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[2015] ZAWCHC 91
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Mbalo v Makhosonke and Others (21021/2013) [2015] ZAWCHC 91 (22 June 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 21021/2013
DATE:
22 JUNE 2015
In
the matter between
:
NONKULULEKO
MBALO
.....................................................................................................
Applicant
v
ZOLANI
MAKHOSONKE
.........................................................................................
First
Respondent
STANDARD
BANK OF SOUTH
AFRICA
............................................................
Second
Respondent
REGISTRAR
OF
DEEDS
..........................................................................................
Third
Respondent
CITY
OF CAPE
TOWN
...........................................................................................
Fourth
Respondent
Court:
Justice J Cloete
Heard:
5, 6 and 13 May 2015
Delivered:
22 June 2015
JUDGMENT
CLOETE J:
Introduction
[1]
These are motion proceedings, coupled with
a referral to oral evidence, in which the applicant seeks relief on
the basis of the
actio communi
dividundo
.
[2]
The applicant and the first respondent
(‘
respondent’
),
who opposes some of the relief sought, are the joint owners in equal
undivided shares of an immovable property, being Erf 4431
Umnga
Crescent, Langa, Western Cape (‘
the
property’
). The second respondent
is the holder of the mortgage bond registered over the property.
Along with the third and fourth respondents
it abides the court’s
decision. For sake of convenience I will refer to the applicant and
respondent as ‘
the parties’
where necessary.
Common
cause facts
[3]
The parties became involved in a romantic
relationship during 2003. The applicant fell pregnant and their son,
L, was born in January
2004.
[4]
The applicant resided with her mother at
the time but wished to purchase her own home. She made enquiries and
selected the property,
which was to be built on a ‘
plot
and plan’
basis. It was on the
market at a total price of R164 612. She did not qualify for a home
loan in this amount. She approached the
respondent who agreed to
combine his income with hers to enable her to qualify.
[5]
During December 2004 their joint
application was approved by the second respondent subject to the
registration of a mortgage bond
in the same amount over the property
as security. It was subsequently transferred into their joint names.
The dwelling on the property
was completed during April 2005. The
parties and L resided there from May 2005 until March 2008 when the
respondent permanently
vacated it following the breakdown of their
relationship. The applicant and L still reside there.
[6]
During the period in which the parties
jointly resided at the property the respondent contributed an agreed
amount of R2 000
per month. After his departure the parties
agreed that he would contribute R1 000 per month towards L’s
maintenance
which he has paid but not increased since 2008. The only
amount which he expended on maintenance and improvements to the
property
was R5 000 for a vibacrete wall.
[7]
From inception of their co-ownership the
applicant paid all the monthly bond instalments as well as municipal
charges. She also
expended a total amount of R19 800 on
improvements thereto, made up as follows:
2005:
Burglar bars R 3 500
2006:
Built in cupboards in kitchen
R 6 800
2008:
Laminated flooring R 1 000
2012:
Brick wall and gate R 8 500
Total:
R19 800
[8]
Over the years since 2008 the applicant has
made various attempts to reach an agreement with the respondent
regarding the termination
of their co-ownership. These attempts
proved fruitless and she launched these proceedings on 19 December
2013.
[9]
The applicant initially sought orders that
the respondent transfer his undivided half share to her for no
consideration. During
her subsequent testimony she accepted that he
may well be entitled to some form of compensation and left it in the
hands of the
court to determine what would be just and equitable. The
respondent agrees that the co-ownership must be terminated but
insists
that he must receive the full value of his half share net of
the amount owing to the second respondent and disposal costs.
[10]
The agreed market value of the property is
R365 000 and the agreed amount owing to the second respondent
under the mortgage
bond is R118 067. The parties also agreed
that the total amount paid on account of the bond during the period
of their cohabitation
(i.e. 1 May 2005 until 1 March 2008) was
R65 237, and the total amount paid on the bond since inception
is R226 044.
Issues
to be determined
[11]
In terms of an order of Roux AJ of 29
August 2014, the issues to be determined at the hearing of oral
evidence were:
11.1
The basis upon which co-ownership of the property was agreed between
the parties;
11.2
Whether the respondent is entitled to compensation upon termination
of co-ownership, and if so, in what amount;
and
11.3
What a just and equitable method of terminating the co-ownership
would be.
[12]
In
Lekup Prop
Co 4 (Pty) Ltd v Wright
2012 (5) SA 246
(SCA) at para [32] the Supreme Court of Appeal set out the approach
to be taken when evaluating evidence in motion proceedings,
coupled
with a referral to oral evidence on limited issues, as follows:
‘
A
referral to trial is different to a referral to evidence on limited
issues. In the latter case, the affidavits stand as evidence
save to
the extent that they deal with dispute(s) of fact; and once the
dispute(s) have been resolved by oral evidence, the matter
is decided
on the basis of that finding together with the affidavit evidence
that is not in dispute.’
Evidence
on the disputed issues
[13]
The applicant testified that after she fell
pregnant with L (her second child) she began to seriously consider
securing a home for
herself and her children. She was living with her
mother in Nyanga but it was cramped and inconvenient, given that her
elder child
had just commenced preschool in Athlone and she was
employed in a clerical position in the finance department of the
University
of Cape Town with its offices in Mowbray. She liked the
Langa area which was closer to the school and her work. She herself
had
attended school there and she was familiar with the area.
[14]
While looking around for a suitable
property to purchase she approached the second respondent to
ascertain what amount she would
qualify for in the event of her
making application for a home loan. She was told that on her income
at the time she would qualify
for a maximum amount of R120 000.
There were no properties available for R120 000 or less in the
Langa area. The applicant
believed that she could nonetheless afford
to purchase one of the properties there which ranged in price between
R140 000
and R160 000, even though she did not earn an
income deemed sufficient for the bank’s qualifying criteria.
[15]
Knowing also that she intended advancing in
her career with a concomitant increase in her income, the applicant
approached a friend
and work colleague, Ms Patiwe Ntshongwana. She
proposed that, in order to enable her to qualify for a home loan in
the desired
amount, she and Ms Ntshongwana make a joint application
to the second respondent on their combined incomes so that she could
secure
a property. Her plan was that once she started earning a
greater income she and Ms Ntshongwana would approach the bank to have
herself substituted as the sole mortgagor. If the second respondent
required that the property be registered in their joint names,
then
simultaneously with her being substituted as sole mortgagor she would
also take transfer of Ms Ntshongwana’s undivided
half
share.
[16]
Her evidence is supported by the affidavit
of Ms Ntshongwana in which she confirms the aforegoing and that:
‘
In
terms thereof, my assistance would entail merely lending my name as a
joint applicant for the home loan, however, the applicant
would carry
the full responsibility for the loan repayments and financial
commitments towards the bank.
It
was never our understanding or intention that by so assisting the
applicant I would have a right to a portion of the property
or a
claim of any sort towards the property. The whole exercise was to
assist the applicant to qualify for a home loan with the
bank.
Although
I was prepared to assist the applicant on this basis, unfortunately,
my application for credit was turned down by the bank.
For that
reason I was unable to assist the applicant and I believe she then
approached the
[first]
respondent,
on a similar basis.’
[17]
The applicant remained determined to secure
a home for herself and her children. When she found the property, she
decided to turn
to the respondent for assistance, given the nature of
their relationship, that L was his child, and that he earned an
income considerably
higher than either her or Ms Ntshongwana. She
trusted him and told him that he could even reside at the property
with them if he
wished.
[18]
The respondent agreed to assist her. When
they met with the developer to sign the documents required for the
joint application for
a home loan they were informed that: (a) the
property would have to be registered jointly in their names; and (b)
if the property
was ever sold they would ‘
have
to split profits and losses’
.
This did not concern the applicant because: (a) she did not envisage
having to sell the property other than to upgrade; and (b)
it was to
be the future home of herself and her children and she accepted full
financial responsibility for it.
[19]
According to the applicant no specific
discussion took place about the terms of the parties’
co-ownership. The respondent
was aware of what had transpired with Ms
Ntshongwana and this, coupled with her simple request to him to
assist her by combining
his income with hers for the purpose of
enabling her to qualify, led her to believe that their arrangement
would be no different.
In addition, the respondent showed scant
interest in the property, both during its construction and
thereafter, and his actual
financial contributions merely served to
reinforce her understanding of their arrangement. When the respondent
vacated the property
in March 2008 he had already purchased himself
another home and he has been residing there ever since.
[20]
It was also the applicant’s testimony
that the size of the dwelling which she (alone) selected to be built
from the various
available options was based on what she could
afford, and not on what the parties could jointly afford. The
improvements which
she subsequently effected to the property were
entirely her own decision because, in accordance with her
understanding of their
arrangement, there was no need to first
consult with the respondent or obtain his permission. He never
objected. The vibacrete
wall for which he paid during his occupation
of the property was a safety measure to prevent direct unfettered
access from the
street. It was this wall which the applicant
subsequently replaced at her own expense to enable a gate to be
installed.
[21]
It was the applicant’s evidence that
the arrangement during the period of their cohabitation was that all
of the expenses
of the joint household (including the bond
instalments and municipal charges) would be shared equally. The
applicant calculated
that one-half of these expenses equated on
average to roughly R2 000 per month, and this amount was agreed.
At the applicant’s
suggestion the respondent paid it to her in
cash. This arrangement continued even when the respondent’s
brother resided with
the parties from some time in 2006 until he
vacated the property together with the respondent in March 2008.
After the respondent’s
departure the parties agreed that R1 000
per month would be paid by him as maintenance for L.
[22]
After he left the property the respondent
told the applicant that ‘
I must
take his name off the bond’.
She
accepted this without objection and undertook to approach the second
respondent in this regard. However the respondent then
suggested that
the property be sold ‘
so that he
could get his share, because he said he would not just have put his
name
[on the bond]
without
getting anything
[in return]’
.
The applicant refused. She also refused his next suggestion, namely
to rent one of the two bedrooms at the property so that she
could
raise an amount sufficient to pay the respondent the value of his net
undivided half share.
[23]
The applicant disputed the respondent’s
version that he had viewed the arrangement between them as an arm’s
length joint
investment. She maintained that all of her attempts to
resolve their dispute over subsequent years came to nought. She could
never
get a clear indication from the respondent of what exactly he
wanted in order to settle the matter and all offers which she made
were rejected, even after one of these had been accepted by him. Her
evidence was borne out by various items of correspondence
to which
she was referred.
[24]
It was also her testimony that whereas
initially she had earned R4 000 per month gross and R3 600
per month net, as an
administrative assistant she currently earns
R14 284 per month gross and R10 639 per month net. She has
approached the
second respondent and it has granted her a
pre-approved loan of R320 000, including what is currently owed
under the mortgage
bond of R118 067. She is thus able to pay to
the respondent the amount which the court deems just and equitable
without having
to sell the property.
[25]
The applicant denied that the respondent
held discussions with her about the basis upon which they would
purchase the property,
and in particular that he had not been
prepared simply to bind himself as surety for her obligations under
the mortgage bond ‘
because he
would then not get the benefit of the property’.
She was consistent in her testimony that ‘
his
name was only on the papers to enable me to qualify for a bond’.
She denied that the parties agreed that by paying the respondent’s
50% share of the monthly bond instalment, the applicant
would
effectively be renting his half share of the property. She maintained
that the first occasion on which the respondent mentioned
receiving
any financial benefit from the property was after he vacated it in
March 2008.
[26]
The applicant was candid that in an effort
to resolve the dispute during 2011 she accepted the value of R250 000
placed on
the property by the respondent at the time ‘
but
maybe he was not aware that the costs involved and payments involved
would need to come off’.
She
explained that her understanding of splitting of profits and losses
was that the bond instalments paid and the cost of improvements
to
the property would have to be deducted from its value (net of the
amount owing under the mortgage bond) before the remaining
‘
profit’
would be divided equally.
[27]
The respondent testified that he holds a
B.Com degree and is employed as an assistant financial manager at the
University of Cape
Town. He confirmed that when the parties became
romantically involved the applicant expressed the wish to purchase a
home for herself
and her children. He was aware that the second
respondent was not prepared to grant her a home loan on her own
income and ‘
we talked about
options available to her. One I mentioned is that if she had enough
savings she could pay the difference as a larger
deposit, but she had
no savings. She mentioned that the bank had told her that if she
could come up with another person to apply
with, she might qualify. I
asked her in what capacity would she bring this person – as
owner or as surety – she was
not clear on which it was to be.’
[28]
His testimony was further that:
‘
I
said if a person stood surety the bank would be able to recover the
loan if the other person didn’t pay and yet the surety
had no
benefit at all. When it came to co-ownership the bank could claim the
full amount from either of the parties and the co-owner
would then at
least have a claim to the asset for payment of the proceeds of the
loan. And in my case I would prefer it to be in
the latter position
and I would never put someone into suretyship. We left it at that.
At
some time much later in another conversation I discovered she was
looking to buy a property together with her friend Ms Ntshongwana.
I
was still curious to know what their respective capacities would be
if they were to buy together. She answered that both were
desperate
to move out of their respective places so were prepared to apply
jointly and stay together, although I was still not
clear on whether
Ms Ntshongwana would be co-owner or surety.
Some
time passed and in another conversation she asked me if I could buy a
property with her. I was surprised because I thought
she was buying
it with Ms Ntshongwana. I asked her why she was approaching me
and she said that she was more comfortable with
me, she trusted me
more.
I
referred her to our previous discussions and said I personally would
not stand surety or place myself in a position which amounted
to me
standing surety. She understood that and agreed, she had no objection
to what I had said. Because we were romantically involved
I said to
her that if we are to do co-ownership it would be at arm’s
length, i.e. independent of and not influenced by our
relationship.
We agreed on that.
The
next issue was that she was keen on moving into the property and I
wasn’t. I would be staying in a different place where
I paid to
stay – a flat in Claremont – so she was going to take
occupation of the property. In order for me to take
co-ownership of a
property where I was not staying, as co-owner I would be entitled to
rental from whoever would be staying there.
So we agreed that rent
would be determined by one half of the bond instalments and one half
of municipal charges such as rates.
And I took it that we would each
be liable for 50% of the expenses which she would then have to pay.
So she would pay 100% but
50% of that would be regarded as payment on
my behalf or allocated to me as rental.’
[29]
The respondent maintained that the parties
reached this agreement during August or September 2004 and that it
formed the basis of
their subsequent joint application for a home
loan and co-ownership of the property. It was for this reason that he
had given the
applicant the option to sell or rent out one of the
rooms at the property after he vacated it.
[30]
He admitted that he had accepted a proposal
to pay him R36 000 during 2011 (via the applicant’s
attorney, Mr Van der
Merwe). His vague and unsatisfactory evidence
about why he had thereafter changed his mind merely served to show
that he had simply
gotten cold feet, and not that there was any
rational or logical basis for him to have rejected it.
[31]
The respondent contended that he had been
at pains to protect his interest in the property from the outset, but
admitted that he
had not taken any steps to reduce the parties’
agreement to writing. In his view, the fact of his registration as
co-owner
afforded him enough protection, and their oral agreement
relating to the payment of rental was sufficient because they had
trusted
each other. He claimed that he had not wanted to ‘
rush’
the applicant to sell after he vacated, but admitted that her
attempts over the years to settle the issue had all been fruitless
and that he himself had not initiated any steps to resolve it other
than to insist upon payment of 50% of its net value.
[32]
In his words he was ‘
in
no hurry, I would not have wanted to impose on her to extricate
myself from the situation’.
However
the impression which I gained was rather that the respondent had
known that the longer he could draw out the dispute the
more he might
benefit financially as the value of the property increased and the
balance owing under the mortgage bond reduced.
He eventually conceded
that his monthly contributions of R2 000 during the period when
he resided at the property would have
been wholly inadequate to cover
his share of the household expenditure plus L’s maintenance and
half of the monthly bond
instalments. He also conceded that, despite
the increase in the cost of living, he had not voluntarily increased
L’s maintenance
of R1 000 per month since March 2008; had
not independently contributed to the municipal charges of the
property; and apart
from assisting the applicant to qualify for the
home loan and erecting the vibacrete wall, he had made no
contributions whatsoever
to its maintenance, the increase in its
value or the reduction of the amount owing under the mortgage bond.
[33]
The applicant impressed as a patently
honest witness who was consistent in her evidence, was unshaken in
cross-examination and was
not evasive. Where necessary she made
concessions in the respondent’s favour. When she could not
remember something she was
candid. She admitted that at times since
2008 she had felt vengeful towards the respondent but the clear
impression that I gained
was that this was a thing of the past and
that at least since 2011 she was
bona
fide
in her wish to resolve the
co-ownership issue with him. I found her to be a reliable and
credible witness.
[34]
On the other hand, the respondent did not
impress. He came across as arrogant, evasive and condescending
towards the applicant.
He struck me as opportunistic in his dealings
with her and despite being obviously intelligent, he was often unable
to give straight
answers to simple questions.
[35]
In addition, the inherent probabilities
favour the applicant’s version. Her understanding of the
arrangement with the respondent
was the same as that which she had
reached with Ms Ntshongwana and of which he was aware. Her selection
of a dwelling which fell
within her budget and not the parties’
joint budget, her consistent payment over the years of the mortgage
bond instalments
and municipal charges and the respondent’s
distinct lack of interest in the property and its maintenance, lend
credence to
her version. So too do the respondent’s
failure to initiate steps for years to resolve the issue as well as
his acceptance
of R36 000 during 2011. If he was
bona
fide
about the terms of their
agreement, it begs belief that he would, even reluctantly, have
accepted this amount.
[36]
The applicant bore the onus to prove the
agreement on which she relied. Having regard to the above I find that
wherever the applicant’s
version differs from the respondent’s,
hers is to be accepted and that she has thus discharged the onus
resting on her.
Prescription
[37]
Before dealing with a just and equitable
method of terminating the parties’ co-ownership, it is
necessary to consider the
respondent’s contention that much of
the applicant’s ‘
claim’
for the amounts expended by her on the property has prescribed.
[38]
In support hereof the respondent relies on
the decision in
Claassen v Quenstedt and
Others
1199/2011 [2014] ZAECPEHC 18 (25
March 2014). There the court held that the
actio
communi dividundo
distinguishes between
a claim for termination of co-ownership flowing from a partnership
and one which does not; and that accordingly
only claims flowing from
a partnership are protected against the running of prescription until
after dissolution thereof in terms
of
s 13(d)
of the
Prescription Act 68 of 1969
. The respondent thus argues that any
amounts expended by the applicant on the property more than three
years ago have prescribed
in terms of
s 11(d)
of that Act.
[39]
Apart
from
Claassen
,
I have been unable to find any decision in which one of the parties
to an
actio
communi dividundo
raised the issue of prescription in a dispute concerning co-ownership
where they were neither married nor had a partnership. Most
of the
decisions are distinguishable on their facts.
[1]
[40]
In
Matadin v
Parma and Others
[2010] ZAKZPHC 18 (7
May 2010) at para [2] the court, in dealing with the
actio
communi dividundo
, confirmed that ‘[it]
may make any equitable adjustment if one
of the co-owners has, for example, benefited financially from the
property or incurred
expenses in respect of the property’
without imposing any limitation in respect of prescription.
[41]
In
Dube v
Hlako
[2013] ZAGPJHC 324 (28 November
2013) the applicant sought an order terminating the parties’
co-ownership of their immovable
property pursuant to the breakdown of
their relationship. They had not entered into a civil marriage and
the court rejected the
respondent’s version that they had
concluded a customary marriage in terms of the
Recognition of
Customary Marriages Act 120 of 1998
. The applicant also sought orders
that the property be sold and that the net proceeds be applied, first
towards refunding the amount
which he had paid during 2010 to settle
the balance owing under the mortgage bond from the proceeds of his
pension, and thereafter
that the balance be divided equally. The
court had no difficulty in granting the relief sought, although it
must be stated that
prescription had not been raised and this was
thus not an issue before it.
[42]
In my view the respondent has misconceived
the applicant’s case. Her evidence concerning her contributions
to the property
was not advanced in support of a monetary claim
against the respondent, but to contextualise the terms of the
agreement on which
she relied in claiming transfer of his undivided
net half share for no consideration. This approach is consistent with
her acceptance
that he might well be entitled to payment of some form
of compensation for his contributions thereto on the basis of the
actio communi dividundo
which was explained in
Robson v Theron
1978 (1) SA 841
(A) at 856G-857D as follows:
‘
(B)
The principles of the common law applicable to the
actio
communi dividundo
may be briefly
summarised 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 corporales
)
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
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.
This would obviously cover the position where, after dissolution of a
partnership, a continuing partner as a co-owner
retains possession of
an undivided partnership asset. A retiring partner as a co-owner
would accordingly be entitled to institute
this action against the
continuing partner as co-owner to compel a division of the
partnership asset in question.
4.
It is for purposes of this action immaterial whether the co-owners
possess the joint property jointly or neither of them possesses
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
.’
[43]
To my mind, rather than restricting a claim
for expenses incurred in respect of joint property by making it
subject to prescription
in all instances other than marriage and
partnership,
Robson
indicates that such a claim is not limited, irrespective of whether
it arises from partnership, marriage or otherwise. If this
were not
the case, the court would have stated that such a claim is subject to
the provisions of
ss 11
and
13
of the
Prescription Act. It
would have
made clear that the ‘
wide
equitable discretion’
of a court
would be fettered by these statutory provisions in such instances. It
would also not have held that the discretion is
‘
substantially
identical’
to the similar
discretion conferred on a court in distributing partnership assets.
[44]
There is an additional and important
consideration, namely the equality principle enshrined in
s 9
of
the Bill of Rights, that everyone is equal before the law and has the
right to equal protection and benefit of the law.
S 13
of the
Prescription Act protects
, with good reason, the rights of creditors
and debtors who are married to each other and/or those who have
claims arising out of
a partnership, by delaying the completion of
prescription. Having regard to the limitation clause in
s 36
of
the Bill of Rights it would in my view amount to unfair
discrimination to find that where parties are co-owners but are not
married to each other and do not have a partnership agreement, they
do not enjoy the same protection under
s 13.
It is not difficult
to envisage a situation where, as in
Claassen
,
parties cohabit in a romantic relationship for years, and only once
that relationship ends do they give any consideration to how
their
respective contributions to their joint property should be taken into
account. If individuals in a partnership, whether it
be universal or
a commercial enterprise, and spouses are protected, so too should
persons in far more vulnerable situations such
as the applicant.
[45]
I am accordingly in respectful disagreement
with the decision in
Claassen.
Accordingly, if I am wrong in my understanding of the applicant’s
case, it is in any event my view that the prescription
point raised
by the respondent does not assist him.
Just
and equitable division
[46]
Having regard to all of the facts and
circumstances it would not be just and equitable to order the
applicant to sell the property,
nor compel her to pay the respondent
50% of its net value, being R123 466.50.
[47]
I shall assume in the respondent’s
favour that each party effectively contributed 50% towards the
monthly bond instalments
during the period when he resided at the
property, i.e. 50% of the agreed total payments during that period of
R65 237. The
respondent’s only other contribution was the
cost of the vibacrete wall of R5 000 of which R2 500 was
thus paid
on the applicant’s behalf.
[48]
The applicant’s contributions on the
respondent’s behalf are calculated at 50% of the total amount
paid on the bond
since inception of R226 044 less R65 237,
i.e. 50% of R160 807, being R80 403.50 to which must be
added 50%
of the cost of improvements of R19 800, i.e. R9 900
arriving at a total of R90 303.50.
[49]
The net amount which the applicant has thus
paid on behalf of the respondent is R90 303.50 less R2 500,
being R87 803.50.
[50]
The sum to be paid by the applicant to the
respondent is therefore R35 663 calculated as follows:
Agreed
market value: 365 000
Less
:
agreed bond balance
118 067
=
246 933
Less
:
respondent’
s 50%
share
123 466
=
123 467
Less
:
amount paid by applicant
on
behalf of respondent
87 804
=
35 665
Costs
[51]
Given that the applicant has been
substantially successful, there is no reason why costs should not
follow the result.
Conclusion
[52]
In the result I make the following
order:
1.
The joint ownership of the applicant and first respondent of the
immovable property, being Erf 4431 Umnga Crescent, Langa, Western
Cape is terminated.
2.
The first respondent is ordered to do all things and to sign all
documents as may be necessary to effect transfer into the applicant’s
name of his undivided half share in the said property against payment
to him by the applicant of the sum of R35 663.
3.
The costs of effecting the aforesaid transfer shall be borne by the
applicant and first respondent equally.
4.
The first respondent shall pay the applicant’s costs on the
scale as between party and party including all reserved costs
orders.
J
I CLOETE
[1]
1.1
Moosa
and Others v Akoo and Others
[2008] 1 All SA 585
(N): Liquidation of assets following upon
dissolution of partnership.
1.2
Botha NO v Deetlefs and Another
2008 (3) SA 419
(N):
Application for ejectment of co
-habitee
who relied on existence of tacit universal partnership.
1.3
Falcke v Smith
[2008] ZAGPHC 482
(23 September 2008):
Division of jointly owned immovable property where parties had
neither married nor had a partnership but
issue of prescription did
not arise because proceedings instituted within approximately one
year of amounts having been expended
by plaintiff.
1.4
Els v Smit and Another
[2009] 1 All SA 339
(SCA): Liquidation
of assets of dissolved partnership.
1.5
Mills v Mills
[2008] ZAWCHC 121
(11 December 2008): Division
of co-ownership of immovable property acquired during marriage but
overlooked in consent paper on
divorce.
1.6
Schrepfer v Ponelat
[2010] ZAWCHC 193
(26 August 2010): Claim
based on universal partnership.
1.7
Van Niekerk v Van Niekerk and Others
[2011] ZAWCHC 233
(23
May 2011): One co-owner sought partition of the jointly owned
inherited property on a particular basis. No dispute about
expenses
incurred in respect thereof.
1.8
Morar NO v Akoo and Another
2011 (6) SA 311
(SCA):
Liquidation of assets following upon dissolution of partnership.
1.9
Vorster and Others v Vorster and Others
[2013] ZAECGHC 1 (10
January 2013): Held not necessary to obtain co-owners’ consent
to alienation of undivided half share
in immovable property.
1.10
J NO v M NO
[2014] ZAGPPHC 264 (12 February 2014): Two
executors locked in dispute about co-ownership of immovable property
owned by two
deceased who were married to each other.
1.11
Baloyi v Baloyi
[2014] ZAGPPHC 312 (3 June 2014): Application
to enforce the terms of a divorce order which included a deed of
settlement including
immovable property.
1.12
A v Commissioner for the South African Revenue Service
[2014]
ZATC3 (8 December 2014): Tax matter dealing with mingling and mixing
of
Merx
.
1.13
E v E and Others
[2015] ZAGPPHC 245 (26 February 2015):
Exception: parties previously married and unable to agree on manner
of division of joint
matrimonial property.
1.14
T v T and Another
[2015] ZAGPJHC 87 (13 March 2015): Parties
engaged in divorce proceedings – dispute regarding joint
ownership.
1.15
R v D
[2015] ZAECPEHC 35 (22 May 2015): Exception: parties
previously married and unable to reach agreement on manner of
division of
jointly owned matrimonial property.