- August 12, 2022
- |Concise Law Reports (CLR), Law Of Persons
LAW OF PERSONS – HUSBAND AND WIFE: JOINT OWNERS OF PROPERTY AND CO-MORTGAGORS OF BOND
The parties in this divorce matter were married out of community by virtue of the provisions of section 17(6) of the Native Administration Proclamation 15 of 1928. During the subsistence of the marriage, the parties became registered co-owners of a property, and a mortgage bond was registered over the property in favour of the second defendant. Both parties were liable to the second defendant, in terms of the loan agreement, for the repayment of the loan amount secured by the bond. The Deed of Transfer in respect of the abovementioned erf incorrectly referred to the parties as ‘married in community of property to each other.’
USIKU J had to determine the following principal issues:
- which of the parties is responsible for the breakdown of the marriage;
- whether the defendant made out a case entitling her to the rectification of the Deed of Transfer;
- whether the plaintiff is entitled to ½ share in the property by virtue of his co-ownership in the property.
The court went on to state that the onus to prove desertion and the intention to desert on the part of the defendant was on the plaintiff, but on the evidence before the court, the plaintiff failed to discharge that onus. The defendant, however, established desertion on the part of the plaintiff and was entitled to an order for the restitution of conjugal rights.
In regard to the disputed property, the defendant testified that the property was erroneously registered in the joint names of the parties. She further asserted that the loan agreement and subsequent mortgage bond registration over the property were done by mistake. A party seeking to rely upon a right to claim a rectification must establish the facts justifying the rectification, in the clearest and most satisfactory manner. Such a party is required to set out averments and adduce evidence to enable the court to determine how the error came about.
The court found that the defendant has not established a factual basis for the rectification. parties agreed to have the property registered in their joint names and the parties are properly reflected as co-owners of the property. By virtue of the parties’ joint ownership of the property, each party is entitled to a half-share in the property. Every co-owner is entitled to have the joint ownership terminated, as no co-owner should be obliged to remain a co-owner against his will.
As a result, It was ordered that the joint ownership of the parties in the immovable property was terminated.
N v N NAHCMD 12 August 2022