CG v AG and Another (1078/2019) [2020] ZAECPEHC 12; 2020 (6) SA 487 (ECP) (5 May 2020)

CG v AG and Another (1078/2019) [2020] ZAECPEHC 12; 2020 (6) SA 487 (ECP) (5 May 2020)

The court held that the applicant, as a co-owner, is entitled to demand partition of the property under the actio communi dividundo. The settlement agreement, although made an order of court, does not create perpetual co-ownership or grant the first respondent an unfettered right to refuse sale indefinitely. The wording of clause 11.2 was interpreted to mean that the property would be sold at some point and the proceeds divided, not that sale could be withheld in perpetuity. The first respondent's refusal to agree to sale was found to be unreasonable and not exercised arbitrio bona viri. The right to reside rent-free was not considered a maintenance order subject to variation only under...

Citation
[2020] ZAECPEHC 12
Parties
Applicant: C[…] G[…]; Respondent: A[…] E[…] G[…]; Respondent: ABSA Bank Limited
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
5 May 2020
Case Number
1078/2019
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application granted; joint ownership terminated and property to be sold with proceeds divided equally.
Judges
Roberson
Legal Topics
Actio Communi Dividundo, Partition of Property, Interpretation of Settlement Agreement, Maintenance Orders, Variation of Court Orders
Land and Property Civil Procedure Actio Communi Dividundo Partition of Property Interpretation of Settlement Agreement Maintenance Orders Variation of Court Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

C[…] G[…]

Applicant

A[…] E[…] G[…]

Respondent

ABSA Bank Limited

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to terminate joint ownership of the immovable property under the actio communi dividundo.
  2. 2 Whether the terms of the divorce settlement agreement, made an order of court, preclude partition or sale of the property without mutual consent.
  3. 3 Whether the right to reside rent-free constitutes a maintenance order subject to variation only under the Divorce Act.

Ratio Decidendi

The court held that the applicant, as a co-owner, is entitled to demand partition of the property under the actio communi dividundo. The settlement agreement, although made an order of court, does not create perpetual co-ownership or grant the first respondent an unfettered right to refuse sale indefinitely. The wording of clause 11.2 was interpreted to mean that the property would be sold at some point and the proceeds divided, not that sale could be withheld in perpetuity. The first respondent's refusal to agree to sale was found to be unreasonable and not exercised arbitrio bona viri. The right to reside rent-free was not considered a maintenance order subject to variation only under...

Court Disposition

Application granted; joint ownership terminated and property to be sold with proceeds divided equally.

Orders

  • It is declared that joint ownership of the property is terminated under the actio communi dividundo.
  • If the parties do not reach written agreement within one month, Mr Mark Rossouw is appointed as liquidator.