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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No: 50/2024
In the matter between:
B[...] P[...] M[...] APPLICANT
and
J[...] K[...] RESPONDENT
Coram: Khoza AJ
Heard on: 14 July 2025
Delivered on: 25 February 2026
Summary: Marriage in community of property – immovable property forming part of
joint estate – alleged agreement for acquisition of former spouse’s undivided half -
share – non-compliance with section 2(1) of the Alienation of Land Act 68 of 1981 –
alleged agreement void – parties remain co-owners – termination of co-ownership –
sale of property ordered – equitable allocation of municipal liabilities between the
parties.
ORDER
1. It is declared that the respondent did not lawfully acquire the applicant’s
undivided half -share in the immovable property situated at Erf 4 […],
Eersterivier, and that the parties remain co -owners thereof in equal undivided
shares.
2. The parties’ co-ownership of the property is terminated.
3. The property shall be sold on the open market at a market -related price by an
estate agent to be agreed upon between the parties within 15 (fifteen) days of
this order, failing which the estate agent shall be appointed by the
Chairperson for the time of the Cape Town Attorneys’ Association on written
request by either party.
4. The estate agent is authorised to market and sell the property at the best
obtainable price, subject to confirmation by both parties, which confirmat ion
shall not be unreasonably withheld.
5. In the event of a dispute regarding the acceptance of an offer, either party
may approach this Court on the same papers, duly supplemented, for
appropriate relief.
6. The respondent shall grant the estate agent reason able access to the
property for purposes of valuation, marketing, and effecting a sale.
7. Pending transfer of the property,
a. The respondent, as the party in sole occupation since the divorce, shall
be solely liable (as between the parties) for all municipal rates, taxes,
service charges and utilities accruing from the date of the divorce to
date of transfer;
b. The respondent shall indemnify the applicant against any claim by the
relevant municipality arising from such charges;
c. The respondent shall, within 30 (thirty) days of this order, take all
reasonable steps to engage the municipality with a view to determining
the full extent of the outstanding municipal indebtedness and to prevent
further escalation thereof , including the conclusion of any reasonable
payment arrangement pending transfer.
8. From the proceeds of the sale:
a. The reasonable costs of the sale, including estate agent’s commission
and conveyancing fees, shall be paid;
b. Any outstanding municipal charges and amounts required to procure a
rates clearance certificate shall be paid; and
c. To the extent that any portion of the municipal debt relates to the
period of the respondent’s sole occupation after divorce, such portion
shall be debited solely against the respondent’s share of the net
proceeds.
9. In the event that the net proceeds are insufficient to discharge the outstanding
municipal indebtedness, the respondent shall be liable for any shortfall
attributable to the period of his sole occupation after divorce and shall
indemnify the applicant in respect thereof.
10. Paragraphs 7 to 9 of this order regulate the rights and obligations of the
parties as between themselves and do not affect the rights of the relevant
municipality arising from any judgment obtained against both parties.
11. Each party shall sign all documents and do all things necessary to give effect
to this order. Failing compliance within 7 (seven) days of written demand, the
Sheriff of this Court is authorised to sign such documents on behalf of the
defaulting party.
12. The respondent shall pay the costs of this application , including counsel’s
fees on Scale B.
JUDGMENT
Khoza AJ
Introduction
[1] This application concerns the status of immovable property forming part of the
parties’ former joint estate, the alleged acquisition of one party’s undivided share
following divorce, and the consequences that flow therefrom.
[2] The applicant seeks an order directing that the immovable property situated at
Erf 4 […], Eersterivier, more fully described as […] O[…] Road, Stratford Green,
Eersterivier (“the property”), be sold on the open market and that the net proceeds
be divided equally between the parties. The relief is framed as one giving effect to
the decree of divorce granted on 13 January 2010, in terms of which the parties’
marriage in community of property was dissolved and the joint estate, which included
the immovable property, was to be divided equally.
[3] The respondent opposes the application on the basis that he has already
lawfully acquired the applicant’s undivided half share in the property and that the
parties’ co-ownership has accordingly terminated.
Factual background
[4] It is common cause that the parties were married to one another in community
of property. On 13 Jan uary 2010, a decree of divorce was granted , dissolving the
marriage. The property formed part of the joint estate. The divorce order
contemplated that the joint estate be divided and that the immovable property be
sold, with the proceeds to be divided equally between the parties. Notwithstanding
the divorce order, the property was never sold on the open market. The title deed
remains registered in the names of both parties.
[5] During the period between 2015 and 2016, correspondence was exchanged
between the parties’ respective erstwhile attorneys concerning a possible settlement
of the division of the property. The respondent contends that an agreement was
reached in terms of which he would acquire the applicant’s undivided half-share for a
sum initially proposed at R30 000.00 and later agreed at approximately R33 229.00.
[6] The respondent avers that he paid the agreed amount by instalments and that
the full amount was paid by 2016. The applicant disputes that any valid sale of her
half-share was concluded and denies that the respondent lawfully acquired her
interest in the property.
[7] It is common cause that no transfer of the applicant’s share was registered
and that no en dorsement of the title deed took place. The property remains jointly
registered.
[8] The property has been occupied by the respondent since the parties’
separation. Municipal charges and rates have accumulated over time, and both
parties are reflected as liable for such charges by virtue of their continued joint
ownership and registration. The applicant contends that the failure to effect a lawful
division of the property had resulted in ongoing prejudice to her, including exposure
to escalating municipal debt.
The parties’ submissions
The applicant’s case
[9] The applicant contends that she remains a co -owner of the property and that
the respondent had not valid ly acquired her undivided half share. She submits that
the divorce decree required the sale of the property and division of the proceeds
equally between the parties , and that the respondent has taken no steps to rescind
or vary that order. Although the respondent initially disputed that he had been served
with the divorce order, that contention was abandoned at the hearing of this
application.
[10] Contrary to the res pondent’s allegation, th e applicant disputes that any
binding agreement of sale was concluded. She relies on the absence of a written
deed of alienation in compliance with section 2(1) of the Alienation of Land Act 68 of
1981 (“the Alienation of Land Act”) . She submits that any alleged “buy -out” of her
share by the respondent is legally invalid.
[11] The applicant also submits that the correspondence exchange d between
attorneys did not constitute a binding contract of sale and, in any event, the
measures proposed in that correspondence were not complied with in the manner
contemplated by the aforesaid statutory provision. She contends that the respondent
produced no proof of payment in accordance with the alleged terms of the
agreement of sale.
[12] Further, the applicant emphasises that she continues to suffer prejudice
because of the property remaining jointly registered, including exposure to
substantial municipal charges. She sub mits that the only practical means of giving
effect to the divorce order and terminating the ongoing prejudice is for the property to
be sold on the open market and the proceeds divided equally between the parties.
[13] On costs, the applicant contends that the respondent’s opposition has been
unreasonable and that a punitive costs order is warranted.
The respondent’s case
[14] At the hearing, the respondent abandoned reliance on two defences initially
raised in the ans wering affidavit , namely that he had no t been served with the
divorce summons or decree, and that the applicant did not contribute to the upkeep
of the property.
[15] The respondent submits that the matter turns on a single issue: whether he
lawfully acquired the applicant’s half share in the property pursuant to an agreement
reached between the parties. He contends that settlement negotiations culminated in
an agreement that he would acq uire the applicant’s share for R33 229.00, which
amount he had paid in full by 2016. He argues that the applicant did not squarely
deny receipt of the monies and that her challenge is confined to the alleged absence
of proof of payment.
[16] The respondent further submits that the Alienation of Land Act does not apply
in the present circumstances. He argues that the division of the parties’ proprietary
relationship is governed by the divorce order and that it was unnecessary to
conclude a separate deed of alienation in order to give effect to that order.
[17] In this respect, the respondent relies on section 45 of the Deeds Registries
Act and contends that en dorsement in terms of that provision is the appropriate
mechanism to reflect the acquisition of a former spouse’s share following divorce. He
submits that section 45, read with section 16 of that Act, obviates the need for a
conventional deed of sale between the parties.
[18] In the alternative, should the Court grant an order directing the sale of the
property, the respondent submits that there is no basis to direct that he bears all
transfer-related costs , and that such costs should be borne jointly or from the
proceeds of the sale. The respondent opposes a punitive costs order.
The issue to be determined
[19] This case turns on a single issue: whether the respondent lawfully acquired
the applicant’s undivided half-share in the property following the divorce.
[20] If the respondent did lawfully acquire the applicant’s share, the parties’ co -
ownership has termina ted, and the applicant is not entitled to an order directing the
sale of the property. However, if the respondent did not lawfully acquire the
applicant’s share, the parties remain co -owners. In that event, the applicant is
entitled to seek termination of the co -ownership, including by way of an order
directing that the property be sold and the proceeds divided.
Legal principles
[21] It is trite that, upon a marriage in community of property, the spouses bec ome
co-owners in equal undivided shares of the assets forming part of the joint estate.
Upon divorce, the joint estate falls to be divided equally unless otherwise ordered.
[22] It is equally well-established that no co-owner may ordinarily be compelled t o
remain in co-ownership against his or her will. Where co-owners cannot agree on the
manner of division, the law recognises the actio communi divid undo, in terms of
which a co-owner may seek termination of co-ownership.
[23] The underlying rationale, as expressed in the matter of Robson v Theron
1978 (1) SA 841 (A) at 855A in that every co -owner of property may demand
partition of the property at any time. In determining the appropriate mode of division,
a court enjoys a wide equitable discretion, including the power to order that the
property be sold and the proceeds divided between the co -owners (Estate Rother v
Estate Sandig 1943 AD 47 at 53).
[24] Section 2(1) of the Alienation of Land Act provides:
“No alienation of land after the commencement of this section shall, subject to the
provisions of section 28, be of any force or effect unless it is contained in a deed of
alienation signed by the parties th ereto or by their agents acting on their written
authority”.
[25] Section 1 defines “alienate” in relation to land as:
“sell, exchange or donate, irrespective of whether such sale, exchange or donation is
subject to a suspensive or resol utive condition, and alienation has a corresponding
meaning.”
[26] The statutory scheme thus requires that an alienation of an undivided share in
immovable property be reduced to writing and signed as prescribed.
[27] Ownership in law is conveyed by registration in a deeds r egistry in terms of
section 16 of the Deeds Registries Act 47 of 1947 , save as otherwise provided in
that Act or in any other law. Section 45 bis of the Deeds Registries Act makes
provision for the endorsement of title deeds in certain circumstances following
divorce and division of the joint estate.
[28] It is against this legal framework that the respondent’s alleged acquisition of
the applicant’s undivided half-share in the property falls to be considered.
Preliminary points
[29] The respondent’s opposition to this application is founded on the content ion
that, following the divorce, the parties concluded an agreement in terms of which he
purchased the applicant’s undivided half -share for an agreed amount, which (he
avers) was paid in full by 2016. Before dealing with this legal issue, it is necessary to
address two preliminary points.
[30] It is common cause on the papers that an amount of R33 229.00 was paid to
the applicant. The applicant does not unequivocally deny receipt of that amount. Her
challenge in the affidavit s is directed primarily at the absence of proof of payment in
accordance with the alleged settlement terms and at the absence of a written
agreement.
[31] During the hearing, counsel for the applicant submitted from the bar that the
amount in question was paid in respect of arrear maintenance rather than as
consideration for the purchase of the applicant’s undivided half-share in the property.
This was, however, not pleaded in the affidavits. No evidence was produced to
support the existence of arrear maintenance or to establish that the amount was paid
in discharge of such an obligation.
[32] It is trite that a party must stand or fall by its papers. A factual dispute
advanced from the bar , which finds no support in the af fidavits, cannot create a
genuine dispute of fact. The submission that the amount related to ar rear
maintenance accordingly carries no evidential weight.
[33] The material placed before the Court reflects that negotiations took place
between the parties’ respective attorneys regarding the purported buy -out of the
applicant’s half-share and that specific amounts were proposed and discussed. The
amount of R33 229.00 corresponds with the figure reflected in th e correspondence
exchanged between the attorneys.
[34] However, i t is not necessary to determine the matter on th at factual basis.
Even if I were to accept, for purposes of this analysis, that the amount of R33 229.00
was paid pursuant to the alleged agreement for the sale of the applicant’s half -share,
the decisive question remains whether such arrangement constituted a valid
alienation of land as contemplated in section 2(1) of the Alienation of Land Act.
[35] The second issue relates to the contention by the respondent that the
applicant did not plead a specific section of the Alienation of Land Act with which the
alleged transaction failed to comply, and that this omission deprived the respondent
of the opportunity to answer.
[36] This submission cannot be sustained. The validity of a purported alienation of
land is governed by statute. The issue is one of law arising from the facts placed
before the Court. A party’s failure to refer to a specific statutory provision does not
preclude the Court from applying the correct legal principles.
[37] The respondent also relies on the definition of “contrac t” in the Alienation of
Land Act , which refers to a deed of alienation under which land is sold against
payment of an amount of money in more than two instalments over a period
exceeding one year. That definition relates specifically to instalment sale agreements
regulated by the Act.
[38] The formal requirement in section 2(1) of the Alienation of Land Act applies to
any alienation of land, irrespective of whether payment is made in instalments or in a
lump sum. The question whether the purchase price wa s payable over more than
one year is not determinative of the application of section 2(1). More particularly, the
question is whether the arrangement relied upon by the respondent constituted a
valid alienation of land in compliance with section 2(1).
Analysis of the decisive issue
[39] The starting point is the proper characterisation of the arrangement relied
upon by the respondent. On his own version, the parties agreed that he would
acquire the applicant’s undivided half -share in the immovable property in exchange
for payment of an agreed amount. In substance, this constitutes a sale of an
undivided share in land. An undivided share in land falls squarely within the definition
of land in section 1 of the Alienation of Land Act.
[40] Section 2(1) provides that no alienation of land shall be of any force or effect
unless it is contained in a deed of alienation signed by the parties thereto or by their
agents acting on their written authority. This requirement is peremptory.
[41] The consequence of non-compliance with section 2(1) is settled. An
agreement which does not comply with the prescribed formalities of that provision is
of no force or effect, it is void ab initio and cannot confer a right of action . This
position was authoritatively decided in Johnston v Leal 1980 (3) SA 927 (A) at 939A
and was subsequently confirmed by the SCA in Rockbreakers and Parts (Pty) Ltd v
Rolag Property Trading (Pty) Ltd 2010 (2) SA 400 (SCA) at para 6.
[42] In this case, the respondent does not rely on a deed of alienation signed by
the parties recording the alleged sale of the applicant’s undivided half -share. He
relies on correspondence exchanged between the parties’ respective attorneys,
including communication marked “without prejudice”, and references to proposed
settlement terms. No written agreement signed by or on behalf of the parties
embodying the material terms of a sale of the applicant’s half -share has been
produced.
[43] Even if I were to accept, for purposes of this analysis, that a consensus was
reached on the purchase price and that the amount was indeed paid pursuant
thereto, the statutory requirement remains that the alienation be contained in a deed
thereto, the statutory requirement remains that the alienation be contained in a deed
of alienation signed as prescribed in section 2(1) of the Alienation of Land Act. In the
absence of such compliance, the alleged agreement cannot have legal force.
[44] It follows that the respondent’s reliance on section 45 bis of the Deeds
Registries Act does not avail him. That provision regulates the endorsement of title
deeds in circumstances where one spouse has lawfully acquired the share of the
other following divorce and division of the joint estate. It provides a procedural
mechanism to record an acquisition in the deeds registry. It does not dispense with,
nor override, the statutory requirements governing the validity of an alienation of
land.
[45] Section 45bis of the Deeds Registries Act presupposes that one spouse has
lawfully acquired the share of the other. In the absence of a valid deed of alienation
complying with section 2(1) of the Alienation of Land Act , there is no lawful
acquisition capable of endorsement. It follows that the respondent did not acquire the
applicant’s undivided half -share in the property , and he cannot do so simply by
endorsement of the title deed under the Deed Registries Act.
[46] Accordingly, the parties remain co -owners of the pr operty in equal undivided
shares. The applicant is entitled to seek termination of the co -ownership and
implementation of the division of the joint estate as contemplated in the divorce
order.
Further relief sought by the applicant
[47] I now deal with two further aspects of the relief sought. The first is an order
that the property be placed on the open market at a price as close as possible to
R900 000.00, being the market value as at November 2023, in terms of the valuation
report placed before me. That valuation is now more than 2 (two) years old. In the
circumstance where property values are subject to fluctuation and where a
considerable period has lapsed since then, it would not be appropriate to fix a
judicially prescribed sale price based on outdated information. It is preferable that the
property be sold at a market-related price determined at the time of sale.
[48] The second relief concerns the applicant’s requests for a punitive costs order
against the respondent . Such order s are reserved for exceptional circumstances,
including instances of mala fides, dishonesty, vexatious conduct or abuse of
process. While the respondent’s defence has not succeeded, I am not persuaded
that his conduct meets the high threshold required for a punitive costs order. The
dispute turned largely on legal interpretation. In the circumstances, an order for costs
on the ordinary party and party scale is appropriate.
Order
[49] In light of the above findings, the following order is made.
1. It is declared that the respondent did not lawfully acquire the applicant’s
undivided half -share in the immovable propert y situated at Erf 4 […],
Eersterivier, and that the parties remain co -owners thereof in equal undivided
shares.
2. The parties’ co-ownership of the property is terminated.
3. The property shall be sold on the open market at a market -related price by an
estate agent to be agreed upon between the parties within 15 (fifteen) days of
this order, failing which the estate agent shall be appointed by the
Chairperson for the time of the Cape Town Attorneys’ Association on written
request by either party.
4. The estate agent is authorised to market and sell the property at the best
obtainable price, subject to confirmation by both parties, which confirmation
shall not be unreasonably withheld.
5. In the event of a dispute regarding the acceptance of an offer, either party
may approach this Court on the same papers, duly supplemented, for
appropriate relief.
6. The respondent shall grant the estate agent reasonable a ccess to the
property for purposes of valuation, marketing and effecting a sale.
7. Pending transfer of the property,
a. The respondent, as the party in sole occupation since the divorce, shall
be solely liable (as between the parties) for all municipal rates, taxes,
be solely liable (as between the parties) for all municipal rates, taxes,
service charges and utilities accruing from the date of the divorce to the
date of transfer;
b. The respondent s hall indemnify the applicant against any claim by the
relevant municipality arising from such charges;
c. The respondent shall, within 30 (thirty) days of this order, take all
reasonable steps to engage the municipality with a view to determining
the full extent of the outstanding municipal indebtedness and to prevent
further escalation thereof , including the conclusion of any reasonable
payment arrangement pending transfer.
8. From the proceeds of the sale:
a. The reasonable costs of the sale, including estate a gent’s commission
and conveyancing fees, shall be paid;
b. Any outstanding municipal charges and amounts required to procure a
rates clearance certificate shall be paid; and
c. To the extent that any portion of the municipal debt relates to the
period of the respondent’s sole occupation after divorce, such portion
shall be debited solely against the respondent’s share of the net
proceeds.
9. In the event that the net proceeds are insufficient to discharge the outstanding
municipal indebtedness, the respondent sh all be l iable for any shortfall
attributable to the period of his sole occupation after divorce and shall
indemnify the applicant in respect thereof.
10. Paragraphs 7 to 9 of this order regulate the rights and obligations of the
parties as between themselves and do not affect the rights of the relevant
municipality arising from any judgment obtained against both parties.
11. Each party shall sign all documents and do all things necessary to give effect
to this order. Failing compliance within 7 (seven) days of wr itten demand, the
Sheriff of this Court is authorised to sign such documents on behalf of the
defaulting party.
12. The respondent shall pay the costs of this application , including counsel’s
fees on Scale B.
___________
GSS KHOZA
ACTING JUDGE OF THE HIGH COURT
Appearances
Counsel for the applicant: Adv E R Mentoor II
Instructed by: Borchards Attorneys Incorporated
Counsel for the respondent: Adv L Matiso
Instructed by: Gqada Nyongo Attorneys Incorporated