THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case no: 1085/2017

In the matter between:

ANDRE FISCHER

APPELLANT

and

UBOMI USHISHI TRADING CC

FIRST RESPONDENT

RODNEY HAYNES

SECOND RESPONDENT

CHARLENE LA-VERNE HAYNES
(nèe BRINKMEIER)

THIRD RESPONDENT

Neutral citation:
Fischer v Ubomi Ushishi Trading & others (1085/2017) [2018]
ZASCA 154(19 November 2018)
Coram:
Shongwe ADP and Cachalia, Saldulker and Schippers JJA
and Mothle AJA

Heard:
05 September 2018

Delivered:
19 November 2018

Summary: Deeds Registries Act 47 of 1937 (the Act) – transfer of immovable
property formerly an asset in joint estate of spouses married in community of
property – whether ownership of half share in immovable property vests
immediately in spouse upon granting of divorce order or through transfer by way
of endorsement under the Act – whether spouse acquires personal right to claim
transfer by virtue of divorce order.

_________________________________________________________________

ORDER
_________________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town (Nelson
AJ sitting as court of first instance):

The appeal is dismissed with costs.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
Saldulker and Schippers JJA (Shongwe ADP, Cachalia JA and Mothle AJA
concurring):

[1] This appeal raises the question whether a real right to a half share in
immovable property vests in a spouse immediately upon the dissolution of a
marriage in community of property pursuant to a court order incorporating a
settlement agreement in terms of which one spouse foregoes his half share in the
property in favour of the other, or whether that right vests only after endorsement
of transfer in the Deeds Registry. An ancillary issue concerns the nature of the
right acquired by the spouse by virtue of a court order.

[2] Mr and Mrs Haynes, the second and third respondents respectively, are
the registered owners of immovable property known as Erf 31865, Goodwood,
Cape Town, located at 6 Arlington Crescent, Riverton, Western Cape (the
property). Their marriage in community of property was dissolved by an order of
divorce dated 10 December 2012. In terms of a settlement agreement
incorporated in the divorce order, Mr Haynes waived his right, title and interest in
the property in favour of Mrs Haynes.

[3] In 2015 the appellant, Mr Andre Fischer, obtained default judgment against
the first respondent, Ubomi Ushishi Trading CC (Ubomi) and Mr Haynes for
payment of the sum of R566 500, and applied for an order declaring Mr Haynes’
undivided half share in the property specially executable.

[4] The Western Cape Division of the High Court, Cape Town, dismissed the
application. It held that upon the granting of the decree of divorce, dominium of
the property vested with immediate effect in Mrs Haynes. The issue on appeal is
whether the court a quo was correct in dismissing the application. The appeal is
with its leave.

[5] In 2007 Mr and Mrs Haynes acquired the property from Mrs Haynes’ father
subject to a lifelong usufruct in favour of the latter. The settlement agreement
which they concluded on 7 November 2012, dealt with the property as follows:
‘4. PATRIMONIAL ASSETS
4.1 IMMOVABLE PROPERTY
The parties record that they are co-owners of the immovable property situated at 6
Arlington Crescent, Elsies River, being Erf 31865 Cape Town and agree:
4.1.1 That the immovable property be awarded to the Plaintiff [Mrs Haynes] and the
Defendant [Mr Haynes] waives all rights, title and interest in respect of same in favour of
the Plaintiff.
4.1.2 That the defendant shall be liable for the monthly mortgage bond payments in
respect of the immovable property until settlement of same.
4.1.3 That Plaintiff at her own cost shall effect transfer of the property into her name upon
settlement of the mortgage bond . . . .’

[6] However, they remarried on 28 April 2014, this time out of community of
property in terms of an antenuptial contract, with the exclusion of the accrual

system as contemplated in the Matrimonial Property Act 88 of 1984. It is not
disputed that they entered into the antenuptial contract to ensure that Mrs Haynes
would retain ownership of the property, in keeping with the settlement agreement.
Precisely a year later, on 28 April 2015, they were divorced for a second time.
The Cape Town Regional Court issued the order dissolving the second marriage,
which included an order that each party would retain their respective
possessions.

[7] In March 2015 Mr Fischer issued summons against against Ubomi and Mr
Haynes for payment of R566 500, based on an acknowledgement of debt by
Ubomi, and a suretyship agreement concluded by Mr Haynes for its
indebtedness. It does not appear from the papers when the debt was incurred or
the suretyship agreement signed. On 4 June 2015 Mr Fischer obtained judgment
against Ubomi and Mr Haynes for payment of R566 500. A warrant of execution
against Ubomi proved futile because it had ceased trading. Mr Fischer’s attempt
to execute against the movable assets of Mr Haynes resulted in the sheriff issuing
a nulla bona return.

[8] The debt remained unpaid and as stated earlier, Mr Fischer applied to the
court a quo for an order declaring Mr Haynes’ half share in the property
executable, since he was still reflected as a co-owner thereof in the Deeds
Registry. In February 2014 the value of the property was between R830 000 and
R870 000. Mrs Haynes resisted the claim on the ground that she had acquired full
ownership of the property.

[9] In her answering affidavit Mrs Haynes stated that Mr Haynes was ‘no
longer the half share owner of the property’. She alleged that full individual
ownership of the property passed to her when the divorce order was granted in
2012. In the alternative she contended that her personal right to full ownership

thereof preceded Mr Fischer’s claim. It is common cause that her right to have
her husband’s half share of the property registered in her name preceded Mr
Fisher’s claim.

[10] In dismissing the application the court a quo considered two judgments:
Corporate Liquidators1 and Middleton.2 In Corporate Liquidators it was held that
where parties entered into a settlement agreement regarding the division of their
assets, which is made an order of court as contemplated in s 7(1) of the Divorce
Act 70 of 1979, ownership of immovable property vested immediately.
Registration of transfer of property to a spouse was, therefore, not a prerequisite
for ownership.3 The court in Middleton, on the other hand, held that a settlement
agreement created only a personal right for the transfer of ownership and
consequently that the divorce order did not vest ownership without traditio
(delivery or transfer).4

[11] The court a quo followed Corporate Liquidators, because that judgment, it
said, was in large measure based on the judgment in Ex Parte Menzies,5 and
both judgments had been followed in Salie.6 It concluded that s 16 of the Deeds
Registries Act 47 of 1937, which required ownership of land to be transferred only
by means of a deed of transfer executed by the registrar of deeds, was expressly
qualified by the words, ‘Save as otherwise provided in this Act or in any other
law’. The Divorce Act, the court stated, was such a law. It thus held that upon the
granting of the decree of divorce, dominium in the property vested with immediate
effect in Mrs Haynes; and that Mr Haynes retained no right to the property

1 Corporate Liquidators (Pty) Ltd & another v Wiggill & others 2007 (2) SA 520 (T).
2 Middleton v Middleton & another 2010 (1) SA 179 (D).
3 Corporate Liquidators fn 1 paras 15 and 16.
4 Middleton fn 2 paras 10 and 13.
5 Ex Parte Menzies et Uxor 1993 (3) SA 799 (C).
6 Salie v Bales NO & others [2013] JOL 30580 (WCC).

capable of being declared executable at the instance of Mr Fischer. This was the
argument by counsel for Mrs Haynes before us.

[12] The starting point in deciding whether ownership of the property vests
immediately on divorce is s 16 of the Deeds Registries Act. It provides in relevant
part:
‘16 How real rights shall be transferred
Save as otherwise provided in this Act or in any other law the ownership of land may be
conveyed from one person to another only by means of a deed of transfer executed or
attested by the registrar, and other real rights in land may be conveyed from one person
to another only by means of a deed of cession attested by a notary public and registered
by the registrar….’

[13] It is a settled rule of statutory interpretation that when interpreting
legislation, what must be considered is the language used, the context in which
the relevant provision appears and the apparent purpose to which it is directed.7

[14] The Deeds Registries Act, as appears from its long title, was passed to
consolidate and amend the laws throughout the country relating to the registration
of deeds. The Act represents an attempt to regulate administrative aspects of the
registration of land in an orderly, clear, complete and practical way, whilst
simultaneously granting landowners substantial protection. 8  As stated in
Houtpoort,9 and affirmed by this court in Oriental Products,10 registration of title is
for the purpose of publicity; it is a system of public access to the land register
reflecting owners of property and the registration of other protected rights. The

7 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA) para 18.
8 C G Van Der Merwe Sakereg 2 ed (1989) at 337.
9 Houtpoort Mining & Estate Syndicate Ltd v Jacobs 1904 TS 105 at 108.
10 Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC & others [2010] ZASCA 166;
2011 (2) SA 508 (SCA) paras 12 and 28.

public is entitled to rely on the correctness of entries in the deeds office, although
the fact of registration is not a guarantee of any right registered.11

[15] So, the effect of the registration of transfer of immovable property is that
the owner and the public are protected. First, it enables the registered owner of
land to prove its right of ownership by presentation of a registered title deed. This
enables the owner to enforce this right against anybody. Second, as a result of
the publicity that goes together with ownership, registration also provides
adequate protection to members of the public wishing to conclude transactions
involving land. The public has access to the land register to establish ownership
of land and the restrictions to which it is subject.12

[16] Section 16 of the Deeds Registries Act confirms the principle that transfer
of immovable property must take place before the court of the place where the
land is situated (traditio coram judice loci rei sitae). This principle ‘still forms the
backbone of the current system of transfer of immovable property in South
Africa’. 13  Section 16 further provides that other real rights in land may be
conveyed from one person to another only by means of a deed of cession
attested by a notary public and registered by the registrar of deeds. Section 16 is
‘the main mechanism of ensuring sufficient publicity in the context of land title’.14

[17] Section 16 of the Deeds Registries Act thus provides that as a general
rule, real rights in land can be transferred only by registration in the deeds office.
Its central role in the registration system has been described as follows:15
‘Section 16 of the Deeds Registries Act constitutes the core of the registration system,
and embodies a principle of deeds registration, which has been confirmed on numerous

11 Oriental Products fn 11 para 28.
12 Sakereg fn 9 at 340; Frye’s (Pty) Ltd v Ries 1957 (3) SA 575 (A) at 582.
13 P J Badenhorst et al Silberberg and Schoeman’s: The Law of Property 5 ed (2006) at 205 para
10.3.
14 Ibid at 206.

occasions by the courts. It comprises two parts. On the one hand, it provides for the
derivative acquisition of ownership in immovable property by means of execution of a
deed of transport in the presence of the registrar, and attestation of the deed by the
registrar, except in cases expressly excluded. On the other hand, it provides that the
rights to immovable property other than ownership may only be transferred by way of a
notarial deed, registered by the registrar, except in the cases expressly excluded. Hence,
section 16 of the Deeds Registries Act deals with the transfer of ownership of
immovables by one person to another. Simultaneously it gives effect to the acquisition of
ownership in derivative form. The moment at which the registrar attests the deed is
regarded as the moment of registration. This is the point at which the transfer of
ownership from one person to another is given effect. Owners are substituted: the
transferor is relieved of his or her rights and responsibilities to the land, and the
ownership of that land now lies with the transferee.’

[18] Thus, on first principles and a proper construction of s 16 of the Deeds
Registries Act, derivative acquisition of ownership in land requires registration.16
Mrs Haynes’ acquisition of Mr Haynes’ interest in the property was derivative: it
arose from the settlement agreement which gave Mrs Haynes a personal right to
enforce registration of Mr Haynes’ undivided half share in the property. That
agreement, though binding on the contracting parties, did not by itself vest
ownership of Mr Haynes’ half share in the property in Mrs Haynes, any more than
a contract of sale of land passes ownership to the buyer. It follows that Middleton
was correctly decided.17 The vesting of ownership of the property in Mrs Haynes
required an act of transfer by way of an endorsement on the title deed of the
property in terms of s 45bis(1)(a) of the Deeds Registries Act. It provides:
‘If immovable property or a lease under any law relating to land settlement or a bond is
registered in the deeds registry and it –

15 Badenhorst fn 14 at 225 (footnotes omitted).
16 Badenhorst fn 14 at 236.
17  Middleton fn 2 paras 10-11 and 13; N van Schalkwyk ‘Aantekeninge: Huwelik binne
gemeenskap van goed: Die effek van ‘n egskeidingsbevel op ‘n bateverdelingsooreenkoms’ LitNet
Akademies Jaargang 9(3) (2012) at175.

(a)
formed an asset in a joint estate of spouses who have been divorced, and one of
them has lawfully acquired the share of his or her former spouse in the property,
lease or bond;
(b)
…
the registrar may on written application by the spouse concerned and accompanied by
such documents as the registrar deems necessary, endorse on the title deeds of the
property, or on the lease or the bond that such spouse is entitled to deal with such
property, lease or bond, and thereupon such spouse shall be entitled to deal therewith as
if he or she had taken formal transfer or cession into his or her name of the share of the
former spouse or his or her spouse, as the case may be, in the property, lease or bond.’

[19] That derivative acquisition of ownership in land requires registration, has
been the position at common law for more than a century. In Lucas’ Trustee18
Innes CJ put it this way:
‘ . . . the general rule of our law is that real rights in land can only be validly constituted by
registration coram lege loci. There are well recognised exceptions to that rule, such as,
for instance, acquisition of ownership to land by prescription, or of an interest in land by
marriage in community of property, and so on. But none of those exceptions apply in the
present case. Hence the general rule governs, and the real right which is sought to be
established is, it appears to me, in the same position as a right of ownership or right of
mortgage or a claim to some portion of the dominium cut off and separated from it so as
to create a servitude. In such cases the right can only be validly constituted by
registration.’

[20] Further, s 16 of the Deeds Registries Act, on its plain wording,
contemplates the transfer of ownership of land from one person to another. As
this court has said, it is concerned with the transfer of real rights in land.19 It
seems to us that in enacting the savings provision, namely, ‘Save as otherwise

18 Lucas’ Trustee v Ismail and Amod 1905 TS 239 at 242, affirmed in Lief NO v Dettman 1964 (2)
SA 252 (A) at 269.
19 Bowker v Registrar of Deeds 1939 AD 401 at 407.

provided in this Act or in any other law’, the legislature contemplated a law
dealing with the transfer of real rights in land. The Divorce Act is not such a law.
Section 7(1) of that Act does no more than authorise a court to make an order
regarding the division of the assets of the parties: it says nothing about the
transfer of real rights in land. By contrast, endorsements in terms of ss 45bis(1)(a)
and 45bis(1A) of the Deeds Registries Act fall within the savings provision in s 16.
So too, the transfer of rights in terms of a bond by endorsement, as provided in
s 40(1)(b) of the Administration of Estates Act 66 of 1965.20

[21] This brings us to Corporate Liquidators, a decision of a full court.21 The
facts can be briefly stated. Mr and Mrs Wiggill were married in community of
property. They had two properties: Portion 13 of the farm Goedehoop
(Goedehoop) and Erf 833, Louis Trichardt (Erf 833). In anticipation of their
divorce they concluded a settlement agreement in which they agreed that
Goedehoop would be sold and the purchase price used to pay an outstanding
mortgage bond over Erf 833 (registered in Mr Wiggill’s name). Erf 833 would then
be subdivided. Mrs Wiggill would become the registered owner of the
unencumbered Portion 1 of Erf 833 and Mr Wiggill, of the remaining extent. A
usufruct would be registered over the remaining extent in favour of Mrs Wiggill’s
parents.

[22] The marriage was dissolved in March 1998 and the settlement agreement
made an order of court. Goedehoop was sold and the bond on Erf 833 paid.
However, Erf 833 was not subdivided and portion 1 thereof was not transferred to
Mrs Wiggill. In the interim Mr Wiggill married the second Mrs Wiggill in community
of property. In February 2002 Mrs Wiggill applied for an order committing Mr
Wiggill for contempt of court for failure to comply with the court order. She alleged

20 See Badenhorst fn 14 at 205 and the authorities cited in footnote 53.
21 Corporate Liquidators fn 1 per Hartzenberg and Mavundla JJ and Ranchod AJ.

that he had paid the outstanding amount on the bond on Erf 833, but had failed to
cancel it in accordance with their agreement, and that he had borrowed further
monies under cover of the bond. Mrs Wiggill asked for an order that Erf 833 be
subdivided and that portion 1 thereof be transferred to her; and that the remaining
extent be transferred to the insolvent estate of Mr Wiggill and the second Mrs
Wiggill, whose estate was surrendered in March 2002. The trustee of the
insolvent estate sold Erf 833 at a public auction free of any encumbrance.

[23] However, ownership of Erf 833 had not yet been transferred. It was still
registered in the name of Mr Wiggill. The trustee argued that upon dissolution of
the marriage Mrs Wiggill obtained only a personal right against Mr Wiggill to give
effect to the settlement agreement; and that she had no real right in respect of Erf
833 because Mr Wiggill’s second joint estate was sequestrated before transfer of
the property into her name. Likewise, Mrs Wiggill’s parents only acquired a
personal right to have the real right of usufruct registered in their favour.

[24] The court of first instance reasoned that one of the natural consequences
of a marriage in community of property was that both spouses immediately
became co-owners of their previously separate estates, which became the joint
estate, regardless of in whose name the assets were held. On dissolution of the
marriage the reverse followed automatically. Therefore, so it held, on divorce Mrs
Wiggill’s share vested in her and registration of her portion in her name was a
mere formality.22

[25] Hartzenberg J endorsed this view and stated that the court below was
‘quite correct to equate the process of subdivision with the transfer of the
properties into the names of the parties’, and that those steps were mere

22 Corporate Liquidators fn 1 para 17.

formalities to give effect to their intention.23 The learned judge said that in a case
where parties enter into a settlement agreement regarding the division of their
assets which is made an order of court in terms of s 7 of the Divorce Act, the
division of the joint estate would be regulated by that agreement and the parties
would be bound by it. He cited an example of spouses married in community of
property who owned two fixed properties and agreed that each would receive one
property, and concluded that ownership of the respective properties would vest in
the parties immediately once the settlement agreement was made an order of
court. This, Hartzenberg J said, accords with the common law as expounded in
Rosenberg. 24 Registration of transfer of the properties in the names of the
respective spouses was not a prerequisite for ownership to vest in them, since
our system of deeds registration was a negative one, which did not necessarily
reflect the true state of affairs.25 The court concluded that Mrs Wiggill was the
owner of an unencumbered Portion 1, and was entitled to the cancellation of the
bond over it and transfer of the property into her name.26

[26] The court, however, erred. To begin with, its reliance on Rosenberg was
misplaced. In that case this court, with reference to Voet (23 2 68), held that for
the sake of completeness, the registrar of deeds required a wife, who after her
husband’s death wished to deal with her half share in land, to first receive
transfer. That practice however did not alter the principle that dominium of the
land passed by reason of the community of property.27 However, in Greenberg28
this court held that the position under our modern system of administering
deceased estates was that a legatee does not acquire dominium of immovable
property immediately on the death of the testator. Instead, the legatee acquires a

23 Corporate Liquidators fn 1 para 17.
24 Rosenberg v Dry’s Executors & others 1911 AD 679 at 688.
25 Corporate Liquidators fn 1 paras 15 and 16.
26 Corporate Liquidators fn 1 para 20.
27 Rosenberg fn 25 at 688.
28 Greenberg & others v Estate Greenberg 1955 (3) SA 361 (A) at 364G-H.

vested right to claim delivery of the legacy from the testator’s executor at some
future date. The legatee acquires dominium in the property only once it is
transferred to him by the executor.29 When community of property is terminated
(by death), the survivor is not on such termination automatically and immediately
vested with dominium of half of the assets of the joint estate, but merely the right
to claim from the executor half of the net balance of the joint estate after winding-
up. 30  As Van Schalkwyk 31  points out, the common law position set out in
Rosenberg no longer forms part of our law; and further that Rosenberg dealt with
the dissolution of marriage by death, not divorce, and there is no common law
authority applying the principle also in the case of divorce.

[27] Fundamentally however, the court in Corporate Liquidators overlooked the
common law principles of co-ownership, as well as the requirement in s 26 of the
Deeds Registries Act that co-ownership in land is only terminated on attestation
(registration) of deeds of partition transfer by the registrar, when ownership is
conveyed to the respective owners of the land.32 Spouses married in community
of property automatically become bound co-owners of immovable property in their
joint estate.33 Upon termination of the joint estate of Mr and Mrs Wiggill on
divorce, the bound co-ownership was replaced by free co-ownership until such
time as the subdivision of Erf 833 was effected. It is only upon attestation of the
deeds of partition transfer by the registrar that free co-ownership is replaced by

29 See Van Der Merwe fn 9 at 299.
30 H R Hahlo The South African Law of Husband and Wife 5 ed (1985) at 174-175; Costain &
Partners v Godden NO & another 1960 (4) SA 456 (SR) 456 at 461E-F.
31 Van Schalkwyk fn 18 at 172 para 2.3.
32 Section 26(1) the Deeds Registries Act provides in relevant part:
‘If two or more persons who own in undivided shares the whole of any piece . . . of land, have
agreed to partition that land, the registrar shall, on production to him of a power of attorney by
such persons authorising the passing of deeds of partition transfer of such land in accordance
with the agreement of partition . . . attest deeds of partition transfer . . . conveying to the
respective owners the land or shares therein awarded to them under the said agreement.’
33 Footnote 14 at 133; Van der Merwe fn 9 at 378-379; De Wet NO v Jurgens 1970 (3) SA 38 (A)
at 46D.

individual ownership.34 At that point ownership of portion 1 of Erf 833 would have
vested in Mrs Wiggill – a right that could, in the circumstances, only have been
validly constituted by registration. Thus, Mrs Wiggill obtained only a personal right
to subdivision and transfer of portion 1 of Erf 833. The court therefore erred in
holding that the subdivision of Erf 833 was a mere formality.

[28] Moreover, no separate portions of Erf 833 existed in which Mr and Mrs
Wiggill’s individual ownership could vest at the time that the joint estate was
terminated by divorce.35 So, the court’s finding that Mrs Wiggill was ‘the owner of
an encumbered portion 1’ was also incorrect.36 The term ‘co-ownership’ denotes
that two or more persons own a thing at the same time in undivided shares, ie
each co-owner has the right to share in the entire thing, but the various shares
need not be equal.37 But two co-owners cannot have ownership of different parts
of an undivided thing.38 As Van der Merwe explains:
‘Since more than one person cannot simultaneously have full ownership of the same
thing, co-ownership in undivided shares or communio pro indiviso comes into existence
between them. Only if the thing which is the object of co-ownership is indeed divisible
and is in fact divided, does each co-owner acquire absolute ownership of a proportional
separated part of the composite thing.’39 (Our translation.)

[29] For these reasons, and to the extent that it held that dominium of
immovable property vests immediately in a spouse in accordance with a

34 P Bakker ‘Nature of Ownership in Immovable Property of the Joint Estate on Divorce. Corporate
Liquidators (Pty) Ltd v Wiggill [2006] 4 All SA 439 (T)’ (2007) 70 THRHR 515 at 520.
Romeins-Hollandse Reg, 70(3): 520 para 3.3; Van Schalkwyk fn 18 at 173 para 2.5.
35 Bakker fn 35 at 520 para 3.4.
36 Corporate Liquidators fn 1 para 20.
37 Badenhorst fn 14 at 133.
38 Van der Merwe fn 9 at 378; Bakker fn 28 at 520 para 3.4.
39 Van der Merwe fn 9 at 380, the passage reads:
‘Omdat meer as een persoon nie terselfdertyd volle eiendomsreg oor dieselfde saak kan hê nie,
kom mede-eiendom in onverdeelde aandele, of communio pro indiviso tussen hulle tot stand.
Slegs indien die voorwerp van mede-eindom wel deelbaar is en inderdaad verdeel word, verkry
elke mede-eienaar absolute eiendom oor ‘n proporsionele afgeskeide deel van die saamgestelde

settlement agreement that is made an order of court, and that transfer of such
property is not required for dominium to vest, Corporate Liquidators was wrongly
decided.40 It follows that the court a quo erred by relying on this case in holding
that upon the granting of the divorce order, ownership of Mr Haynes’ half share in
the property vested immediately in Mrs Haynes; and in its interpretation of s 16 of
the Deeds Registries Act.

[30] But that is not the end of the matter. As already stated, Mrs Haynes raised
an alternative defence that her right to full ownership of the property preceded Mr
Fischer’s claim. Properly understood, this was a personal right against Mr Haynes
to compel transfer of his half share in the property into her name. At the time that
Mrs Haynes acquired this right, there was no other greater or competing right to
defeat her claim. When Mr Fischer applied for an order declaring the property
executable, Mr Haynes had already alienated his half share in the property to Mrs
Haynes by way of the settlement agreement. There is no suggestion that the
settlement agreement or the antenuptial contract preceding the second marriage
was concluded improperly so as to defeat the rights of creditors. Indeed, the
undisputed evidence is that the agreement was concluded to ensure that their
children, who were of tender age at the time, would not be deprived of their home;
and also to give effect to the usufruct in favour of her father.

[31] In the result the appeal is dismissed with costs.

saak . . . .’
40 The court’s finding in paragraph 22 of the judgment that the second and third respondents had
merely personal claims against the insolvent estate for the value of the usufruct, was correct.

____________________
H K Saldulker
Judge of Appeal

____________________
A Schippers
Judge of Appeal

Appearances
For Appellant:

R J Steyn
Instructed by:
DSC Attorneys, Cape Town

Rosendorff and Reitz Barry, Bloemfontein

For Respondent:

R Randall
Instructed by:
Z Abdurahman Attorneys, Cape Town
Maduba Attorneys, Bloemfontein