Abandoning the spouse, abandoning the house? Abandonment of co-ownership shares in immovable property [Discussion of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)]

• Author: Cramer, R.
• DOI: https://doi.org/10.47348/SLR/2022/i3a10
• Published date: 27 October 2022
• Date: 27 October 2022
• Citation: (2022) 33 Stell LR 548
• Pages: 548-559

548

https://do i.org/10.473 48/S LR/20 22/i 3a10

ABANDONING THE SPOUSE, ABANDONING

THE HOUSE? ABANDONMENT OF CO-

OWNERSHIP SHARES IN IMMOVABLE

PROPERTY [DISCUSSION OF M v M

(10751/2000) [2020] ZAGPPHC 155

(20 MARCH 2020)]

Richard Cramer*

BA(Hons) LLB LLM PhD (UCT)

Post-doctoral Fellow: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty

of Law, University of Cape Town**

Abstract

The case of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020)

(“M v M”) is novel in its nding that the abandonment of immovable property

is possible in South African law. It is also novel in nding that the requisite

intention to abandon a co-ownership share in immovable property could be

inferred from the facts of the case. Past case law concerning the abandonment

of immovable property always failed to make a nding of abandonment as the

requisite intention could never be established. This approach was consistent

with our courts’ unwillingness to infer an intention to abandon valuable

property in the absence of clear intention to do so.

This case note seeks to critique the decision of the court in M v M in light

of a legal framework in which the abandonment of landownership does not

appear possible given the principle of publicity. It further seeks to ask if there

were other avenues available to the court to reach what was an undeniably just

outcome on the set of facts before the court.

Keywords: Abandonment; ownership; co-ownership; immovable property;

principle of publicity

* The fina ncial support of the Na tional Research Foun dation of South Afr ica, which enabled t his research,

is gratefu lly acknowledge d Opinions expressed here a re not attr ibutable to that i nstitution Further

thanks a re owed to my colleagu es, the member s of Professor Moster t’s postgradu ate writi ng group,

for commenti ng on a draft version of this co ntribution, and par ticularly to Ms Hanna h Massyn for her

suggestion for t he title of this case n ote Finally, I must ext end my thank s to the reviewers of th is case note

for their valua ble input

** The South Af rican Resea rch Chair: Mi neral Law in Af rica is fund ed by the South Af rican Nationa l

Depart ment of Science and Technology, adm inistered by the Natio nal Research Foundat ion, and hosted

by the Universit y of Cape Town The views expr essed in this a rticle are thos e of the author and should n ot

be attrib uted to any of these ins titutions

(2022) 33 Stell LR 548

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