Johanna Gertruida Cloete v Gerrit Antonie Cloete

The parties were married in community of property for 35 years and divorced on 24 February 2022. A deed of settlement, made an order of court, regulated their post-divorce rights in respect of a jointly owned property consisting of a main dwelling and a flat. The appellant was granted an unfettered right to occupy the main dwelling for life or until sale, and the respondent an unfettered right to occupy the flat, subject only to a prohibition on either party residing with a romantic partner. Clause 2.5 allowed either party to demand sale of the property if the other breached those conditions. After divorce, relations deteriorated and reciprocal protection orders were obtained. The respondent moved out of the flat and later alleged that the appellant breached his right of occupation by changing a gate remote and restricting access. He applied in the Regional Court to compel sale of the property or, alternatively, to terminate co-ownership via the actio communi dividundo. The magistrate found that the appellant breached the deed of settlement and ordered the sale of the property. The appellant appealed to the High Court.

The appeal was upheld. The order of the Regional Court was set aside and replaced with an order dismissing the respondent’s application with costs. The respondent was ordered to pay the costs of the appeal.

The case affirms the primacy of settlement agreements made orders of court in post-divorce disputes and clarifies that courts may not expand or rewrite such agreements under the guise of policy considerations. It underscores strict adherence to contractual interpretation principles and the Plascon-Evans rule in motion proceedings, and limits the circumstances in which co-owners may rely on the actio communi dividundo where their rights are expressly regulated by agreement.