Salaman v Salaman and Another (9058/2007) [2008] ZAKZHC 61 (29 August 2008)

IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

9058/2007

AMINA SALAMAN APPLICANT

versus

ABDIE SALAMAN FIRST RESPONDENT

NEDBANK LIMITED SECOND RESPONDENT

RESERVED JUDGMENT

Delivered on: 29 August 2008

NTSHANGASE, J

[1] In this application the applicant seeks the following relief:

“(a) That the first respondent be and is hereby ordered forthwith to sell the immovable property described as Erf 461 Stonebridge, Phoenix, KwaZulu-Natal also described as 275 Cardinal Road, Stonebridge, Phoenix, KwaZulu-Natal forthwith by public auction and to the highest bidder;

Alternatively and in the event of the first respondent failing to conduct such sale within thirty (30) days of the grant of this order, that the applicant be and is hereby authorised to appoint an auctioneer and sell the aforesaid property by public auction; and in such event the sheriff of this Honourable Court be authorised to sign all documentation to give effect to the sale and transfer to the purchaser;

(b) That the nett proceeds emanating from the sale of the

aforesaid property be divided equally between the parties;

(c) That the first respondent pay the costs of this application

from his half share in the joint estate;

(d) Any other relief that may be granted by this Honourable

Court.”

[2] The second respondent does not appose the application. Reference to “respondent” shall hereafter be to the first respondent.

[3] The respondent raised two objections in limine, one based on non-joinder of the sheriff as a party to the proceedings and that the applicant claims “a debt owed arising from a joint estate that had been dissolved by court in 1997, and that “the applicant’s right to claim in respect of that debt had prescribed as at the 12th August 2000.”

[4] In regard to the first point in limine it was contended on behalf of the respondent that the application is totally defective by reason of non-joinder of the sheriff “when from a cursory glance it would appear that the applicant seeks certain relief from the sheriff.”

[5] No relief is sought from the sheriff. The applicant seeks an order authorising the sheriff “to sign all documentation to give effect to the sale and transfer to the purchaser” in the event of the court granting the alternative relief sought by the applicant. No more is required of the sheriff than performance of the acts assigned by section 36 of the Supreme Court Act 59 of 1959 to the sheriff. Mr Mohamed, who appeared for the respondent, argued that what was sought was an order compelling the sheriff to sell by public auction a property where such property was not subject to an attachment or execution in terms of the Rules of Court and that although the sheriff is authorised to perform certain acts on behalf of or failing compliance by a party to proceedings, in this matter the distinction “is specifically in respect of whether or not the sheriff opens himself to liability.”

He however conceded that the sheriff would attract liability where he acts unreasonably and thus oversteps the mark. In Ex Parte Kaefer Insulation (Pty) Ltd: in re Kaefer Insulation (Pty) Ltd v Sharneck1 relied upon by the respondent the judgment creditor’s application for an order “authorising the sheriff or his deputy sheriff to break and forcibly enter premises …” was dismissed as an application for “an order protecting the deputy sheriff from possible unlawful conduct,” which is distinguishable from the present case.

[6] The right to claim joinder is very limited. In that regard, in Kock & Schmidt v Alma Modehuis [Edms.] Bpk2 Steyn CJ stated:

“So ʼn verpligting tot voeging is erken by gesamentlike eienaars, gesamentlike kontrakterende partye en vennote, op grond van gesamentlike vermoënsbelang [Morgan and Another v Salisbury Municipality, 1935 A.D. 167] en ook waar die betrokke party ʼn direkte en wesentlike belang het by die uitslag van die geding [Collin v Toffie, 1944 A.D. 456 op 464; Home Sites (Pty) Ltd v Senekal, 1948(3) SA 514 (A.D.) op bl. 521]. In die algemeen genome moet die beswaar van nie – voeging binne die bestek van genoemde kategorieё gebring kan word, want die reg om so ʼn beswaar te opper is in ons regspraktyk ʼn heel beperkte (Sheshe v Vereeniging Municipality, 1951(3) SA 661 (A.D.) op bl. 666).” [my emphasis]

[7] In Henri Viljoen (Pty) Ltd v Awerbuch Brothers3 it is stated that –

“the direct interest” required by the Appellate Division decision must be an interest in the right which is the subject matter of the litigation and is not merely a financial interest which is only an indirect interest in such litigation.”

The sheriff has no legal interest in the dispute between the applicant and the respondent; nor is the order prayed one which cannot be sustained and carried into effect without necessarily prejudicing the interest of the sheriff. Accordingly, in my view, the point in limine premised on non-joinder of the sheriff must fail.

[8] In regard to the second point in limine the contention that “the applicant is claiming a debt owed arising from a joint estate that had been dissolved by court in 1997”, and that the applicant’s claim had prescribed is based on the fact of the dissolution of the parties’ marriage on 12 August 1997.

[9] It is convenient to deal first with the question whether the applicant claims “a debt owed.” The applicant alleges that the respondent was under obligation to sell the property and it was argued that such obligation fell within the meaning of a “debt” in the context of section 10(1) of the Prescription Act 68 of 1969. It is, as was stated in Desai N.O. v Desai and others 4 assigned a wide and general meaning which includes an obligation to do something or refrain from doing something.

[10] In Electricity Supply Commission v Stewarts and Lloyds of South Africa5 the court approved of the following statement of Kotzê J in Leviton & Son v De Klerk’s Trustee6:

“I am disposed to take the word debt in a wide and general sense as denoting whatever is due – debitum – from any obligation.”

[11] The respondent has denied, and I accept such denial, that there existed an obligation on the respondent to sell the property. Although the applicant states in her replying affidavit that there is “a glaring omission in the first respondent’s answering affidavit to mention what steps or attempts he made to pay (her) or sell the property,” she herself has not disputed that one year after the divorce she and the respondent agreed that the property would be sold and, to that end they both approached Fathima Ameer and Associates to attend to the sale as they had information that a prospective buyer was prepared to pay R150 000 for the property; and that she refused to sign the purchase and sale agreement.

[12] No obligation and thus a “debt” would have arisen for prescription to take effect and to non-suit her in a claim in which she asserts her co-ownership right over the property. Contrary to the contention that the “joint estate … had been dissolved by court in 1997”, the decree of divorce which dissolved the parties’ marriage did not dissolve co-ownership over the property. Each party in this matter, as co-owner, has an undivided share in the property and a right to share it.

[13] The case of Radebe v Government of the Republic of South Africa and Others7 relied upon by the respondent is also distinguishable as, in that case –

“(t)he applicant lost his real rights in the land at the latest when transfer of the land to the State occurred on 26 February 1979.”

The applicant, Radebe sought “redelivery” of the land which is not the case in the present matter where the applicant has retained her undivided share in the property as co-owner thereof with the respondent. On the facts of this case I find no basis upon which it can properly be held that either party can be said to have lost their real right over their undivided share in the property. And contrary to what the position was in Radebe supra, applicant has at no stage been deprived of her ownership. The point in limine premised on prescription must also accordingly fail.

[14] Contrary to the respondent’s contention, there is, in my view no dispute of fact relevant to the present proceedings. What has in fact occupied the parties as ‘disputes of fact’ would largely be of relevance in the actual process of subdivision of the property.

[15] Reverting to the applicant’s claim I must say that she herself earlier thwarted attempts to sell the property. I find no basis for the applicant’s entitlement to either the main or the alternative relief sought; nor do I find a basis on the facts of this case upon which the court would competently compel the respondent to sell the common property or to authorise the applicant to unilaterally appoint an auctioneer for the property to be sold. As has been indicated earlier, the parties each have an undivided share in the property. No partner to co-owned property is entitled to arrogate to himself or herself the sole right of liquidating the co-owned estate.

[16] What is evident in this matter is that the parties are unable to reach agreement on the subdivision of the property. In the event of a marriage in community being terminated by a decree of divorce, and the spouses failing to agree as to a division, the court may appoint curators or liquidators to divide the property. In Gillingham v Gillingham8 Innes CJ stated:

“The law governing this matter seems to me perfectly clear. When two persons are married in community of property a universal partnership in all goods is established between them. When a court of competent jurisdiction grants a decree of divorce that partnership ceases. The question then arises, who is to administer what was originally the joint property, in respect of which both parties continue to have rights? As a general rule there is no practical difficulty, because the parties agree upon a division of the estate, and generally the husband remains in possession pending such division. But where they do not agree the duty devolves upon the court to divide the estate, and the court has power to appoint some person to effect the division on its behalf. Under the general powers which the court has to appoint curators it may nominate and empower someone (whether he is called liquidator, receiver, or curator … perhaps curator is the better word) to collect, realise, and divide the estate. And that that has been the practice in South African courts is clear.” [my emphasis]

[17] I think a co-owner who desires partition of co-owned property would, unless advised otherwise, institute action for partition for the court to decide whether or not it will appoint a person on its behalf to effect the partition.

[18] The applicant, for the foregoing reasons, is unsuccessful. This result has not followed mainly on the success of the respondent in his case. In the circumstances a fair order will be that there be no order as to costs of the application.

I make the following order:

The application is dismissed.

No order is made as to the costs of the application.

Date of Hearing: 8 May 2008

Date of Judgment: 29 August 2008

Counsel for the applicant: Mr K Maharaj

Instructed by: K Maharaj Incorporated

Counsel for the first respondent: Adv R Mohamed

Instructed by: Dos Santos & Moola Attorneys

1 1984(3) SA 533 (W)

2 1959(3) SA 308 at 318 E-G

3 1953(2) SA 151 (O) at 169

4 1996(1) SA 141 [SCA] at 146I-147a

5 1981(3) SA 340 [A] at 344F-G

6 1914 C.P.D. 685 at 691 in fiN

7 1995(3) SA 787 (N) at 803 D-E

8 1904 TS 609 at 613