Fischer v Ubomi Ushishi Trading CC and Others 2019 (2) SA 117 (SCA).

/ / 2019, Family Law, News, Property Law


This matter considered whether a real right to a half-share in immovable property vests in a spouse, immediately after the dissolution of a marriage. More specifically, the court was tasked with determining whether the real right to the half-share in the immovable property vested in terms of a court order, incorporating a settlement agreement (in which one of the spouses forgoes their half-share in the property in favour of the other spouse), alternatively, whether the real right vested after endorsement of transfer of such immovable property in the Deeds Registry.  

Mr Andre Fisher (i.e. the Appellant) issued summons against Ubomi Ushishi Trading CC (i.e. First Respondent) and Mr Haynes (i.e. the Second Respondent) based on an acknowledgement of debt and corresponding suretyship in the amount of R566 500,00.  

In 2015, the Appellant obtained default judgment against the First Respondent and Mr Haynes for payment of the sum of R566 500,00.  

Mr and Mrs Haynes (i.e. the Second and Third Respondents) were the registered owners of immovable property (“the property”). Their marriage in community of property was dissolved by an order of divorce on 10 December 2012. In terms of the settlement agreement incorporated in the divorce order, Mr Haynes waived his right, title and interest in the property in favour of Mrs Haynes.  

Mr and Mrs Haynes, however, remarried on 28 April 2014, out of community of property, with the exclusion of the accrual system. On 28 April 2015 (1 year later) Mr and Mrs Haynes, again, divorced, wherein the Cape Town Regional Court handed down an order dissolving the second marriage and, in doing so, included an order that both Mr and Mrs Haynes would retain their respective possessions.  

Shortly thereafter, the Appellant applied for an order declaring Mr Haynes’ undivided half share in the property as executable. Mrs Haynes resisted the claim on the basis that she now had full ownership of the property, alternatively, that her right to the property preceded that of the Appellant’s. The court a quo dismissed the Appellant’s application, indicating that dominium of the property vested immediately upon grating the decree of divorce. In doing so, the court a quo considered two judgments in dismissing the application, being Corporate Liquidators (Pty) Ltd & another v Wiggill & others 2007 (2) SA 520 (T) as well as Middleton v Middleton & another 2010 (1) SA 179 (D). In the aforementioned cases, it was held, inter alia, that where the parties enter into a settlement agreement regarding the division of their assets, which settlement agreement is subsequently made an order of court as per section 7(1) of the Divorce Act 70 of 1979 (“the Divorce Act”), ownership of the assets vests immediately. The matter was then referred, by the Appellant, to the Supreme Court of Appeal (“SCA”).  

In its judgment, the SCA considered section 16 of the Deeds Registries Act 47 of 1937 (“DRA”) as the starting point in determining when ownership vests on divorce. The SCA held that upon a proper consideration of section 16, it is clear that derivative acquisition of ownership of immovable property required registration. Section 16 of the DRA provides as follows: “… 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 …”.  

The SCA further held that Mrs Haynes’ acquisition of the property was derivative in nature, that is, by way of a settlement agreement, which provided Mrs Haynes with the right to enforce registration of Mr Haynes’ share in the property. Accordingly, the settlement agreement, although binding on the parties, did not automatically enforce registration and, as such, ownership did not vest.  

Notwithstanding, as regards Mrs Haynes’ alternative defence, the SCA held that, at such time that Mrs Haynes acquired the personal right to enforce registration of the transfer of Mr. Haynes’ half share in the property into her name (per the settlement agreement) there was no greater right to defeat her claim and, as such, Mrs Haynes’ right preceded the Appellants. In this regard, when the appellant applied for an order declaring the property executable, Mr Haynes had already alienated his half share in the property.


The appeal was dismissed, with costs.


This case considered when the right to immovable property vests in a spouse after divorce, where one of the spouses, in terms of a settlement agreement, waives their half-share in the property in favour of the other spouse.

Written by Ashleigh Butler and Shaun Piveteau

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