M S v Registrar of Deeds, Cape Town and Others

The Applicant and Third Respondent were married in community of property and jointly owned a property in Silver Town, Athlone, Cape Town. They divorced on 1 February 2023 and entered into a consent paper made an order of court. Under the consent order, the Applicant was to take sole ownership of the property upon paying the Third Respondent half of its market value, with a fall-back provision that if she could not raise finance within 30 days, the property would be placed on the open market and sold to the highest offer. The parties agreed on a market value of R950,000, but the Applicant failed to raise finance within 30 days, even at a reduced price of R450,000. The Third Respondent granted a sole mandate to an estate agent, Ms McBride, to market the property. The Fourth Respondent (the Third Respondent's cousin) made an offer of R530,000, later increased to R650,000. The Applicant refused to sign the sale agreement on the basis that the price was too low. The Sheriff of the Regional Court, relying on clause 6.6 of the consent order, signed the sale agreement and later the transfer documents on the Applicant's behalf. The Applicant launched urgent proceedings to interdict transfer of the property pending final determination of her application to cancel the sale agreement.

• Whether the Applicant had established a prima facie right to have the sale agreement cancelled pending final determination of Part B of the application.
• Whether the Sheriff had authority under clause 6.6 of the consent order to sign the sale agreement on the Applicant's behalf where the property had not been properly placed on the open market as required by clause 6.3.
• Whether the requirements for an interim interdict were satisfied (prima facie right, irreparable harm, balance of convenience, absence of alternative remedy).
• Which party should bear the costs of the application and the wasted costs of the postponement on 29 July 2024.

1. The interim interdict prohibiting the First and Second Respondents from giving effect to the registration of transfer of the property to the Fourth Respondent was extended pending finalization of Part B. 2. The Third and Fourth Respondents were ordered to pay the costs of the application for interim relief, jointly and severally (on party-and-party scale including costs of counsel on Scale A). 3. The Applicant was ordered to pay the wasted costs of the Third and Fourth Respondents occasioned by the postponement on 29 July 2024 (on party-and-party scale including costs of counsel on Scale A, if applicable). Condonation was granted for the parties' late filing of papers and heads of argument.

For the purpose of an interim interdict application based on a dispute of fact, the court applies the test in Webster v Mitchell 1948 (1) SA 1186 (W) and Gool v Minister of Justice 1955 (2) SA 682 (C): it takes the facts set out by the applicant together with any facts admitted by the respondent, and considers whether the applicant should (not could) obtain final relief on those facts having regard to the inherent probabilities, and then measures the respondent's contradicting facts against that to determine whether they cast serious doubt on the applicant's prospects. A party cannot be bound by a Sheriff's signature of a sale agreement under a court order where the Sheriff exceeded the proper limits of the authority conferred by that order. The phrase 'open market' in a court order requiring a property to be placed on the open market implies a process suited to attracting the best available price through exposure to an adequate number of market participants, and an offer arising from a process that does not meet this requirement falls outside the Sheriff's authority to bind a recalcitrant co-owner.

The Court questioned whether the Sheriff had the power under clause 6.6 to sign a sale agreement at all, since the clause authorises steps to 'ensure that transfer is effected into the names of the respective parties' and transfer is a different juristic act from concluding an underlying agreement of sale. The Court did not decide this point but proceeded on the premise that the Sheriff's powers extended in principle to signing a sale agreement on behalf of a recalcitrant party, provided this was within the ambit and purpose of the order. The Court also cited international valuation standards to illustrate the meaning of an 'open market' process, emphasising that these were illustrative rather than legally binding.

This case provides guidance on the interpretation of 'open market' clauses in divorce consent orders and the limits of a Sheriff's authority under such orders to bind a recalcitrant co-owner to a sale agreement. It illustrates the application of the Plascon-Evans rule as modified for interim interdict proceedings (the Webster v Mitchell formulation) in a property dispute. The case also underscores the importance of a proper marketing process in giving effect to court orders that require property to be sold on the open market, and clarifies that a Sheriff's power to sign documents on behalf of a party is not unlimited but must be exercised within the proper ambit and purpose of the consent order.