S.A.N (born C) v J.E.N (CA&R EL 157/03, 356/0) [2009] ZAECGHC 82 (26 November 2009)

S.A.N (born C) v J.E.N (CA&R EL 157/03, 356/0) [2009] ZAECGHC 82 (26 November 2009)

The court found that the two documents relied upon by the respondent did not constitute binding legal agreements capable of effecting a lawful transfer of immovable property, as they failed to comply with the requirements of the Alienation of Land Act and lacked material terms. The applicant was not bound to sign over her share of the property. Given the lack of trust and impracticality of the court dividing the estate directly, the appointment of a receiver was appropriate. The respondent's opposition was not mala fide, and there was no clear evidence of coercion; thus, costs were awarded on a party and party scale, not on an attorney and own client basis.

Citation
[2009] ZAECGHC 82
Parties
Applicant: S A N (born C); Respondent: J E N
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
26 November 2009
Case Number
CA&R EL 157/03, 356/0
Procedural Posture
Civil Application / Application for Appointment of Receiver Post Divorce
Outcome
Application granted: Receiver appointed to effect division of joint estate; costs awarded against respondent on party and party scale.
Judges
Revelas
Legal Topics
Division of Joint Estate, Appointment of Receiver, Alienation of Land Act, Costs Order
Family and Children Civil Procedure Division of Joint Estate Appointment of Receiver Alienation of Land Act Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

S A N (born C)

Applicant

J E N

Respondent

Procedural Posture

Civil Application / Application for Appointment of Receiver Post Divorce

Legal Issues

  1. 1 Whether the applicant is bound by alleged agreements to transfer her share of the immovable property to the respondent.
  2. 2 Whether a receiver should be appointed to effect division of the joint estate.
  3. 3 Whether the respondent is liable for costs and on what scale.

Ratio Decidendi

The court found that the two documents relied upon by the respondent did not constitute binding legal agreements capable of effecting a lawful transfer of immovable property, as they failed to comply with the requirements of the Alienation of Land Act and lacked material terms. The applicant was not bound to sign over her share of the property. Given the lack of trust and impracticality of the court dividing the estate directly, the appointment of a receiver was appropriate. The respondent's opposition was not mala fide, and there was no clear evidence of coercion; thus, costs were awarded on a party and party scale, not on an attorney and own client basis.

Court Disposition

Application granted: Receiver appointed to effect division of joint estate; costs awarded against respondent on party and party scale.

Orders

  • Mr Donovan Emslie of 32 Tecoma Street, Berea, East London is appointed as Receiver to effect division of the immovable property and pension of the joint estate.
  • The Receiver is empowered to obtain appraisals, determine values, compel attendance, interrogate parties, apply to court for directions, prepare a final account, and divide proceeds in accordance with law and the divorce order.