Marathon Earthmovers CC v Dos Santos and Another (20546/2005) [2012] ZAGPJHC 221 (24 August 2012)

Marathon Earthmovers CC v Dos Santos and Another (20546/2005) [2012] ZAGPJHC 221 (24 August 2012)

The court held that ownership of immovable property does not pass merely by virtue of a divorce settlement agreement or a court order; registration in the Deeds Registry is required for transfer of ownership. Since the first respondent remains the registered owner of the half share in the property, the applicant is entitled to execute against it. The Wiggle case was distinguished on the facts, as the parties in the present matter were married out of community of property and the wording of the divorce order did not transfer ownership but only required the first respondent to transfer his share. Accordingly, the applicant's application for special executability and a writ of execution was...

Citation
[2012] ZAGPJHC 221
Parties
Applicant: Marathon Earthmovers CC; Respondent: Avelino Vasco Dos Santos; Respondent: Deborah Dos Santos
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 August 2012
Case Number
20546/2005
Procedural Posture
Civil Application / Application for Special Executability Order and Writ of Execution
Outcome
Application granted. The property is declared specially executable and a writ of execution is issued. Costs awarded against both respondents jointly and severally.
Judges
Willis
Legal Topics
Special Executability, Writ of Execution, Transfer of Ownership, Division of Common Property
Civil Procedure Land and Property Special Executability Writ of Execution Transfer of Ownership Division of Common Property

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Parties

Marathon Earthmovers CC

Applicant

Avelino Vasco Dos Santos

Respondent

Deborah Dos Santos

Respondent

Procedural Posture

Civil Application / Application for Special Executability Order and Writ of Execution

Legal Issues

  1. 1 Whether the half share in the immovable property registered in the first respondent's name is specially executable despite a divorce settlement agreement.
  2. 2 Whether ownership of the property passed to the second respondent by virtue of the divorce order without registration.
  3. 3 Whether the applicant is entitled to a writ of execution against the property.

Ratio Decidendi

The court held that ownership of immovable property does not pass merely by virtue of a divorce settlement agreement or a court order; registration in the Deeds Registry is required for transfer of ownership. Since the first respondent remains the registered owner of the half share in the property, the applicant is entitled to execute against it. The Wiggle case was distinguished on the facts, as the parties in the present matter were married out of community of property and the wording of the divorce order did not transfer ownership but only required the first respondent to transfer his share. Accordingly, the applicant's application for special executability and a writ of execution was...

Court Disposition

Application granted. The property is declared specially executable and a writ of execution is issued. Costs awarded against both respondents jointly and severally.

Orders

  • The half share of erf 1153 Ridgeway Extension 5 Johannesburg Gauteng registered in the first respondent's name is declared specially executable.
  • A writ of execution is issued against the property.