Baloyi v Baloyi (43844/2008) [2014] ZAGPPHC 312 (3 June 2014)
- Citation
- [2014] ZAGPPHC 312
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Baqwa
- Case number
- 43844/2008
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Baqwa
- Case number
- 43844/2008
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the parties, as co-owners of the immovable property following their divorce, had failed to implement the agreed method of terminating co-ownership as set out in their settlement agreement. The applicant established the existence of joint ownership and the inability of the parties to execute the agreed division. The court held that no co-owner is obliged to remain in co-ownership against their will and that judicial intervention is warranted where parties cannot agree on the method of division. The appointment of a receiver to sell the property and distribute the proceeds, after settling the mortgage and related expenses, was deemed appropriate. Costs were ordered to be paid from the proceeds of the sale, considering both parties' interests and the respondent's potential claims for expenses incurred in preserving the property.
Court disposition
Application granted. Orders issued for termination of co-ownership, appointment of receiver, sale of property, settlement of mortgage and expenses, equal division of balance, and costs paid from sale proceeds.
Orders
- A receiver is appointed to realise and sell the immovable property at a market-related price.
- The proceeds of the sale shall be used to pay the outstanding amount on the mortgage bond and related expenses.
- The remaining balance shall be divided equally between the parties.
- Costs are to be paid out of the proceeds of the sale of the immovable property.
02
Material facts
Parties
Papie Sydney Baloyi
Applicant Counsel: M.L Haskins SCMathane Rebecca Baloyi
RespondentAmounts and remedies
- Purported Purchase Price in Cancelled Sale Agreement: ZAR 500,000
- Outstanding Amount Referenced in Agreement: ZAR 24,000
03
Procedural history
Posture
Urgent Application / Application for Enforcement of Divorce Settlement and Termination of Co Ownership
04
Questions and positions
Legal issues
- 01
Whether the co-ownership of the immovable property should be terminated and a receiver appointed to sell the property.
- 02
Whether the proceeds of the sale should be used to settle the mortgage and related expenses, with the balance divided equally between the parties.
- 03
Whether costs should be paid out of the proceeds of the sale.
Party arguments
- Applicant
- The applicant contends that the parties, previously married in community of property, agreed in a divorce settlement to terminate co-ownership of the immovable property. Despite attempts, the agreement has not been implemented. The applicant seeks the appointment of a receiver to sell the property, settle the mortgage and related expenses, and divide the remaining balance equally. The applicant also addresses the respondent's objections regarding the receiver's credentials and the cancellation of a purported sale agreement, providing supporting documentation.
- Respondent
- The respondent opposes the application on two main grounds: the applicant's initial failure to provide the receiver's curriculum vitae and consent, and the alleged non-cancellation of a sale agreement with third parties. The respondent denies that the sale agreement was cancelled and disputes allegations of profit from renting the property. She maintains that she has preserved the property and may have expenses to claim, justifying her opposition.
05
Court’s reasoning
Legal principles
- 01
Runciman v Schultz 1923 TPD 45
Joint ownership allows each owner to use, enjoy, and alienate their share, with profits divided proportionately.
- 02
Badenhorst v Marks 1911 TPD 147
A joint owner may claim division of common property at any time, regardless of co-owners' agreement.
- 03
Robson v Theron 1978(1) SA 841 A at 855 A-B
A co-owner seeking termination of co-ownership must prove joint ownership, refusal or inability to agree on termination, and facts enabling the court to exercise discretion on the method of termination.
- 04
Ntuli v Ntuli, 1946 T.P.D. 181 at p.184
Where co-owners agree to divide property, relief is by specific performance; if there is refusal or inability to agree on the method, the court may determine the mode of division.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the parties, as co-owners of the immovable property following their divorce, had failed to implement the agreed method of terminating co-ownership as set out in their settlement agreement. The applicant established the existence of joint ownership and the inability of the parties to execute the agreed division. The court held that no co-owner is obliged to remain in co-ownership against their will and that judicial intervention is warranted where parties cannot agree on the method of division. The appointment of a receiver to sell the property and distribute the proceeds, after settling the mortgage and related expenses, was deemed appropriate. Costs were ordered to be paid from the proceeds of the sale, considering both parties' interests and the respondent's potential claims for expenses incurred in preserving the property.
Obiter and limits
- The respondent may have legitimate expenses to claim for the preservation of the property, which should be addressed by the liquidator.
- The occupation of the property by one party for an extended period while the other seeks alternative accommodation is inequitable and does not confer greater rights on the occupant.
Court disposition
Application granted. Orders issued for termination of co-ownership, appointment of receiver, sale of property, settlement of mortgage and expenses, equal division of balance, and costs paid from sale proceeds.
- A receiver is appointed to realise and sell the immovable property at a market-related price.
- The proceeds of the sale shall be used to pay the outstanding amount on the mortgage bond and related expenses.
- The remaining balance shall be divided equally between the parties.
- Costs are to be paid out of the proceeds of the sale of the immovable property.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
NORTH GAUTENG
HIGH COURT PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case no: 43844/2008
DATE: 03 JUNE 2014
In the matter between:
PAPIE SYDNEY BALOYI....................................................................................APPLICANT
AND
MATHANE REBECCA BALOYI.................................................................RESPONDENT
Coram: Baqwa J
Heard: 3 June 2014
Delivered: 3 June 2014
JUDGMENT
BAQWA J
Flynote: Actio communi dividundo-co-ownership rights.
Summary: This is an application to enforce the terms of a divorce order which included a deed of settlement
Annotation
Case law
Runciman v Schultz 1923 TPD 45
Badenhorstv Marks 1911 TPD 147
Robson v Theron 1978(1) SA 841 A at 855 A-B
Ntuli v Ntuli, 1946 T.P.D. 181 at p.184, per Barry, J.P.
[1] This is an application for an order declaring the co-ownership between the parties of the immovable property known as 670 Block L Soshanguve, Gauteng (the immovable property) be terminated on certain terms and conditions and that a receiver be appointed to realise the immovable property and sell it at a market related price and that the proceeds arising from the sale of the immovable property be utilized to pay the outstanding amount in terms of the mortgage bond registered over the immovable property together with related expenses.
Applicant seeks further that the remaining balance be divided equally between the parties
[2] The parties were previously married to each other in community of property. Their marriage was dissolved by a decree of divorce issued on 24 May 2010 and a written settlement agreement was incorporated in the decree of divorce.
[3] At the time of divorce and as per their marriage in community of property, the parties we co-owners of the immovable property.
[4] The parties agreed about the manner of division of the joint estate and the manner in which co-ownership of the immovable property was to be terminated. The terms were recorded in the settlement agreement. In the interim, respondent has resided in the immovable property.
[5] The parties have attempted to implement the terms of the agreement regarding termination of the co-ownership but up to the time of launching of this application they have been unsuccessful.
[6] The law
6.1. Joint ownership is the ownership which two or more persons have simultaneously in the same piece of property each having an undivided share in it. In the exercise of their rights, each joint owner may use, enjoy and alienate his/her share of the property.
All profits accruing to the property must be divided proportionately among the joint owners.
Runciman v Schultz 1923 TPD 45
6.2. A joint owner may claim a division of the common property at anytime, whether or not his co-owners are agreeable.
Badenhorst v Marks 1911 TPD 147
6.3. The claim of a co-owner to have co-ownership is in accordance and by virtue of the actio communi dividundo and a party claiming termination of co-ownership has to prove the existence of the joint ownership. Secondly, he must prove a refusal by the other party to agree to the termination of the joint ownership, an inability to agree the method of termination or an agreement to terminate but a refusal or inability to comply with the terms of the agreement. Thirdly an applicant must allege or prove the facts upon which the court can exercise its discretion as to how to terminate the joint ownership.
[7] Respondent has filed an opposing affidavit in which she raises mainly two grounds of opposition. The first is the failure by the applicant to file the curriculum vitae and a consent by the proposed receiver RP Jordan. Applicant has filed a replying affidavit to which he annexes a ‘consent to appointment as liquidator and receiver’ by P Jordan together with his abridged curriculum vitae.
[8] Further, respondent denies the cancellation of the purported agreement of sale between herself and the applicant on the one hand and R.P Baloyi and Ms R Mabusela (purchasers) on the other. In response, applicant has referred to correspondence dated 28 October 2013 in which the purchasers are notified of the agreement due to their failure to pay the amounts of R500.000 and R24.000 as per agreement. Respondent does not allege that the purpoted agreement dated 26 February 2013 was honoured by R.P Baloyi and Ms Mabusela yet the purchase price of R500,000 was due to be paid on 31 August 2013 in terms of the purported agreement of sale.
[9] In the matter of Robson v Theron 1978(1) SA 841 A at 855 A-B Joubert JA pronounced as follows:
"The basic notion underlying the actio communi dividundo is that no co- owner is normally obliged to remain such against his will. Van Leeu-wen , Centura Forensis, 1.4.27.1. Accordingly when co-owners are desirous of having their joint property divided and the share of each allotted to them in severalty, they may agree to this division among themselves without having recourse to judicial proceedings.
‘Where there are co-owners who have agreed to divide then the only relief that one can claim from the other is an action for specific performance in terms of that agreement. Secondly, if there is a refusal on the part of one of the co-owners to divide then the other co-owner can go to Court and ask the Court to order the other to partition. Again, if the parties agree that there is to be a partition but the parties cannot agree as to the method or mode of partition, the Court is asked to settle the mode in which the property is to be divided”
(Ntuli v Ntuli, 1946 T.P.D. 181 at p.184, per Barry, J.P.)”
[10] In casu, the parties have failed to implement the terms of their settlement agreement and applicant has come to this court to ask for a settlement of the mode of which the property is to be divided.
[11] It is common cause that the immovable property belongs to both parties. The divorce was finalised on 24 May 2010. It is common cause further that the parties have been living apart since 2008, some five years ago. The one party has during that period enjoyed occupation of the immovable property while applicant has had to look for alternative accommodation. This situation is not equitable as respondent does not proposes more rights than the applicant.
[12] Counsel for applicant has asked for costs to be paid by the respondent whilst respondent’s counsel argues to the contrary. If applicant had merely applied for the division of the joint estate and the respondent opposed, I would not have hesitated in awarding costs against her.
The applicant has made certain allegations of respondent having made profit by renting the property out. Respondent denies these allegations and the only way she could bring her side of the story was by filing opposing papers. Moreover one has to bear in mind that respondent may very well have expenses to claim for preserving the property over the years. In any event these are matters to be addressed and resolved by the liquidator.
In my view, costs must be paid out of the proceeds of sale of the property.
[13] In the result, the following order is made:
13.1. Having read the papers, having listened to counsel and having considered the matter, I am satisfied that applicant has made out a case for the relief sought and an order is granted in terms of prayers 1,2,,4, and 5 of the Notice of Motion.
13.2. Costs to be paid out of the proceeds of the sale of the immovable property.
S.A.M BAQWA
(JUDGE OF THE HIGH COURT)
Counsel for the Applicant: Adv M.L Haskins SC
Instructed by: Shapiro and Ledwaba INC
Counsel for the respondent:
Instructed by: Ehlers Fakude INC
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