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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-157715
In the matter between:
T[… ] M[…] N[…] Applicant
And
Y[…] N[…]
Respondent
________________________________________________________________
JUDGMENT
Vosloo De Witt AJ:
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVIEWED: YES/NO
06 March 2026
DATE SIGNATURE
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Order
[1] In this matter I make the following order:
1. The Applicant and the First Respondent’s joint ownership in the
immovable property situated at Unit [ …] , The J […] , 1 […] J[…] Avenue,
M[…] E[…] , Johannesburg ("the Immovable Property") be terminated in
the
following manner:
1.1 That the Applicant and the Respondent shall, within 5 (five) days of
this order, each appoint a reputable estate agent operating within the
area of the Immovable Property in order that they may each obtain a
valuation of the Immovable Property;
1.2 That the Applicant and the Respondent shall accept the average of
the two valuations obtained by each of them from the aforesaid estate
agents as the reasonable market value of the Immovable Property;
1.3 That the Immovable Property shall be offered for sale on the
open market within 1 (one) month of the date of this order, at the
above
determined reasonable market value and that the Applicant and the
Respondent shall be both entitled to market the Immovable Property;
1.4 In the event that the Immovable Property is not sold within 4 (four)
months of the date of this order at a price higher than or equal to the
reasonable market value referred to above, that the Immovable
Property is sold by public auction to the highest bidder;
1.5 That the Respondent be ordered to co- operate with the sale of the
Immovable Property in terms of this order, including, but not limited to,
providing access to the Immovable Property at all reasonable times to
estate agents and prospective purchasers for viewing purposes;
1.6 the Applicant and the Respondent shall sign all such documents and
take all steps as required in order to conclude the sale agreement
and to effect transfer of each of their undivided shares of the
Immovable Property into the purchaser's name. In the event that
either of the parties fail to sign such documents on request, the Sheriff
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of the High Court in whose jurisdictional area the Immovable Property
is situated shall be entitled to sign such documents or take such steps
on such party's behalf;
1.7 Applicant and the Respondent shall each be entitled to payment of
the net proceeds from the sale of the Immovable Property in equal
shares upon the registration of transfer into the name of the purchaser
and that a receiver or a liquidator is appointed to monitor the
distribution of the proceeds of the sale in terms of any order made,
should this be required by the above Honourable Court.
1.8 That the net proceeds shall be the selling price of the
Immovable
Property, less the total of the following expenses incurred,
namely:
1.8.1. the commission due to the estate agent who was the effective
cause of the sale, alternatively, should the property be sold on public
auction, the auction fees payable in terms of the sale;
1.8.2. the costs of obtaining any compliance certificates in terms of the
Immovable Property, including any electrical and/or gas compliance
certificates;
1.8.3. the costs of obtaining a rates clearance certificate;
1.8.4. any other costs (of whatsoever nature) necessary or required to
in order to successfully conclude the sale of the Immovable Property.
1.9. The Applicant may appoint the conveyancer in order successfully
to conclude the sale of the Immovable Property; and
1.10. The Respondent shall pay the costs of this application on the
party and party scale B, which costs can be deducted from any sum to
be paid to the Respondent from the proceeds of the sale of the
Immovable Property.
[2] The reasons for the order follow below.
Introduction
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[3] This is an opposed application in terms of which the Applicant seeks an
order under the actio communi dividundo.
[4] The applicant and the respondent were previously married and were
divorced on the 2nd of March 2022 in the Gauteng Division, Pretoria High
Court.
[5] From the marriage there are two minor children born currently aged 6
years and 11 months.
[6] The parties entered into a written agreement of settlement, which
agreement was made an order of court.
[7] In terms of the settlement agreement the Respondent and the minor
children, who were in her primary care, remained in occupation of the f
former matrimonial home; and
[8] The settlement agreement stated in clause 9.1 that the property was
bought as the parties primary residence and matrimonial home. It further
made provision in clause 9.5 that the Respondent would continue to reside
in the property and that the applicant would be responsible for the
payments towards the property "for as long as the plaintiff and the minor
children reside in the immovable property and such payments are made as
part of the defendant's maintenance obligations to the plaintiff and the
minor children".
[9] The present application arises from a variation of the primary care
arrangements, in terms of which the minor children were placed in the
primary care of the Applicant during 2025.
[10] The Applicants and Respondents representatives filed heads of argument
which were quite helpful to the court.
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[11] Argument advanced by Ms Bezuidenhout for the Applicant were that the
parties were free co-owners of the property. It was further argued that the
circumstances under which the Respondent remained in the
abovementioned property have changed since the minor children were
placed in his primary care in 2025, when a variation to the settlement
agreement was ordered, and there for the change in the primary residence
is not an interim status.
[12] The Applicant made several attempts to negotiate termination of the
ownership of the property in question while the Respondent vacillates
between agreement and disagreement. This is evident from various
correspondences, the latest being an email dated 18 February 2026
wherein the Respondent states “I have some viewings this evening with
potential buyers after work for them.”
[13] The Applicant states that no "locked-in" co- ownership has been created
under the settlement agreement and consequently he seeks an order
terminating the joint-ownership.
[14] The Respondents rely on a pactum de non dividundo.
[15] Mr van der Merwe for the Respondent stated that there is a difference
between bound or free co-ownership and that the settlement agreement
reached between the parties created a bound co-ownership.
[16] Counsel for the Respondent argued that when the parties purchased the
property that it would become and remain the children's "habitual and
primary
residence for many years" and therefor that the parties agreed
that
their co-ownership could only
come to an end by mutual agreement and
after consulting the children
on such termination.
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[17] The respondents also referred to the settlement agreement and argued
that the property was purchased while the parties were married as a home
for the minor children and that the parties are in fact in a bound co-
ownership.
Analysis
[18] Considering the submissions by counsel for both parties. The undisputed
fact that is that the property was purchased as the matrimonial home,
nothing in the settlement agreement prevents the selling of the property or
specifically indicates an agreement to bound-co-ownership. The marriage
relationship between the parties (which was one out of community of
property with the accrual) came to an end on the 2
nd of March 2022 and
therefor the argument by the Respondent that the parties are bound co-
owners of the property stand to be rejected by the court.
[19] The minor children no longer reside in the property as the settlement
agreement upon which the Respondent relies has been varied by the court
and the primary care and residence of the children have now been placed
with the Applicant.
[20] The settlement agreement specifically stated that the applicant would be
responsible for the payments towards the property "for as long as the
plaintiff and the minor children reside in the immovable property and such
payments are made as part of the defendant's maintenance obligations to
the plaintiff and the minor children". The minor children are now in his care.
[21] The actio communi dividundo is the common law remedy for
the termination of joint ownership in property. No co-owner is normally
obliged to remain a co-owner against his or her will. The action is available
for the division of joint property where co-owners cannot agree, and may
be brought by a co-owner irrespective whether co-owners possess the joint
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property jointly or any one is in possession. This Court has a wide
equitable discretion in making a division of joint property.
[22] The actio communi dividundo does not apply where bound co-ownership
exists.
[23] “Bound” co-ownership, by contrast, arises where the shared property is
tied to another underlying legal relationship, such as marriage in
community of property, a universal partnership or a contractual agreement
restricting division.
[24] The Respondent contends that such restriction exists in the present matter
in the form of a pactum de non dividundo contained in the settlement
agreement.
[25] For the pactum de non dividundo to be enforceable, the intention of the
parties to restrict the termination of co-ownership must be clear and
unequivocal.
[26] A pactum de non dividundo will not readily be inferred and must appear
either expressly or by the necessary implication from the agreement.
[27] The relationship between the parties came to an end when the divorce was
granted. The settlement agreement regulated the relationship between the
parties in so far as it related to the property in question. In PN v AE 2024
JDR 3989 (WCC) and Kader v Modack2023 JDR 4592 (WCC), the courts
emphasised that co-ownership between spouses or partners cannot
necessarily be unravelled independently of those relationships.
[28] I am not convinced by the Respondents argument that the settlement
agreement is “cast in stone” nor that bound co-ownership came into
existence as a result thereof.
[29] It is undisputed that the settlement agreement has been varied by the court
to place the children in the Applicants primary care.
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[30] The starting point must be the wording of the settlement agreement itself.
Upon plain reading of the settlement agreement I cannot find that the
parties intention was to create a bound co-ownership.
[31] In my view the agreement regulates occupation and maintenance not
ownership. It cannot be interpreted as creating a pactum de non
dividundo.
[32] Co-ownership is not a permanent state of affairs. The Supreme Court of
Appeal in Robson v Theron 1978 (1) SA 841 (A) affirmed the principle that
“no co-owner is normally obliged to remain such against his will.” This
foundational rule underpins the actio communi dividundo. It provides a co-
owner with a legal mechanism to compel division of the jointly owned
property when agreement cannot be reached.
[33] The continued joint ownership of the property has become a source of
ongoing conflict between the parties.
[34] It would be inequitable to compel the applicant to remain indefinitely bound
to co-ownership of the property in circumstances where the underlying
basis for such arrangement has ceased to exist.
[35] The most practical and equitable solution is there for the sale of the
property and the division of the proceeds.
[36] In the matter Erasmus v Pienaar 1984 (4) SA 9 (T) it was confirmed that
the court has a wide equitable discretion when ordering division.
[37] The Respondent opposed the application on the basis that a pactum de
non dividundo existed.
[38] Having considered the submissions of the parties, I am satisfied that the
Applicant has been substantially successful.
[39] There is no reason why costs should not follow the result.
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Conclusion
[40] For the reasons above I grant the order as set out above.
A Vosloo –De Witt
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Electronically submitted
Delivered: This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to the Parties / their
legal representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date of the judgment is deemed to be 6 March 2026
COUNSEL FOR THE APPLICANT: ADV. F BEZUIDENHOU
INSTRUCTED BY: BRAND POTGIETER INC
COUNSEL FOR THE RESPONDENT: ADV. B VAN DER MERWE
INSTRUCTED BY: SHABAN CLARK COETZEE ATT
DATE OF ARGUMENT: 02 March 2025
DATE OF JUDGMENT: 06 March 2025