E.T.N v H.E.T (66959/2016) [2018] ZAGPPHC 492 (5 April 2018)

E.T.N v H.E.T (66959/2016) [2018] ZAGPPHC 492 (5 April 2018)

The court found that the parties jointly purchased the property with the intention of equal ownership. The respondent failed to comply with the alleged agreement to pay R24,000 and remove the applicant from the bond, and there was no evidence that the applicant accepted this as full settlement of her share. The court applied the principles of actio communi dividundo, holding that neither party is obliged to remain a co-owner against their will. The property should be sold, and the proceeds divided, with the applicant's valuation prevailing if the parties cannot agree. The respondent is liable for the costs of the application.

Citation
[2018] ZAGPPHC 492
Parties
Applicant: E T N; Respondent: H E T
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 April 2018
Case Number
66959/2016
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. The property is to be sold and the proceeds divided between the parties. The respondent is ordered to pay the costs.
Judges
Hattingh AJ
Legal Topics
Co Ownership, Actio Communi Dividundo, Division of Joint Property, Praestationes Personales
Land and Property Civil Procedure Co Ownership Actio Communi Dividundo Division of Joint Property Praestationes Personales

Case Brief

Summary, issues, holding and outcome

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Parties

E T N

Applicant

H E T

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to division of the jointly owned immovable property.
  2. 2 Whether the respondent's alleged agreement to pay R24,000 to the applicant extinguished her claim to a 50% share.
  3. 3 What is the appropriate remedy for co-owners who cannot agree on the division of property.

Ratio Decidendi

The court found that the parties jointly purchased the property with the intention of equal ownership. The respondent failed to comply with the alleged agreement to pay R24,000 and remove the applicant from the bond, and there was no evidence that the applicant accepted this as full settlement of her share. The court applied the principles of actio communi dividundo, holding that neither party is obliged to remain a co-owner against their will. The property should be sold, and the proceeds divided, with the applicant's valuation prevailing if the parties cannot agree. The respondent is liable for the costs of the application.

Court Disposition

Application granted. The property is to be sold and the proceeds divided between the parties. The respondent is ordered to pay the costs.

Orders

  • Both applicant and respondent are entitled to appoint an estate agent to sell the immovable property, with the price to be agreed within 30 days, failing which the applicant's valuation shall apply.
  • If the property is not sold on the open market within 60 days, it shall be sold by public auction with a reserve price equal to the debt owed.