Schulz v Schulz

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mashile J
• Judgment Date: 15 May 2023
• Citation: 2023 JDR 1473 (MN)
• Hearing Date: 15 May 2023
• Docket Number: 4165/2022
• Court: Mpumalanga Division, Mbombela

Mashile J:

INTRODUCTION:

[1]

During divorce proceedings on 22 February 2019 between the Applicant and Respondent ("the parties"), this Court while still functioning as Mpumalanga Circuit Court, Mbombela, granted an order of divorce incorporating a settlement agreement ("the agreement") concluded by the parties on 18 December 2018. In November 2019, the parties verbally varied the agreement. The Applicant avers that in consequence of the Respondent's contravention of the verbal agreement, he cancelled it and seeks confirmation thereof. The verbal agreement is common cause between the parties except that the Respondent now alleges that there was an additional term, which the Applicant denies.

[2]

Once cancellation of the verbal agreement is confirmed, the Applicant seeks relief that:

2.1

The Respondent be directed to sign any and all documentation necessary to give effect to the proposed sale and subsequent transfer of the immovable property, described hereunder, into the name of the prospective purchaser within 7 days of being presented with such documentation. Failing the aforesaid, the Sheriff of the High Court, Lydenburg be authorised to sign the required documentation;

2.2

The Respondent be ordered to give access to the immovable property to:

2.2.1

the draughtsman appointed by the Applicant to update the existing building plans and/or to draft new building plans depending on what might be necessary, such plans to be submitted to the Local Municipality for approval in compliance with the Thaba Chweu Local

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Municipality Spatial Planning and Land Use Management By-Laws; and/or

2.2.2

the valuer appointed by the financial institution where the prospective purchaser obtained a loan from if necessary and to give effect to the transfer of the immovable property into the name of the prospective purchaser.

FACTUAL MATRIX:

[3]

The parties were married out of community of property, with the inclusion of the accrual system. On 22 April 2015 and during the subsistence of their marriage, the parties purchased the immovable property described as:

PORTION 84 OF ERF 2530 LYDENBURG EXTENSION 1 TOWNSHIP REGISTRATION DIVISION J.T., PROVINCE OF MPUMALANGA MEASURING 990 (NINE HUNDRED AND NINETY) SQUARE METERS HELD BY DEED OF TRANSFER T3315/2016 ("the property").

[4]

The parties subsequently obtained a home loan from the Standard Bank of South Africa ("Standard Bank") to enable them to acquire the property. On 29 March 2016, Standard Bank registered a mortgage bond in its favour for an amount of R1 040 000-00 under bond number: B1500/2016. The parties are jointly and severally liable to Standard Bank for this debt and there is still an outstanding amount of approximately R929 996.07.

[5]

Clause 3 of the agreement entered into by the parties deals with the aspect of division of the parties' property and it provides that:

"DIVISION OF ASSETS: IMMOVABLE PROPERTY

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3.1

The Plaintiff has the option to buy the Defendant's 50% share in their shared immovable property situated at 5 Beer Post Street in Lydenburg at a price acceptable for the Defendant, in which instance a Deed of Sale must be drafted and signed within 30 days after the finalization of the divorce. The Plaintiff shall be liable for the mortgage payments, bills, up keep or maintenance of the property from date of signature of the Deed of Sale;

3.2

If no agreement is reached and signed within 30 days after the finalization of the divorce, the immovable property situated at 5 Beer Post Street, Lydenburg will be sold and the profit shall be divided equally between the parties. If the house is leased, the lease amount will be shared equally between the parties after all necessary payments regarding the property has been made. Both parties will jointly be liable for all mortgage payments, bills, up keep and maintenance of the immovable property until the property is sold and transferred to the third party. All amounts due in terms of this clause by either party regarding the mortgage payments, bills, up keep or maintenance of the property will be deducted from their 50% share in the immovable property;

3.3

Both parties will sign all documentation for the transfer of the said property as soon as they are requested to do so."

[6]

When the divorce order was granted, the Applicant lived in the property together with two of the parties' children. One child was still a minor and in school. The eldest child had attained majority and was attending University. The Respondent resided elsewhere with one of the parties' children who was still a minor and home-schooled at the time. The Applicant alleges that he paid the bond instalments, municipal accounts, consumption charges, insurance and maintenance in respect of the property without contribution from the Respondent.

[7]

The Applicant alleges further that this had to be the case as he lived in the property and had the benefit thereof. It was for this reason that Clause 3.1, he said, was included into the agreement. The Applicant initially continued to reside in the property after the

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lapse of the period mentioned in Clause 3.1 of the agreement and paid those expenses referred to therein. This was by agreement between the parties.

[8]

The Applicant chose not to purchase the Respondent's undivided half share in the property. As such and as per Clause 3.2 read with Clause 3.3 of the agreement, the property was to be sold. The Applicant states that he had intended to move to Mosselbay. During approximately June to August 2019, he advised the Respondent of his impending relocation.

[9]

Shortly before the Applicant could move to Mosselbay, the Respondent made a proposal to him to move into the property with their minor child an avoid selling it. The Applicant agreed on the proviso that the Respondent would pay those expenses associated with the property. When the Applicant agreed, a verbal agreement in the terms stated below was concluded. On 15 November 2019, the Applicant vacated the property. On the same day, the Respondent took occupation. Neither party still resides with the children because they have all attained majority.

[10]

The terms of the verbal agreement that was entered into during November 2019 between the parties were that:

10.1

The Respondent together with one of the parties' minor children, would reside in the property for an undetermined period;

10.2

The Respondent and the minor child would occupy the property and receive the exclusive use and benefit of the property;

10.3

The Respondent would be solely responsible for payment of:

10.3.1

the bond instalments to Standard Bank, inclusive of the insurance premium;

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10.3.2

the municipal accounts, including rates, taxes and consumption charges; and

10.3.3

all costs associated with the maintenance and up-keep of the property, as well as any other charges associated with the property.

10.4

The Respondent would be responsible for the payment of those expenses associated with the property from 1 December 2019.

[11]

The Applicant alleges that prior to moving out of the property, he had made certain that all expenses were settled up to and including 30 November 2019. This was to ensure that the Respondent and the minor child took occupation of the property without any lingering debts from the time of the Applicant's occupation. This is denied by the Respondent though.

[12]

The Applicant states that he observed all his obligations arising in terms of the verbal agreement. On 15 November 2019, he vacated the property whereupon the Respondent simultaneously took occupation. The Respondent failed to comply with the terms of the parties' verbal agreement by failing to pay:

12.1

The monthly bond instalments timeously, in full and/or at all. The total monthly bond instalment in respect of the property currently amounts to R10 969-47 per month. This amount includes the monthly bond instalment of R10 178-14 and the insurance premium of R791-33 ("the bond instalments"); and

12.2

The municipal account to the Thaba Chweu Local Municipality timeously, in full and/or at all. The municipal account is in arrears with an amount of R9 441-52 as of 31 August 2022. The property is serviced with a pre-paid electricity meter and the Respondent purchases electricity on a pre-paid basis, which purchases do not reflect on the municipal property account.

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[13]

From the Standard Bank mortgage bond statement it is evident that the Respondent would often pay less than the monthly instalment or pay nothing at all. She would then pay large sums of money to settle arrears instalments but ultimately remained in arrears. These irregular payments and constant arrears on the home loan account prompted Standard Bank to refer this account to its collections department.

[14]

The Applicant states that he would receive notifications from Standard Bank every time the Respondent fell into arrears with the mortgage bond instalments. On numerous occasions, claims the Applicant, he made the Respondent aware to pay the bond instalments regularly to prevent possible legal proceedings being instituted against the parties. Notwithstanding these pleas, the Respondent still left the mortgage bond account to fall behind. The Respondent has made no payments whatsoever since April 2022. The last payment made to Standard Bank was on 8 March 2022 in the amount of R9 900.00.

[15]

At the beginning of 2021 and following the Applicant raising complaints pertaining to the Respondent's failure and/or refusal to pay the expenses associated with the property, the...