Van Onselen NO v Kgengwenyane

• Jurisdiction: South Africa
• Judge: Comrie J
• Judgment Date: 23 May 1996
• Citation: 1997 (2) SA 423 (B)
• Docket Number: 480/96
• Hearing Date: 16 May 1996
• Counsel: M T R Mogoeng for the applicant R D Hendricks for the respondent
• Court: Bophuthatswana Supreme Court

Comrie J:

The respondent was married to his former wife in community of property. On 4 August 1994 they were divorced and a settlement agreement was made an order of the Court. In relation to their immovable property the settlement provided:

'The parties agree to the appointment of a liquidator to be nominated by them G after obtaining a decree of divorce, whose duty it shall be to attend to the sale of the house (which is situated at Magogwe Village in the district of Molopo) the payment of the liability in respect (of) a loan obtained from BNDC and the division of the balance between the parties.

The plaintiff retains her right to claim from the defendant such amount as she H shall have paid on behalf of the defendant in liquidating the debt with BNDC, ie after obtaining the decree of divorce.'

On 17 November 1994 (in case M351/94) I appointed the applicant, who is an attorney, as receiver and liquidator 'to deal with (the) immovable property of the abovementioned parties in accordance with the Deed of Settlement . . .'. The order I further authorised the applicant 'to sell and/or dispose of, if necessary, by Public Auction or by Private Treaty, the immovable property . . .'. In May 1995 the applicant obtained a valuation of the dwelling from Executive Appraisers (Pty) Ltd in the amount of R75 000. On 9 June 1995 the applicant concluded a deed of sale with the respondent's former wife, Mrs Kgengwenyane, whereby the applicant sold the dwelling to her for R75 000. I use the J

Comrie J

word 'dwelling' advisedly. It is a relatively modern six- or seven-roomed house, plus A an outbuilding. The condition thereof is described by the appraisers as 'fairly good'. But it is situated on tribal land, so it is only the improvements which can be valued and sold, and not the ground. This naturally affects the value.

On 4 April 1996 the applicant obtained a rule nisi calling upon the respondent to show B cause why it should not be ordered that the respondent, and all other persons occupying through him, be evicted from the said property, and why the respondent should not be ordered to pay the costs of the application. The respondent opposes confirmation of the rule. Answering and replying affidavits have been filed. C

Mrs Kgengwenyane has not been joined as a party. She has, however, deposed to an affidavit in support of the application, in which she states her opinion that it is essential that the Court be approached for an eviction order. She further gives reasons why the application is urgent. Though not technically joined, it is clear that Mrs Kgengwenyane is fully aware of the application and is making common cause with the applicant. I do D not think that a formal joinder is required in the circumstances.

Once the applicant received the appraiser's valuation, he advised Mrs Kgengwenyane's and the respondent's attorneys thereof, adding:

'We are accordingly proceeding to accept offers for the property and invite either parties to place offers should they so wish. E

Should the offers not be forthcoming by 20 June 1995 we will proceed to auction the property.'

The applicant says that thereafter the respondent discussed the matter with him in some detail. The applicant states that F

'the respondent was extremely negative and unco-operative as he was under the impression that the house should be valued more in the region of R250 000. I explained to him that the property was situated on tribal land and as such his valuation was totally unreasonable. I sensed that the respondent would not be co-operative. . . .' G

Mrs Kgengwenyane had in fact moved out of the premises, with her five children, after the divorce was finalised. Pursuant to the applicant's above letters, she advised him that she was interested in buying the property. When no other offers were forthcoming, the applicant concluded with her the deed of sale dated 9 June 1995. Both sets of attorneys were advised thereof. Mrs Kgengwenyane managed to arrange the H necessary financing for the transaction, though not without some difficulty. I apprehend that conventional mortgage bonds were not available because the land is tribal and not freehold. On 9 November 1995 the respondent's attorneys were advised that Mrs Kgengwenyane had secured financing. The letter continued:

'With reference to the question of occupation we understand that your client is reluctant to vacate the premises and we confirm that we will, on finalisation of I this matter, be obliged to bring an urgent application in the Supreme Court to have him ejected from the premises should he fail to do so voluntarily.

Under these circumstances we would appreciate it if you could discuss this matter with your client and confirm that he will vacate the premises soonest.'

The respondent failed to respond. The applicant then endeavoured to J

Comrie J

deliver further letters to him personally, but the respondent either ignored them or A refused to accept delivery. He remains in occupation of the house. The applicant states:

'5.15 I must lastly comment on the fact that the property is situated on tribal land. A meeting with the Chief of the Barolong, Chief Montshioa, was held and he indicated that as soon as he is given proof of the fact that the respondent B had received his moneys or was ordered in terms of a Court order to vacate the house, he would make the necessary inscription in the records at the Kgatla to indicate Mrs Kgengwenyane as the sole owner of the property. As the respondent refuses to accept the moneys available, it is essential that a Court order be obtained.'

There is an affidavit by Mrs Kgengwenyane. She says, inter alia, that she has been C paying 'an increased monthly premium' since November 1995 by reason of the loan. She and the children stay with her mother, to whom she pays R50 per month for the single room in which they live. The children sleep on the floor. The former common home 'will be extremely convenient for me and the children to live in'. She regards the matter as one of urgency D

'as the status quo will continue at least until...