1
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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 2025-060824
In the matter between:
LANA JAYE JACKSON Applicant
and
RAY ERNEST PETERSEN First Respondent
THE REGISTRAR OF DEEDS Second Respondent
STANDARD BANK Third
Defendant
Neutral citation: Jackson v Petersen & Others Case No 2925-060824 [2026]
ZAWCHC (27-05-2026)
Coram : MAPOMA, AJ
Heard : 25 May 2026
Judgment : 27 May 2026
2
Summary : Termination of joint ownership of immovable property –
actio communi dividundo – requirements thereof – when can be invocable - free
and bound ownership - factors to consider – just and equitable division of the
property – party’s purchase of the other’s share on the property
ORDER
1. The joint ownership of the applicant and the first respondent in the
immovable property known as Erf 3[...], Kraaifontein, situated at 3[...]
M[...] Street, Zonnendal, Kraaifontein, Western Cape held by the applicant
and the first respondent in terms of the Deed of Transfer Number T29889/1
(“the property”), is hereby terminated.
2. The applicant shall retain the property as her sole and absolute property,
and take transfer thereof, into her name subject to the applicant making
payment of a market related price to the first respondent for his half -share
in the property.
3. The applicant shall be liable for payment of all the transfer costs relating to
the transfer of the property into her name.
4. Should the applicant be unable to obtain the necessary financing to take
transfer of the first respondent's share in the property and transfer same
into her name within 3 (three) months from this Order, the property shall
be sold in the open market, and the proceeds shall be divided between the
parties in equal shares.
3
5. The first respondent shall sign all the necessary documents, and do all
things necessary, to give effect to the sale and/or transfer of the property to
the applicant within five (5) days of being requested to do so.
6. In the event that the first respondent fails to comply with paragraph 5 of
the Order, the Sheriff or their lawful deputy is authorised and directed to
sign on his behalf.
7. The first respondent shall pay costs of these proceedings, including
counsel’s costs at scale A of the High Court.
JUDGMENT
MAPOMA, AJ
[1] This is an opposed application founded upon the concept of actio communi
dividundo, in terms of which the applicant seeks termination of the joint
ownership in the immovable property that is co -owned by her and the first
respondent. In p ursuit of this relief sought, the applicant also seeks an order
permitting her to retain sole of ownership property against the payment to the
first respondent of his half share the market value of the property, alternatively,
that the property be sold on an open market and the net proceeds divided
equally between the parties.
[2] Both parties are registered owners of the immovable property known as Erf
3[...], Kraaifontein, situated at 3[...] M[...] Street, Z onnendal, Kraaifontein,
4
Western Cape held by the applicant and the first respondent in terms of the
Deed of Transfer Number T29889/1 (the property). The Registrar of Deeds and
Standard Bank, who are the property transfer registering authority and the
financial i nstitution with a registered mortgage bond in its favour over the
property respectively, are cited in these proceedings purely as parties who have
interests in the matter as such. Incidentally, none of these parties oppose s this
application.
[3] The brief background facts to the dispute are that d uring or about 14
December 2010, the applicant and the first respondent, who were romantically
involved at the time , purchased the property jointly. Subsequent to this
purchase, the property was duly registered in their names as co -owners with
equal shares. The purchase was funded through the home loan in the amount of
R711 000 (Seven Hundred and Eleven Thousand Rand), extended by Standard
Bank.
[4] The parties purchased the property with the intention that it would serve as
their family home and stayed together in the property . The respondent paid the
monthly instalments for the bond, the municipal rates and levies. The applicant
took care of the general maintenance of the property that included installation of
the fireplace, furnishing, their family medical aid, groceries and general living
expenses.
[5] Based on the comparative market analysis conducted b y the property by the
professional property practitioners during June 2024, th e property was valuated
at a market price of approximately R2 100 000.00 (Two Million One Hundred
Rands). As at 2 March 2025, t he outstanding balance in the home loan was
5
R35 927.55 ( Thirty-Five Thousand Nine Hundred and Twenty -Seven Rand
Fifty-Five Cents).
[6] There is one minor child born in 2012 of the romantic relationship between
the parties. The romantic relationship, which was foundational to the acquisition
and co- ownership of the property , was terminated by the applicant on 1 July
2023 when she moved out of the property with the minor child whom she
maintains single handedly. The first respondent continues to reside in the
property, but the applicant is servicing the bond.
[7] The termination of the romantic relationship, according to the applicant, was
triggered by her discovery that , unbeknown to her, the first respondent had not
been employed for the past seven years and had fallen in arrears with his
financial obligations , all of which he failed to disclose to her. This led to ,
among other things, the suspension of the minor child from school due to school
fees that were due and owing.
[8] On 1 October 202 4, the applicant through her legal representatives,
addressed a letter to the first respondent where she tabled a formal request that
the parties ’ joint ownership of the property be terminated . The applicant
proposed that the first respondent either purchase her half-share in the property
at a market related value , alternatively that the property be sold and the net
proceeds divided equally between the parties . The applicant recorded that the
parties’ romantic relationship had broken down and that the continued
ownership of the property was no longer viable , thence she invited the first
respondent to engage constructively with the proposal in order to avoid
unnecessary litigation.
6
[9] On 17 October 2024, t he first respondent responded to the applicant’s
proposal by email where he was agreeable to purchase the applicant’s portion
but in the unspecified future of four to six months . The applicant did not agree
but proposed a settlem ent agreement for termination of co -ownership. An
exchange of email correspondence between the parties resulted in them coming
to a conclusion to divide the property.
[10] On 7 November 2024 , the applicant and first respondent concluded the
settlement agreement in terms of which they agreed to the termination of their
joint ownership of the property . In the agreement the parties also agreed, inter
alia, that they would obtain a market valuation of the property and that both
parties would be entitled to obtain financing for the purchase of the other’s 50%
share in the property ; t hat the party who first obtains the finance of the
mortgage bond would be the party entitled to purchase the other’s share, a nd
would be liable for payment of the transfer costs relating to the transfer of
registration of the property in his or her sole name.
[11] In January 2025, the applicant obtained a pre-approved bond for an amount
of R1,050,000 (One Million and Fifty Thousand Rand ) for the purchase of the
50% of the value of the property . On 30 January 2025, the applicant presented
the offer to purchase to the first respondent but received no response from the
first respondent. Instead, the first respondent sought some extensions of time to
be enabled to purchase the applicant’s share contrary to the terms of the
settlement agreement.
[12] Frustrated by the stance taken by the first respondent , on 13 May 2025, the
applicant instituted these proceedings and set the matter down for hearing on 5
June 2025. On the date of hearing of this matter, the first respondent appeared in
7
court with a legal representative and indicated that he was opposing the
application. However, he did not file any opposing papers notwithstanding the
fact that he was s erved personally with the full set of the application papers on
19 May 2025 for the matter that was set down for 5 June 2025.
[13] On 5 June 2025, the application was postponed to 1 August 2025, to enable
the parties to reach possible settlement of the matter, and the first respondent
was duly served with the notice of set down to that effect . This postponement
also presented the first respondent with further opportunity to file his opposing
papers in the event of the settlement failing, so that he could be ready to
effectively oppose the matter.
[14] On 1 August 2025, the first respondent attended court in person , having
failed to file any opposing papers. The matter was postponed to the semi -urgent
roll to 25 May 202 6. In terms of the court order of 1 August 2025, the first
respondent was required to file h is answering affidavit, if any, on or before 20
November 2025 , and the applicant would file her replying affidavit by 20
February 2026. No answering affidavit was filed by the first respondent.
[15] On 25 May 202 6, the date of the hearing, t he first respondent appeared in
person. He informed the Court that he was opposing the application, and that in
doing so , he would argue the matter himself. During the hearing , the first
respondent argued that he needed t o be afforded opportunity to buy the
applicant’s half share of the property once he obtains finance. This is the basis
of the first respondent’s opposition of the application. He further contended that
when he was able to, he serviced the bond repayment and as such, paid a
substantial contribution thereto.
8
[16] The re spondent confirmed that he concluded the settlement agreement
referred to above, and that he understood the terms of the settlement agreement,
yet he persisted that he wanted to b uy out the applicant. He confirmed that he
had no fixed employment and had no pre -approved finance to bu y the
applicant’s half share of the property.
Applicable Legal Principles
[17] The action communi dividundo is a common law legal concept w hose
genesis is traceable to Roman-Dutch law. It is a legal remedy that is invoked by
a co-owner of the property to terminate its co-ownership and seek division of a
jointly held property. In a seminal judgment that confirmed the application of
this principle in the South African law, the Supreme Court of Appeal (SCA) in
Robson v Theron,1 stated the underlying principle that no one is forced to
remain a co-owner forever.
[18] Thus, where there is refusal by a co-owner to divide the property, any joint
owner can approach the court and claim the division of the joint ownership of
the property.2
[19] In Robson,3 the SCA summarized the applicable principles as follows:
1) No co-owner is normally obliged to remain a co-owner against his will;
2) This action is available to those who own specific tangible things (res
corporals) in co-ownership, irrespective of whether the co -owners are
partners or not, to claim division of the joint property;
3) Hence this action may be brought by a co -owner for the division of
joint property where the co -owners cannot agree to the method of
1 1978(1) SA 841(A)
2 TMN v YN (2025/232707) [2026] ZAGPJHC 256 (6 March 2026) at 32
3 Ibid
9
division. Since a partnership asset is joint property which is held by the
partners in co -ownership, it follows that a partner may as a co -owner
bring this action for the division of a partnership asset where the co -
partners cannot agree to the method of its division. …;
4) It is for purposes of this action immaterial whether the co -owners
possess the joint property jointly or neither of them possess it or only
one of them is in possession thereof;
5) This action may also be used to claim as ancillary relief payment of
praestationes personales relating to profits enjoyed or expenses
incurred in connection with the joint property;
6) A court has a wide equitable discretion in making a division of joint
property. This wide equitable discretion is substantially identical to the
similar discretion which a court has in respect of the mode of
distribution of partnership assets among partners as described by
Pothier.’
[20] In Abrahams v Edross ,4 this court confirmed that the court’s discretion in
applying actio communi dividundo is intentionally wide, as the court may adopt
any method of division that is fair and equitable in resolving the deadlock
between the co-owners. This approach re-enforced the principle that was
pronounced in Robson,5 where the court stated that consideration of fairness and
equity are essential in exploring the wide judicial discretion to determine a just
and practical method of division in the given circumstances.6
Issues
4 2024 JDR 5147 (WCC)
5 Ibid, 1978(1) SA 841(A)
6 Ibid, at 858F-G
10
[21] The central issue for determination is whether the applicant has made out a
case for termination of the joint ownership in terms of the actio communi
dividundo. If the answer is in the affirmative, the next issue to determine what is
the just and equitable mechanism for the division of the property.
Evaluation
[22] It is common cause that parties are joint owners of the property , and that
they acquired the property when they were in a romantic relationship and used
the property as their common home.
[23] It is apposite to consider the type of co-ownership in casu, namely whether
it is free or bound co-ownership. This is so because the law distinguishes the
two types of co-ownership. This distinction is relevant i n determining whether
actio communi dividundo can be invoked to terminate the co -ownership in a
particular case. While this point has not been raised by the parties , I am mindful
that the first respondent is not legally represented, hence in my view , this issue
requires consideration and pronouncement upon.
[24] What makes this distinction a relevant consideration by the Court is that
where there is an underlying legal relationship connecting the co -ownership by
the parties, actio communi dividundo cannot be invoked to terminate the co -
ownership of the property while the underlying relationship is in place . This is
because the co -ownership by the parties i s tied to t he underlying legal
relationship.7
[25] If, however, there is no such underlying legal relationship founding the co-
ownership, the latter is a free co-ownership, and the actio communi dividundo is
7 PN v AE 2024 JDR 3989 (WCC)
11
invocable. On the facts before Court, the only relationship that existed between
the parties was a romantic relationship, which has terminated. The question is
whether the relationship in question ties the co -ownership of the parties to the
property.
[26] In my view, w hile the parties in this case acquired the property as
‘partners’ and cohabited in it for some time, unlike marriage in community of
property, or universal partnership, this type of relationship d oes not create any
underlying legal relationship that ties the parties’ co-ownership of the property.
Thus, the parties are free to unravel the co-ownership independent of the
romantic relationship, which in any event, has terminated.
[27] On the facts, what was a romantic relationship between the parties , leading
to the co -acquisition of the property , came to an end. The undisputed evidence
is that, now that the relationship between the parties is extinct , and they do not
enjoy the existence of the property together, the continued co-ownership is
unworkable. Further, the first respondent cannot afford the bond repayment in
any event.
[28] Thus, on proper consideration of the matter in its entirety, I am satisfied
that the applicant has made out a proper case for the dissolution of the joint
ownership of the property in term of the actio communi dividundo.
[29] The next question for consideration is what the just and equitable
mechanism is to divide the property. The facts are that u pon the demise of the
relationship, the applicant left the property and stays somewhere with the minor
child born of the relationship between the parties . The applicant is employed
12
and services the bond in respect of the property. She has obtained the pre -
approval for a bond to purchase the first respondent’s half share on the property.
[30] The first respondent has no fixed employment but stays in the property. He
concluded a settlement agreement with the applicant wherein he agreed, inter
alia, that the first party to obtain finance would be the one to purchase the
other’s half share in the property. Despite insisting on being afforded time to
purchase the applicant’s half -share contrary to the settlement agreement, t he
first respondent did not obtain any finance to purchase.
[31] In conclusion, having considered all the relevant facts, I am of the view
that, being the mother and custodian of the minor child born of the relationship
between the parties, and being the party paying the bond, it is fair, just and
equitable that the applicant be the suitable party to retain ownership of the
property and to purchase half-share of the notional purchase price thereof.
Costs
[32] It is an established principle that costs follow the results . I find no reason
to deviate from this principle in this case . This is more so in the present case,
where the opposition had no legal basis. The applicant has succeeded in her
claim and is therefore entitled to an award of costs on a party and party scale.
[33] In terms of Rule 67A of the Uniform Rules of Court, Counsel’s fees in the
context of a party and party costs in the High Court are awarded on Scales A, B,
and C as the case may be, depending on a number of factors set out in Rule
67A(3) to be considered when setting out a scale of costs. Such factors include
the complexity of the matter, value of the claim, importan ce of the relief sought
and any other relevant factors.
13
[34] I do not consider th e matter as complicated, more so when the parties had
agreed that the division had to take place. The narrow point of disagreement
was the sentimental resistance by the respondent insisting to be one who
purchases the applicant’s half share even when the odds are not in his favour. I
am of the view that Scale A is appropriate in this case.
Order
[35] In the result, the following order is made:
1 . The joint ownership of the applicant and the first respondent in the
immovable property known as Erf 3[...], Kraaifontein, situated at
3[...] M[...] Street, Zonnendal, Kraaifontein, Western Cape held by the
applicant and the first respondent in terms of the Deed of Transfer
Number T29889/1 (“the property”), is hereby terminated.
2 . The applicant shall retain the property as her sole and absolute
property, and take transfer thereof, into her name subject to the
applicant making payment of a market related price to the first
respondent for his half-share in the property.
3 . The applicant shall be liable for payment of all the transfer costs
relating to the transfer of the property into her name.
4 . Should the applicant be unable to obtain the necessary financing to
take transfer of the first respondent's share in the property and transfer
same into her name within 3 (three) months from this Order, the
14
property shall be sold in the open market, and the proceeds shall be
divided between the parties in equal shares.
5 . The first respondent shall sign all the necessary documents, and do all
things necessary , to give effect to the sale and/or transfer of the
property to the applicant within five (5) days of being requested to do
so.
6 In the event that the first respondent fails to comply with paragraph 5
of the Order, the Sheriff or their lawful deputy is authorised and
directed to sign on his behalf.
7 . The first respondent shall pay costs of these proceedings , including
counsel’s costs at scale A of the High Court.
_______________________
ZL MAPOMA
ACTING JUDGE OF THE HIGH COURT
15
Appearances
Counsel for the Plaintiff : Adv R Potgieter
Instructed by : Botma & Associates, Cape Town
Counsel for the Respondents : In person
Instructed by : N/A