise her financial stability and result in
substantial hardship for herself and their daughter. The First Respondent did not
submit an y evidence before the Court a quo to substantiate her assertions
regarding significant impacts on her income and livelihood, lack of access to
alternative office space, or the necessity of renting a workspace. The proceeds
of the private sale would settle the loan, allow for the rescission of the default
judgment, improve their credit record and permit the First Respondent to rent
property, which she had done without difficulty for three years between 2021
and 2024, without the disadvantage of a bad credit record. The Appellant argued

that the First Respondent had confused the criteria a Court must consider when
terminating joint ownership with those relevant to an eviction application.
Therefore, the impact of terminating joint ownership on their daughter w as not
pertinent to the present application. It was further submitted that an equal
division of proceeds from the private sale, after settling outstanding debts and
legal costs, would be both fair and equitable. The proceeds could be used for the
daughter’s maintenance needs.

[14] The Appellant stated that the First Respondent was unable to substantiate
her assertion that she had communicated with the Second Respondent or third
parties. Furthermore, she failed to provide evidence regarding her monthly
income, her capacity to service the loan instalments, or h er ability to remit his
proportional share of the property. He stated, with supporting evidence, that on
19 August 2024, the Second Respondent, through its attorney, communicated its
position that reinstatement of the loan agreement would only occur upon
settlement of the full arrears and legal costs.

[15] The Appellant denied having rented out the property to any one. Upon
obtaining financing from the Second Respondent, the couple entered into an
agreement stipulating joint liability for the repayment of in stalments. The First
Respondent discontinued payments in 2021 following the loss of his
employment. He further denied engaging in any acts of domestic violence
towards the First Respondent or perpetrating financial or economic abuse
against her. He refuted sole responsibility for the loan repayments. His other
properties have been listed for sale. The collective value of the movable assets
jointly owned would not suffice to cover the outstanding arrears. He further
disputed the relevance of the Domestic Vio lence Act and the Children’s Act to
the application.

[16] The Second Respondent’s position regarding the sale of the property
under the rule 46A order, as well as its position regarding the reinstatement of
the loan agreement upon payment of the arrears and t he legal costs, was
repeated in the confirmatory affidavit of the Appellant’s attorney, deposed to on
20 August 2024.

[17] The relief sought by the Appellant in the Court a quo was to terminate the
couple’s co -ownership of the property and to direct the First Respondent to
cooperate in facilitating its sale, transfer and registration into the name of the
prospective buyers by private sale against payment by them of R980 000. The
Appellant also sought that the net proceeds of the sale be divided equally
between him and the First Respondent after the debt on the property had been
settled.


THE COURT A QUO’S JUDGMENT

[18] The Court a quo framed the central issue to be whether the First
Respondent’s refusal to grant consent was unreasonable, or whether the
Appellant had established sufficient grounds to proceed without such consent.
The Court undertook a thorough examination of the First Respondent’s
arguments. The Court held that the First Respondent had presented substantive,
credible, and bona fide disputes of fact regarding the reasonableness of her
refusal to provide consent. Furthermore, it found that the First Respondent had
experienced economic and financial abuse perpetrated by the Appellant,
resulting in what was described as a ‘constructive loss of a home’ for both the
First Respondent and her daughter.

[19] As the Second Respondent had not participated in the proceedings, the
Court a quo held that it was unable to determine that the letter from its attorney,

relied upon by the Appellant , ha d excluded the First Respondent’s request to
establish a payment plan for settling arrears and legal costs. The Court a quo
expected the Second Respondent to submit an explanatory affidavit in support
of the Appellant’s application, confirming that the Fir st Respondent had sought
a payment arrangement pursuant to the National Credit Act. The Court a quo
was of the view that the attorney responsible for the letter did not demonstrate
an understanding or acceptance of the debt recovery principles outlined in the
Act. While the letter reflected the attorney’s perspective, the Court a quo did
not recognise it as representing the position of the Second Respondent. The
Court determined that the Second Respondent had failed to address the First
Respondent’s request for a payment plan. Consequently, it dismissed the
application.


THE APPEAL

[20] The Appellant challenged the entirety of the judgment and order issued
by the Court a quo. The Appellant contended that the Court a quo made errors
in three principal respects: firstly, by imposing an evidentiary burden on the
Appellant to provide proof regarding the Second Respondent’s stance on the
alleged rejection of the proposed payment p lan and the potential reinstatement
of the loan agreement ; secondly, by failing to acknowledge the potential
prejudice to the joint estate should the property be sold pursuant to the writ of
execution; and thirdly, by not accepting that the First Responden t was unable to
reinstate the loan agreement without the Appellant’s consent. The Appellant
argued that the Court a quo gave greater weight to the unsupported assertions
made by the First Respondent concerning her request to the Second Respondent
for the d evelopment of a payment plan, instead of a ffording proper

consideration to the allegations presented in his affidavits, which were
corroborated by contemporaneous correspondence.

[21] The principal questions for determination in this appeal are whether the
Court a quo erred as the Appellant asserts, whether the First Respondent’s
refusal to consent to the sale of the property was unreasonable in the
circumstances, particularly given the sequence of events involving the
cancellation of the loan agreement, the granting of a Rule 46A order for the sale
and subsequent offers to purchase the property, and whether the Appellant had
sufficiently motivated his application to dispense with the First Respondent’s
consent.

[22] The Appellant applied to introduce suppl ementary evidence on appeal
and to amend the notice of appeal. The proposed additional evidence comprises
the founding affidavit in support of the Second Respondent’s application under
Rule 46A(9), two affidavits filed by the Appellant in opposition to the Rule
46A(9) application, as well as an affidavit from the new purchaser who
submitted an offer to acquire the property. The Appellant further applied to
amend the notice of appeal, requesting that the order sought exclude the Fourth
and Fifth Respondents and incorporate the price proposed by the new purchaser.

[23] Pursuant to section 19(b) of the Superior Courts Act 13 of 2013, the
appellate court possesses the discretion to admit new evidence. The affidavits
submitted by the Appellant were not accessible whe n his application was
considered by the Court a quo.1 The evidence is material and directly relevant to
the adjudication of the appeal, particularly as it pertains to the Second
Respondent’s application for the establishment of a new reserve price consistent
with the bid received by the Sheriff, as well as the specifics regarding the new

1 Prophet v National Director of Public Prosecutions [2006] ZACC 17; 2007 (6) SA 169 (CC), para 33,

Simpson v Selfmed Medical Scheme and Another [1994] ZASCA 191; [1995] 2 All SA 124 (A), paras 23-24

offer to purchase the property. The proposed amendment to the Appellant’s
notice of appeal also revised the relief sought to incorporate the new evidence.
Permitting both the introduction of this evidence and the amendment to the
notice of appeal would serve the interests of justice.

ASSESSMENT

THE APPLICABLE LAW

The Actio Communi Dividundo does not apply

[24] The Appellant misconstrued the legal basis upon which a spouse married
in community of property can alienate immovable property if the other spouse
does not provide consent. The Appellant argued that this appeal concerns the
interplay between the common la w as regards co -ownership, the Matrimonial
Property Act, the NCA and Rule 46A of the URC. The Appellant employed the
terms ‘co-ownership’ and ‘termination of co -ownership’ with limited
specificity, drawing upon the principles of actio communi dividundo and its
connection to the Matrimonial Property Act. He contended that it was necessary
to satisfy the requirements of the actio, thereby demonstrating that the First
Respondent is unreasonably withholding her consent. The authoritative case on
the termination of co -ownership, Municipal Employees’ Pension Fund and
Others v Chrisal Investments (Pty) Ltd and Others (‘MEPF’),2 dispels the
approach adopted by the Appellant. The Appellant correctly identified the type
of co -ownership of the property as that of bound co -ownership, and that is
where any reliance on the actio ends.


2 Municipal Employees' Pension Fund and Others v Chrisal Investments (Pty) Ltd and Others [2020]
ZASCA 116; [2020] 4 All SA 686 (SCA); 2022 (1) SA 137 (SCA). For the application of the principles in
MEFP see also: Kader v Modack and Another [2023] ZAWCHC 183, P.N v A.E [2024] ZAWCHC 266, K.A v
A.E and Another [2024] ZAWCHC 392.

[25] The basic principle underlying the termination of co -ownership was
enunciated as follows in Robson v Theron:3

‘No co-owner is normally obliged to remain a co-owner against his will.’

[26] In paragraphs 45, 46, and 51 of MEPF, Wallis JA conducted an extensive
overview of the distinction between free and bound co-ownership, explained the
difference between the two and their legal consequences, as follows:

‘…Bound co-ownership is precisely the case where a co-owner is obliged to remain such
against their will, unless and until the tie that creates the bound co -ownership has been
severed.’ 4
‘…In summary therefore, I conclude, in accordance with the authorities discussed above,
that the distinction between free and bound co -ownership i s that in the former the co -
ownership is the sole legal relationship between the co -owners, while in the latter there is
a separate and distinct legal relationship between them of which the co -ownership is but
one consequence. Co -ownership is not the prima ry or sole purpose of their relationship,
which is governed by rules imposed by law, including statute, or determined by the
parties themselves by way of binding agreements. The relationship is extrinsic to the co -
ownership, but is not required to be exceptional.’5
‘…The common law is that the actio is always available in the case of free co -ownership
and never available in bound co -ownership. In any particular case the question of the
proper characterisation of the co -ownership arises at the outset. Only once it has been
answered can one decide what the common law attributes of the co-ownership are.’6

[27] In paragraph 24 of the MEPF judgment, Wallis JA noted that a marriage
in community of property imposes co -ownership upon the parties to the
marriage:


3 Robson v Theron 1978 (1) SA 841 (A)
4 MEPF at para 45
5 Id para 46
6 Id para 51

‘…South Africa recognises various sources of extrinsic legal relationships giving rise to
bound co-ownership. It may arise as a matter of law from the fact that the parties have
entered into a particular relationship. An example of this is a ma rriage in community of
property, where the common law, as varied by the Matrimonial Property Act 88 of 1984 ,
imposes co-ownership upon the parties to the marriage.’7

[28] The Appellant and the First Respondent, who are married in community
of property, are joint , bound co-owners of the property, which remains
indivisible until the dissolution of the ir marriage by divorce or death. Where
parties are married in community of property, they do not hold property in co -
ownership in the ordinary , free, or unbound sense. Instead, they share a joint
estate, which is a legal universitas managed jointly (or by one spouse with
consent). Division of the joint estate is governed by the divorce process und er
the Divorce Act 70 of 1979, not common -law remedies. The married couple are
allowed to alienate their belongings jointly, by agreement, and to seek the
Court’s assistance in securing a disposal of communal assets if one party refuses
to consent. That sh ould not be confused with a right to terminate co -ownership
of unbound property upon divorce or death . The remedy provided by the actio
communi dividundo was accordingly not available to the Appellant, and its
invocation in the application and this appeal as a prerequisite to applying the
provisions of the Matrimonial Property Act, and references to the termination of
co-ownership of the property and termination thereof, on this basis, are bad in
law.

Section 16(1) of the Matrimonial Property Act

[29] Under section 15(2)(a) of the Matrimonial Property Act, a spouse
married in community of property is not permitted to alienate or mortgage any
immovable property forming part of the joint estate without the written consent

7 Id para 24

of the other spouse. Section 16( 1) of the Matrimonial Property Act states that
when a spouse withholds the required consent under section 15(2), a court may,
on the application of the other spouse, grant permission for the spouse to enter
into the transaction without the consent if it is satisfied that, in cases where
consent is withheld, such withholding is unreasonable or, in other
circumstances, that there is good reason to dispense with the consent. The Court
a quo was correct in law when it confined its findings to section 16(1) of t he
Matrimonial Property Act. All that the Appellant needed to show was that the
First Respondent’s withholding of consent was unreasonable and that there was
good reason to dispense with it.

[30] Section 15(2)(f) of the Matrimonial Property Act states that a spouse in a
marriage in community of property is not permitted to enter into a credit
agreement which is governed by the provisions of the National Credit Act
without the written consent of the other spouse. Reinstating the loan agreement,
which will bind the joint estate anew, thus requires the consent of both spouses.



The National Credit Act

[31] The loan and mortgage agreements entered into by the couple with the
Second Respondent, which registered the mortgage bond over the property as
security, constituted a credit agreement in terms of the NCA. 8 Under section
129(3) of the National Credit Act, the Appellant and the First Respondent could,
at any time before the Second Respondent cancel led the loan agreement,
reinstated it by paying the Second Respondent all overdue amounts along with
the permitted default charges and reasonable costs of enforcing the agreement

8 Nkata v Firstrand Bank Limited and Others [2016] ZACC 12; 2016 (4) SA 257 (CC) para 3,

up to the time of its reinstatement. The loan agreement w as not reinstated by
this means, nor was it even cancelled.

[32] Pursuant to section 129(4)(b), neither the First Respondent nor the
Appellant was entitled to reinstate the credit agreement with the Second
Respondent following the Court order enforcing it. The Court order dated 19
July 2023 mandated payment of the debt und er the loan agreement and
explicitly identified the property as subject to execution. The Registrar was duly
authorised to attach and facilitate the sale of the property in satisfaction of the
judgment, leading to its auction by the Sheriff. As the property remained
unsold, section 129(4)(a) was not applicable . The record does not indicate that
the Second Respondent terminated the credit agreement under section 129(4)(c).
However, the available evidence demonstrates that the credit agreement was not
eligible for reinstatement, as the requirements of section 129(4)(b) had been
met.9



ERRORS AND MISDIRECTIONS

Bona Fide defence

[33] The Court a quo had to determine the Appellant’s application within the
context of the 19 July 2023 order and its consequ ences. This Court understands
from the wording of the order that the First Respondent was represented when it
was granted, and it was obtained with her consent , i.e., by agreement between
the parties. She was thereafter barred by section 129(4)(b) from reinstating the
credit agreement with the Second Respondent. Much of her answering affidavit

9 Id para 131. The circumstances in this matter are distinguishable as the Appellant in Nkata had
reinstated the credit agreement.

and her argument before this Court concerned her attempts to reinstate the loan
agreement, recount the relati onship between the Appellant and herself that led
to their default in making payments since 2021, and her efforts to preserve the
property for her daughter. In pursuit of the aforegoing, she did not provide an
answer to the key allegations made by the Appe llant in his founding affidavit.
These included the correspondence between the Appellant’s legal
representatives and the First Respondent seeking her consent to sell the property
privately, and the benefit that would accrue to the joint estate from a private
sale.

[34] The Court a quo’s finding that the First Respondent had raised genuine
and bona fide disputes of fact regarding the reasonableness of her refusal to
consent to the sale of the property is not supported by the content of the First
Respondent’s answering affidavit. The First Respondent did not address the
Appellant’s allegations point by po int, preferring to give her view of the matter
without referencing the founding affidavit. She denied that the Appellant had
sought or obtained her consent for the proposed private sale of the property.
However, the correspondence attached to the founding affidavit and her
response show that her denial was incorrect. She also failed to address the
significant benefit that would arise for the joint estate from a private sale.
Although it was irrelevant once the order of 19 July 2023 was granted, the First
Respondent’s alleged attempts to reinstate the loan agreement were
unsubstantiated by any evidence. Furthermore, the First Respondent did not
challenge any of the contemporaneous documentary evidence regarding the
Appellant’s efforts to obtain her consent fo r a private sale, nor the position of
the Second Respondent as communicated by its attorney to the Appellant.

[35] A genuine and bona fide dispute of fact exists when the Court is satisfied

[35] A genuine and bona fide dispute of fact exists when the Court is satisfied
that the party claiming to raise the dispute has, in her answering affidavit,

seriously and unambiguously addressed the fact said to be disputed. The Court a
quo did not specify the disputes of fact apart from commenting on the four
forms of abuse allegedly suffered by the First Respondent. The Appellant had
not anticipated any disputes of fact, considering that the application arose from
the need to protect the interests of the joint estate and to prevent it from being
saddled with a financial burden where that could be avoided. The First
Respondent had not disputed any of the material allegations in the Appellant’s
founding affidavit. Consequently, the Court a quo was constrained to accept the
allegations in the founding affidavit as proved. The Court a quo erred in finding
that the First Respondent had raised real, genuine, and bona fide disputes of fact
regarding the reasonableness of her refusal to give consent to the sale of th e
property.

Evidentiary burden

[36] The Court a quo found that there was sworn evidence indicating that a
payment plan under the relevant legislation (the NCA) had been requested.
However, t he First Respondent made unsubstantiated allegations without
documentary proof that she had pursued the Second Respondent to develop a
plan to bring the payments under the loan agreement up to date. Regarding the
First Respondent’s evidence, the Court a quo considered that a ‘simple’ letter
addressing this matter in cor respondence between unrelated parties was
insufficient to constitute proof. The Court a quo was likely referring to the
email exchanged between the attorneys of the Second Respondent and the
Appellant, in which the Second Respondent’s attorney reiterated t heir client’s
position concerning the reinstatement of the loan agreement.

[37] The Court a quo expected an affidavit from the Second Respondent
confirming its position regarding any payment plan proposed by the First

Respondent. In motion proceedings, the party alleging a fact, in this case the
First Respondent, bears the evidentiary burden to prod uce sufficient supporting
evidence. The mere allegation by the First Respondent that a payment plan was
requested under section 129(3) of the NCA without any substantiating
documentary proof thereof, did not impose a duty on the applicant, the
Appellant, to obtain an affidavit from a third party, the Second Respondent, to
refute it. When a party such as the Appellant in this case presents credible
documentary rebuttal, such as correspondence from the bank’s attorney, the
evidentiary burden is considered dis charged. In the circumstances, t he Court a
quo’s finding that the Appellant bore the onus of proving the bank’s refusal was
procedurally flawed and inconsistent with the principles established in Plascon-
Evans.10

[38] Where a respondent is cited but not implic ated in the relief sought, and
does not participate in the proceedings, there is no procedural obligation on that
respondent to answer allegations that are bald, speculative, or irrelevant to the
core dispute. In this case, the Second Respondent was not th e subject of the
relief sought and did not take part in the application. The First Respondent’s
unsubstantiated allegation concerning a proposed payment plan therefore did
not impose any evidentiary or procedural obligation on the Second Respondent
to respond. The evidentiary burden remained with the First Respondent, and her
failure to meet it rendered the allegation insufficient to shift the burden of
rebuttal to the Appellant or the Second Respondent. The Appellant correctly
submitted that the Second Respondent was already in possession of a judgment
authorising it to sell the property in execution. It had no interest in the outcome
of th e application, nor would it have unnecessarily expended resources under

10 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. [1984] ZASCA 51; [1984] 2 All SA

366 (A); 1984 (3) SA 620 (A)

the circumstances. The Court a quo erred in shifting the evidentiary burden
from the First Respondent to the Appellant.

Prejudice to the joint estate

[39] The Appellant contended that the Court a quo failed to consider the
prejudice to the joint estate if the property was sold for less than R990 000,
particularly if it was sold for R500 000 to the highest bidder at the auction
convened by the Sheriff of the Court. The Second Respondent had applied to
the Court to review the minimum reserve price and set it at R500 000. The
Court adjuste d the minimum reserve price to R800 000 in December 2024.
There was no indication that this minimum price would be achieved in an
auction sale held by the Sheriff.

[40] On the date when the appeal was heard , we were informed b y the
Appellant’s Counsel that th e amount owing to the Second Respondent was
R811,091.01, including legal costs of R87,258.62. A private sale of the property
to the new purchaser would yield R990,000. A further amount of about R50,000
would need to be paid as commission to the estate agen t for the private sale,
leaving roughly R130,000 to be divided in the joint estate upon divorce.

[41] Extinguishing the debt and legal costs owed to the Second Respondent
and making a profit in these circumstances is clearly advantageous for the joint
estate, the parties' interest in the joint estate, and the best interests of their
daughter. The Court a quo acknowledged these arguments but erred in failing to
consider the prejudice to the joint estate if the property was sold at auction
rather than privately.

Reinstatement of the loan agreement requires the Appellant’s written consent.

[42] The Appellant als o contends that the Court a quo failed to consider that
reinstating the loan agreement securing the bond would activate the provisions
of sections 15(2)(a) and (f) of the Matrimonial Property Act. As a result, the
First Respondent could not reinstate the loan agreement without the Appellant’s
written consent. The First Respondent neither sought the Appellant’s written
consent nor applied to have his consent dispensed with under section 16(1) of
the Matrimonial Property Act. The Appellant had already indicat ed that he
would not give his consent to reinstate the loan agreement. Without the
Appellant’s consent, any effort by the First Respondent to reinstate the loan
agreement would be futile. The Court a quo erred in this regard as well.

The First Respondent’s submissions

[43] The First Respondent was unable to secure legal representation despite
this Court providing her with leads she could pursue and urging her to do so
when the hearing of this appeal had to be postponed on 25 April, and 30 May
2025. She argued the appeal without legal assistance. The Court recognises the
detailed submissions made by the Fi rst Respondent in her argument and her
determination to retain the property, even though the private sale offered an
outcome advantageous to her and her daughter. She mentioned, among other
things, her salary of R29 000 per month, her intention to obtain a R250 000 loan
from an unnamed source to help her reduce the loan arrears, her offer to pay out
the Appellant his share of the amount that would be realised in a private sale,
the Second Respondent's reluctance to negotiate with her, unclear messages
regarding a payment plan communicated by bank staff, her attempt to verify if
the loan agreement had been cancelled, and who was responsible for opposing
the application for default judgment.

[44] The First Respondent asked this Court to order the Second Responden t to
accept her proposal for a payment plan and to reinstate the loan agreement. The
First Respondent was advised that this is not the kind of order this Court can
grant. She was further informed that the purpose of an appeal is to determine
whether the Co urt a quo erred or misdirected itself on issues identified by the
Appellant, and that it was not permitted to go beyond the record of proceedings
in the Court a quo (except for new evidence properly presented to this Court).
None of the issues raised by th e First Respondent in argument were part of the
record. The Court was unable to consider these issues or the documents the First
Respondent sought to submit.

[45] In the final analysis, the Court remains convinced that the First
Respondent, the joint estate, and the couple’s daughter will be better off if the
property is sold through private treaty. The First Respondent could request to
have any blacklisting lifted and to start anew, securing a home for herself and
her daughter without the burden of debt tight ening around her. She did not
present any significant submissions in the Court a quo or in this Court to justify
her withholding of consent. On the contrary, the case presented by the Appellant
was overwhelmingly persuasive, leading th e Court to conclude that an order
should be made dispensing with the First Respondent’s consent for the private
sale of the property. The appeal must therefore be upheld.

THE RELIEF SOUGHT BY THE APPELLANT

[46] The Appellant provided a draft order which specified the relief he
requested, and should be granted on appeal. In the first place, t he Appellant
requested an order terminating the co-ownership of the property. For the reasons
set out in this judgment, granting such an order would be inappropriate as the
couple’s marriage has not yet been dissolved. The correct order to make would

be to grant the Appellant leave to proceed with the transaction to alienate the
property in accordance with standard conveyancing and Deeds Office
procedures and dispensing with the Firs t Respondent’s consent for such
alienation. The First Respondent will be ordered to sign the necessary
documentation to facilitate the private sale of the property; failing that, the task
will fall to the Sheriff of the Court. The order will also recognise, as the
Appellant requested, the reserve price set by the Court in December 2024 and
the purchase price offered by the new buyer.

[47] The Appellant requested that, once the sale proceeds are used to settle the
debt owing on the loan agreement and related costs , including the Second
Respondent’s legal costs, transfer costs, and municipal arrears , they be divided
equally between the Appellant and the First Respondent. Such an order is also
inappropriate before the termination of the joint estate by divorce. The order
should include a provision that if any proceeds remain after the private sale of
the property, and the Appellant’s costs of the application and this appeal are
paid, the remaining funds, if any, should be held in the trust account of the
Appellant’s attorney pending the couple’s divorce.

COSTS

[48] The Appellant requested an adverse cost order against the First
Respondent. A costs order between spouses married in community of property
is not enforceable in the usual way, as it would mean one half of the estate
paying the other half. The Court retains the discretion to award costs against a
spouse who conducts litigation unreasonably. The Appellant’s legal costs in the
application and this appeal will be paid from the proceeds of the private sale of
the property once all other expenses related to the sale are settled. If the

couple’s marriage ends (e.g., divorce), the Appellant may enforce the costs
order against the First Respondent’s share of the estate during division.

CONCLUSION

[49] The Appellant unsuccessfully applied in the Court a quo to enter into a
private transaction to alienate the property jointly owned by the couple under
their marital regime. He has succeeded on appeal. The Court a quo erred in
accepting that the First Respondent’s withholding of consent for the private sale
of the property was reasonable and that the Appellant did not provide good
reason to dispense with her consent. In the premises, I propose the following
order.


ORDER


1. The Appellant’s application to adduce further evidence on appeal is granted.
2. The appeal is upheld, and the order of the Court a quo is set aside and replaced
with the following order:
2.1 The Applicant is granted leave under section 16(1) of the Matrimonial
Property Act, 88 of 1984, to enter into a transaction to alienate, i.e., to sell
the property described as erf 1[…] (held under deed of title T[…]), Strand,
also known as 3[…] R[...] Street, Rusthof, Strand (‘the property’).
2.2 The First Respondent is directed to take all such steps and sign all such
documentation (including but not limited to the deed of sale) as may be
required, i n law, to ensure that the property is sold, transferred to and
registered in the name of any bona fide purchaser who offers to purchase it
at a price exceeding the reserve price of R800 000 as set by the Western
Cape High Court on 13 December 2024), curre ntly being Paxar Trading
(Pty) Ltd which has offered to purchase the property for R990 000 (nine
hundred and ninety thousand rand).
2.3 If the First Respondent should fail, neglect, or refuse to comply with
paragraph 2.2 above within five (5) business days of being requested to do

so in writing (and such failure, neglect, and/or refusal is confirmed on oath
by the conveyancer), the Sheriff of the High Court, Strand (i.e., the Third
Respondent) is hereby authorised and directed to do such things and sign
such documentation as may be necessary to give effect to the order in terms
of paragraph 2.2 above.
2.4 The costs of the application (including the costs of Counsel on Scale A)
shall be paid on a party and party basis from the net proceeds of the sale
after the bala nce outstanding on the bond registered over the property, the
bond cancellation costs, the Second Respondent’s legal fees, the costs
incurred to obtain the necessary certificates of compliance to pass transfer,
municipal rates, taxes, and/or service charg es, the estate agent’s
commission, and any other expenses as may be necessary to be incurred to
secure the transfer of the property as provided for in paragraph 2.2 above
are paid.
2.5 Should there be any remaining funds, they are to be transferred to and held
in the trust account of the Appellant’s attorney pending the division, if any,
of the joint estate. To the extent that the net proceeds of the sale are
insufficient to pay the costs of the application, they shall be paid from the
First Respondent’s equitable share of the joint estate upon division.
3. First Respondent shall be liable for the costs of the appeal including the costs of
Counsel on Scale A, and shall be recovered in whole or in part, as the case may
be, from the First Respondent’s equitable share of the joint estate upon division.



_____________________________
A BHOOPCHAND
Acting Judge of the High Court

I agree, and it is so ordered.

______________________
M SHER
Judge of the High Court
I agree,

______________________
N MANGCU-LOCKWOOD
Judge of the High Court

Appearances:

Appellant’s Counsel: H Beviss-Challinor
Appellant’s attorneys: Beviss-Challinor Attorneys
First Respondent: In person