D.F.S v M.N.S (55065/21) [2022] ZAGPPHC 43 (11 January 2022)
- Citation
- [2022] ZAGPPHC 43
- Status
- Order
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Makhoba
- Case number
- 55065/21
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Makhoba
- Case number
- 55065/21
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the existing settlement agreement was no longer workable and that a clear mechanism was required to terminate joint ownership of the immovable property. The applicant was afforded the opportunity to buy out the respondent's share within three months, failing which the respondent would have a similar opportunity. If neither party provided the required guarantees, the property would be sold on the open market or by auction. The respondent was interdicted from interfering with the marketing and sale process. The court ordered the respondent to pay the costs of the application, finding that their conduct necessitated the application.
Court disposition
Application granted; settlement agreement varied; interdict issued; costs awarded against respondent.
Orders
- Clause 3.1 of the Settlement Agreement is varied in toto as set out in the order.
- Applicant is afforded three months to buy respondent's half share in the immovable property, subject to provision of guarantees.
- If applicant fails, respondent is afforded three months to buy applicant's half share, subject to provision of guarantees.
- If neither party provides guarantees, property to be sold on open market for six months; if not sold, to be auctioned.
- Both parties must sign all documentation necessary for transfer; sheriff authorized to sign if either party defaults.
- Net proceeds of sale to be divided between the parties.
- Respondent is interdicted from interfering with marketing or restricting access to the property.
- Respondent to pay costs of the application.
02
Material facts
Parties
D.F.S
Applicant Counsel: M CoetzeeM.N.S
RespondentAmounts and remedies
- Estimated Value of Immovable Property: ZAR 640,000
03
Procedural history
Posture
Variation Application / Order Granted After Written Submissions
04
Questions and positions
Legal issues
- 01
Whether Clause 3.1 of the Settlement Agreement should be varied to provide for the termination of joint ownership of the immovable property.
- 02
Whether the applicant or respondent should be afforded the opportunity to buy out the other's share in the property.
- 03
Whether the respondent should be interdicted from interfering with the marketing and sale of the property.
- 04
Who should bear the costs of the application.
Party arguments
- Applicant
- The applicant argued that the existing settlement agreement was unworkable and required variation to allow for the termination of joint ownership of the immovable property. The applicant sought a mechanism for either party to buy out the other's share, failing which the property should be sold on the open market or by auction. The applicant further requested an interdict to prevent the respondent from interfering with the marketing and sale process, and sought a costs order against the respondent.
- Respondent
- The respondent opposed the variation, contending that the current arrangement should remain and that the applicant's proposals were prejudicial. The respondent denied interfering with the marketing of the property and argued that no costs order should be made against them.
05
Court’s reasoning
Legal principles
- 01
Settlement Agreement made order of court on 17 February 2020
A court may vary a settlement agreement made an order of court if circumstances justify such variation and the interests of justice require it.
- 02
Common law principles of property co-ownership
Joint ownership of immovable property may be terminated by agreement or, failing agreement, by sale and division of proceeds.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the existing settlement agreement was no longer workable and that a clear mechanism was required to terminate joint ownership of the immovable property. The applicant was afforded the opportunity to buy out the respondent's share within three months, failing which the respondent would have a similar opportunity. If neither party provided the required guarantees, the property would be sold on the open market or by auction. The respondent was interdicted from interfering with the marketing and sale process. The court ordered the respondent to pay the costs of the application, finding that their conduct necessitated the application.
Obiter and limits
- The use of electronic hearings and orders during the National State of Disaster ensures continued access to justice.
- Parties to settlement agreements must act in good faith and facilitate the implementation of court orders.
Court disposition
Application granted; settlement agreement varied; interdict issued; costs awarded against respondent.
- Clause 3.1 of the Settlement Agreement is varied in toto as set out in the order.
- Applicant is afforded three months to buy respondent's half share in the immovable property, subject to provision of guarantees.
- If applicant fails, respondent is afforded three months to buy applicant's half share, subject to provision of guarantees.
- If neither party provides guarantees, property to be sold on open market for six months; if not sold, to be auctioned.
- Both parties must sign all documentation necessary for transfer; sheriff authorized to sign if either party defaults.
- Net proceeds of sale to be divided between the parties.
- Respondent is interdicted from interfering with marketing or restricting access to the property.
- Respondent to pay costs of the application.
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
Order
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 ARICA
GAUTENG DIVISION, PRETORIA
On this 11th day of January 2022
Before the Honourable Justice Makhoba J
Via Videoconferencing
Order granted electronically in accordance with the directives regarding special arrangements during the National State of Disaster
CASE NO: 55065/21
In the matter between
D[....] F[....] S[....]
APPLICANT
ID: [....]
And
M[....] N[....] S[....]
RESPONDENT
ORDER
Having perused the documents filed on record as well as the written submissions and argument on behalf of the Applicant the following order is electronically granted:
1. Variation of Clause 3.1 in toto of the Settlement Agreement, that was made an order of Court on 17 February 2020, signed by the parties on 17 September 2019 under case number: 76642/2019. Clause 3.1 to be substituted in toto with the following:
"3.1 The parties are joint registered owner of the immovable property described as 9727 Unit 17, Ga-Rankuwa, GAUTENG herein after referred to as "the immovable property". The joint ownership to be terminated between the parties, as follows:
3.1.1 The estimated value of the immovable property is R 640:-00.0 and each party is entitled to the half share in the net proceeds of the immovable property.
3.1.2 The Plaintiff is still in occupation in the immovable property and until the immovable property is registered in the new owner’s name, the Plaintiff remains liable for the maintenance and upkeep of the immovable property, water and electricity, rates and taxes, comprehensive insurance premium in respect of the immovable property.
3.1.3 The Plaintiff is afforded a period 3 months to buy the Defendant's half share in the immovable property, subject thereto that the Plaintiff provide guarantees within 3 months from the date of the granting of this order.
3.1.4 If the Plaintiff fails to provide the guarantees within 3 months, the Defendant is afforded 3 months to buy the Plaintiff's half share in the immovable property, subject thereto that the Defendant provides a guarantee within 3 months from the period as indicated in clause 3.1.3.
3.1.5 In the event that the Defendant fails to provide the guarantees as set pit om clause 3.1.4, the immovable property will be placed on the open market for 6 months to be sold;
3.1.6 In the event that the immovable property could not be sold on the open market in the 6 month period, the immovable property will be sold on auction for the highest possible bid with a reserve price equal to the sum of the total liabilities as follows:
3.1.6.1. The full outstanding amount due to the total authorities;
3.1.6.2. Auctioneers commissions;
3.1.6.3. The cancellation costs in respect of the mortgage bond registered over the immovable property.
3.1.7 Both parties undertake to sign all documentation necessary to effect transfer and registration of the immovable property into the name of the new owner on written demand, should either party fail to sign the necessary document within 7 days of written demand, the sheriff of the High Court of South Africa who has jurisdiction is authorized to sign such documentation on behalf of the defaulting party's costs.
3.1.8 In the event of the sale of the immovable property, whether on open market and/or auction, the nett proceeds to be divided between the parties."
2. The Respondent is interdicted and prohibited to interfere and/or sabotage the marketing of the immovable property, that the Respondent is interdicted from restricting access to the immovable property from any estate agents and/or any potential buyers.
3. The Respondent is ordered to pay the costs of this application.
BY
ORDER
REGISTRAR
Counsel for the Applicant: M Coetzee
076 813 8003
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