Schroër v Schroër

• Jurisdiction: South Africa
• Judge: Miller J
• Judgment Date: 09 December 2008
• Docket Number: 1776/2008
• Court: South Eastern Cape Local Division
• Hearing Date: 27 November 2008
• Citation: 2009 JDR 0683 (SE)

Miller J:

[1] The applicant seeks an order that the fixed property, being Erf 1952 Theescombe, (the property) be sold by public auction, without reserve, by the Sheriff of the Court, alternatively by a liquidator appointed by the Court.

[2] The applicant and the respondent were formerly married to each other in community of property. Their marriage was terminated by a decree of divorce issued by this Court on 13 June 2006, which decree also

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Miller J

incorporated a deed of settlement that had been entered into by the parties.

[3] In terms of such deed of settlement it was agreed, inter alia, that the property be sold by them "as soon as this is possible" and that the respondent will then, on transfer of the property to its purchaser, be paid one half of the nett proceeds of the sale of the property plus an additional amount of R128000.00.

[4] After the divorce the applicant, who has since remarried, continued to and still resides in the property. He has spent a substantial amount on maintaining and improving the property. The respondent left the country and went to reside in Germany. She has, however, returned to South Africa and will be residing here for an indefinite period.

[5] The property is 1,792 hectares in extent. It is improved with a double storey thatch roofed house with a floor area of 450 square metres, comprising of five bedrooms, three bathrooms, a scullery, four garages, two barbecue areas, an underground shooting range and a swimming pool. There is also a separate self-contained cottage with a floor area of 50 square metres. The property is fenced and is divided into three camps with automatic water supply for livestock. It also has a 100 square metre playground. The property overlooks Sardinia Bay. The municipal valuation of the property is R3 440 000.00.

[6] The applicant has endeavoured to sell the property: Offers of R3 800 000.00, R3 200 000.00 and R3 100 000.00 were received. None of these offers resulted in a sale as they were all subject to the suspensive condition that the purchaser acquires a loan in a certain amount secured

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by a mortgage bond. None of such conditions were met. The applicant ascribes his lack of success in selling the property to the rapidly dropping property market due to the steady increase of interest rates and introduction of the National Credit Act.

[7] The latest offer for the property was for R2 500 000.00. Such offer was not subject to the...