Fourie v Honeyborne (63887/2015) [2017] ZAGPPHC 497 (4 August 2017)

Fourie v Honeyborne (63887/2015) [2017] ZAGPPHC 497 (4 August 2017)

The court found that the applicant had established joint ownership and the respondent's refusal to agree to termination or the method thereof. The respondent's objections regarding the commissioning of the affidavit were dismissed, as the defect was not material and could be condoned. The existence of a lease agreement and option to purchase did not preclude the termination of co-ownership, as the doctrine of 'huur gaat voor koop' ensures the lessee's protection. Since the parties could not agree on division, the court exercised its discretion to appoint a receiver to investigate contributions and divide the property equitably. Each party was ordered to pay its own costs.

Citation
[2017] ZAGPPHC 497
Parties
Plaintiff: Sophia Maria Fransina Fourie; Defendant: Inge Honeyborne
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 August 2017
Case Number
63887/2015
Procedural Posture
Civil Application / Final Determination
Outcome
Application granted in part; receiver to be appointed to investigate contributions and divide the property; each party to pay its own costs.
Judges
T J Raulinga
Legal Topics
Co Ownership Termination, Action Communis Dividundo, Partition of Property, Lease and Option to Purchase
Land and Property Civil Procedure Co Ownership Termination Action Communis Dividundo Partition of Property Lease and Option to Purchase

Case Brief

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Parties

Sophia Maria Fransina Fourie

Plaintiff

Inge Honeyborne

Defendant

Procedural Posture

Civil Application / Final Determination

Legal Issues

  1. 1 Whether joint ownership of the property should be terminated.
  2. 2 Whether the applicant's founding affidavit is defective due to improper commissioning.
  3. 3 Whether the lease agreement and option to purchase prevent termination of co-ownership.

Ratio Decidendi

The court found that the applicant had established joint ownership and the respondent's refusal to agree to termination or the method thereof. The respondent's objections regarding the commissioning of the affidavit were dismissed, as the defect was not material and could be condoned. The existence of a lease agreement and option to purchase did not preclude the termination of co-ownership, as the doctrine of 'huur gaat voor koop' ensures the lessee's protection. Since the parties could not agree on division, the court exercised its discretion to appoint a receiver to investigate contributions and divide the property equitably. Each party was ordered to pay its own costs.

Court Disposition

Application granted in part; receiver to be appointed to investigate contributions and divide the property; each party to pay its own costs.

Orders

  • A receiver is to be appointed by the legal representatives of the parties to investigate each party's contribution and to divide the property accordingly.
  • Each party to pay its own costs.