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Botha N.O v Deetlefs and Another (3408/07) [2008] ZAKZHC 2; 2008 (3) SA 419 (N) (23 January 2008)

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Case No. 3408/07

In the matter between :







[1] This is an application for the ejectment of the first respondent from premises described as 1 Wright Place, Carrington Heights, Durban, KwaZulu-Natal (“the property”), together with certain ancillary relief.

[2] The applicant is the executrix of the estate of her father, the late Frederick Johannes Rossouw (“the deceased”), who died on 17 May 2006. The first respondent is a major female, with whom the deceased formed a relationship during mid 1999, whereafter they commenced living together. They remained living together up to the death of the deceased. The second respondent is the Master against whom no relief is claimed.

[3] The property is registered in the name of the deceased. It is hypothecated in favour of the Standard Bank of South Africa to secure a loan, with a balance of R449 282,80. The estate pays the municipal rates accruing on the property. An amount of R42 983,46 has been paid out of the liquid portion of the deceased’s estate towards instalments on the loan secured by the mortgage bond. The first respondent has been paying for municipal services consumed on the property. She has not made any contribution towards the payment of the monthly instalments on the loan secured by the mortgage bond over the property.

[4] According to a draft liquidation and distribution account of the estate:

(a) the total assets (including the property) amount to R1 554 178,87;

(b) the property is valued at R850 000; and

(c) the total liabilities of the estate amount to R835 038,60 (which includes the mortgage bond, which is the single largest liability).

The applicant maintains, and prima facie it seems, that it will be necessary to sell the property to discharge the admitted debts of the deceased estate. It also appears from the estate account that there are certain assets on which further interest is accruing in the interim.

[5] The first respondent contends that since 1999, when she commenced living with the deceased, there existed a tacit universal partnership between her and the deceased. She has issued summons out of this division under Case No. 7707/06 seeking an order declaring that such a universal partnership existed, declaring that is was dissolved by the death of the deceased, and for an order appointing a Receiver to take charge of and realize the assets of the partnership, demand a true and correct account of any portion of the assets of which others may have taken possession, discharge the liabilities and debts of the partnership and dividing the partnership equally between the estate of the deceased and the first respondent. In that action, the onus will obviously be on the first respondent to prove such partnership – see Bosman v Registrar of Deeds 1942 CPD 303. The proceedings in the action are still pending and the first respondent accordingly contends that the present application is premature as it is only the court in the action which will be in a position to make a finding whether or not she is entitled to one half of the deceased’s estate.

[6] In support of her contention that a partnership exists, the first respondent claims that she and the deceased administered a joint household since 1999, when they combined their lives and possessions. She always contributed to the expenses running the household and also contributed to the mortgage bond instalments. In 2002 she and the deceased purchased their first property situate at 30 Rocky Ridge Road, Hillary, in the approximate amount of R290 000-00. They sold this property during 2005 for approximately R985 000 and then purchased the property where she currently resides for R590 000. R240 000 thereof was paid from the profits out of the 30 Rocky Ridge Road property and the balance was financed by a mortgage bond.

[7] She further states that she “will endeavour to obtain the other half portion of the immovable property should the relief be granted as set out in the abovementioned action”. Accordingly, she contends, that she is not in unlawful occupation.

[8] The applicant submits that irrespective of whether there is a universal partnership or not, the first respondent is obliged to dispose of the property and discharge the debts of the estate. She complains that the first respondent has not co-operated with her in placing the property on the market for sale and that she requires vacant occupation of the property to market it properly.

[9] It is trite law that :

An executor is not a mere procurator or agent for the heirs but is legally vested with the administration of the estate. An estate is an aggregate of assets and liabilities and a totality of the rights, obligations and powers of dealing therewith, vests in the executor so that he alone can deal with them. … Immediately after Letters of Executorship have been issued to him, the executor must take into his custody or under his control all the property in the estate which are not in the possession of any person who claims to be entitled to retain them under any contract, rights of retention or attachment. … It has been succinctly stated that it is a duty of the executor to liquidate the estate and the estate is liquidated when it is reduced to possession, cleared of debts and so left for the enjoyment by the heirs. …”

See Meyerowitz on Administration of Estates and Estate Duty 2004 ed. para 12.20, section 26(1) of the Administration of Estates Act, No. 66 of 1965, Lockhat’s Estate v North British and Mercantile Insurance 1959(3) SA 295 (AD) at 302.

[10] It is common cause that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 (“PIE”) apply, should it be found that the first respondent is in unlawful occupation.

[11] The first respondent did not in argument dispute that the procedural requirements of PIE have been complied with. In view of the first respondent’s opposition to the application, it is in any event not necessary to serve further notices on the first respondent – see Ubunye Co-operative Housing (Association Incorporated under section 21) v Joyce N Mbele and Others NPD Case No. 3754/2005 dated 22 September 2005.

[12] The issues arising are thus:

  1. is first respondent in unlawful occupation or does she have a right to remain in occupation of the property registered in the estate;

  2. if the first respondent is in unlawful occupation, is it just and equitable that she be ejected, and if so, on what terms.

[13] Applicant contends, arguing on first respondent’s version, that even assuming the existence of a universal partnership (or some from of joint ownership of the property), that:

  1. such alleged partnership is an anonymous partnership, or in the nature of an anonymous partnership, as the first respondent was not held out to the world as a partner and did not actively participate in the business of the partnership – see generally Lawsa 1st re-issue Vol. 19 page 267;

  2. as an anonymous partner, the first respondent had no right to claims possession of assets while the partnership remained in existence – Sabatelli v St. Andrew’s Building Society and Ors 1933 WLD 55, Eaton and Louw v Arcade Properties (Pty) Ltd 1961(4) SA 233 (T), Mmabatho Fruit Corporation (Pty) Ltd v Fourie en Andere 1985(1) SA 318 (T) at 322;

  3. if it is a case of mere joint ownership (as the first respondent on her own version also describes the situation), the applicant as representative of the estate cannot be obliged to remain a co-owner against her will and such alleged co-ownership can be terminated with the actio communi dividundo – see Robson v Theron 1978(1) SA 841 A; Drummond v Dreyer 1954 (1) SA 306 N at 308.

[14] The death of the deceased terminated any such partnership ex lege from the date of death.

[15] Upon termination and in the absence of agreement, a receiver should in the ordinary course and in the absence of agreement as to how the dissolution of the partnership is to be achieved, be appointed to collect all the assets, discharge debts and generally liquidate the partnership. Assets in the possession of either party must be surrendered to the receiver. Indeed, once a receiver is appointed, he is the only one with the locus standi to claim delivery of partnership assets. Before a receiver/liquidator is nominated and appointed, the other partner can institute proceedings, but it seems only to protect a partnership asset – see Van Tonder v Davis 1975 (3) SA 616 (K) at 618 C – D.

[16] In the absence of some agreement, or a unilateral legal act making over such property to the first respondent, for example as a bequest, (none of which is alleged, the deceased also having died intestate) no actio pro socio seems to be available, only the actio communio dividundo.

[17] In the absence of a receiver, the parties would be under an obligation, in my view, to assist in the disposal of any partnership assets, or then at least to assist in the protection thereof by making the same available for realization on more advantageous terms than would be realized by a forced sale of the property at the instance of the mortgagee.

[18] In the absence of agreement:

  1. a former, albeit anonymous partner, cannot remain in exclusive possession and occupation of a partnership asset to the exclusion of the other partner (or his estate), and a fortiori where no contribution is being made by that partner towards the mortgage bond liability in respect thereof, especially where this was the case up to the date of death;

  2. the option to buy in the other half share in the property, even after a full accounting (or, in casu, finalisation of the pending action) by one partner cannot be enforced. The other partner (or the heirs of the deceased partner’s estate) might have a similar desire. That is all the more so where the only evidence of the state of the assets and liabilities of such a partnership, indicates that the property will have to be sold to liquidate the debts of the disclosed partner primarily liable therefore. That is the very fate that will befall any partnership asset, whether in a disclosed or anonymous partnership.

[19] A half owner of property is not ex lege entitled to occupation or to remain in occupation of property, but is only the owner of an undivided (in the absence of partition) half share. In the absence of agreement, the first respondent has not greater rights to exclusive occupation of the property than the other owner of the remaining half share. The first respondent’s occupation of the property is unlawful. Her right to an undivided half share in the partnership (assuming it to have existed) is not necessarily co-extensive with a half share in the immovable property.

[20] In my view, the first respondent is on her own version in unlawful occupation of the property.

[21] The first respondent has been in occupation of the property for more than six months. Section 4(7) of PIE provides:

(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by a woman.

(8) If the court is satisfied that all the requirements of this section have been complied with, and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine -

(a) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and

(b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).”

[22] I have taken into account that it was obviously the deceased’s desire that the first respondent be accommodated in his home and that this arrangement would probably have continued for some time to come, but for his death. They seem to have been part of one household.

[23] In determining a just and equitable date, I must have regard to the interests and circumstances of the first respondent as occupier and pay due regard to the broader considerations of fairness and constitutional values. I am required to infuse elements of grace and compassion into the formal structures of the law – see Wormald N.O. and Ors v Kambule 2006(3) SA 562 SCA at 570.

[24] My discretion is one in the wide and not the narrow sense – see Ndlovu v Ngcobo; Bekker and ano. v Jika 2003(1) SA 113 (SCA) at para [18].

[25] Taking into account inter alia that:

  1. the first respondent was the deceased’s companion and co-habitant and occupier of the property and would probably have continued in occupation of the property;

  2. the first respondent was part of the deceased’s de facto household;

  3. the first respondent is now on her own as the survivor of this union and heads her own household;

  4. the first respondent has been in occupation for more than six months;

  5. the first respondent is pursuing a claim based on the alleged partnership which, if proved, will vest her with certain benefits (and might, and I put it no higher than that, enable her or place her in a position to negotiate and achieve her stated intention of acquiring the remaining interest of the estate in the property);

  6. the estate has paid the mortgage bond instalments on the property in the interim;

it is my view that the first respondent should be ordered to vacate the property on or before 30 April 2008 and if she has not done so by then, that an eviction order may then be carried out.

[26] The applicant has been successful, as the first respondent denied any obligation to vacate, and is accordingly entitled to her costs.

[27] I grant an order in terms of paragraphs 1, 2, 3 and 4 of the Notice of Motion, save that the words “on or before 30 April 2008” are substituted for the words “within THREE (3) days of date of service of this order” in paragraph 1 thereof.

Date of Hearing : 7 December 2007

Date of Judgment : 23 January 2008

Counsel for Applicant : M. Harcourt

Instructed by : Sanan & Watts

Counsel for Respondent : Van Rhyn Fouché

Instructed by : De Villiers, Scholtz