Lesenya v Ngwenya (61306/2014) [2018] ZAGPPHC 502 (6 July 2018)

Lesenya v Ngwenya (61306/2014) [2018] ZAGPPHC 502 (6 July 2018)

The court held that the applicant was not entitled to proceed by way of application for the termination of joint ownership and appointment of a liquidator. The correct procedure is by way of action, as prescribed by the actio communi dividundo. The parties were never married and thus no joint estate existed, making the appointment of a liquidator inappropriate. The application was dismissed, but the parties retain the right to approach the court by way of action for relief based on actio communi dividundo. Costs were awarded against the applicant, following the normal rule that costs follow the outcome.

Citation
[2018] ZAGPPHC 502
Parties
Applicant: Radikgomo Petrus Lesenya; Respondent: Kedibone Anna Ngwenya (Macheke)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 July 2018
Case Number
61306/2014
Procedural Posture
Urgent Application / Application for Appointment of Liquidator and Division of Joint Property
Outcome
Application dismissed with costs.
Judges
Maakane
Legal Topics
Co Ownership, Actio Communi Dividundo, Liquidation of Joint Property, Motion Vs Action Procedure
Land and Property Civil Procedure Co Ownership Actio Communi Dividundo Liquidation of Joint Property Motion Vs Action Procedure

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Parties

Radikgomo Petrus Lesenya

Applicant

Kedibone Anna Ngwenya (Macheke)

Respondent

Procedural Posture

Urgent Application / Application for Appointment of Liquidator and Division of Joint Property

Legal Issues

  1. 1 Whether the applicant was entitled to seek termination of joint ownership and appointment of a liquidator by way of application rather than action.
  2. 2 Whether a joint estate existed between the parties justifying the appointment of a liquidator.
  3. 3 Whether a settlement agreement regarding division of the property had been reached between the parties.

Ratio Decidendi

The court held that the applicant was not entitled to proceed by way of application for the termination of joint ownership and appointment of a liquidator. The correct procedure is by way of action, as prescribed by the actio communi dividundo. The parties were never married and thus no joint estate existed, making the appointment of a liquidator inappropriate. The application was dismissed, but the parties retain the right to approach the court by way of action for relief based on actio communi dividundo. Costs were awarded against the applicant, following the normal rule that costs follow the outcome.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.