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[2016] ZAWCHC 203
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L.M v F.M (10502/2016) [2016] ZAWCHC 203 (15 December 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 10502/2016
In
the matter between:
L
M (nee
W)
Applicant
and
F
M
Respondent
Coram:
Canca,
AJ
Date
of Hearing:
21
November 2016
Date
of Judgment:
15
December 2016
JUDGMENT
INTRODUCTION
1.
The
applicant and the respondent are husband and wife. Their
marriage was not successful. They are engaged in divorce
proceedings. They own the property described hereunder in
undivided shares, the applicant owning a two third and the
respondent,
a one third share. In this application, the
applicant asked for the termination of their joint ownership of the
property
under the
actio
communi dividundo,
and
for related relief, as set forth hereunder.
2.
The
orders sought in the Notice of Motion, in summary, are that:
2.1 Erf […]
Pinelands, known as […], Pinelands, Western Cape (“the
property”), registered in the names
of both the applicant and
the respondent, with each holding a two-third undivided share and a
one-third undivided share respectively
in the property, be sold at
market value within 60 (sixty) days from the date of the order;
2.2 The applicant has the
first option to purchase the property. Alternatively, in the
event of the applicant not electing
to exercise the option, that the
respondent purchase the property and, further alternatively, should
the respondent elect not to
purchase same, that the property be sold
in the open market;
2.3 The parties be
directed to sign all such documentation as required in order to
affect transfer of the property into the name
of the applicant or a
new owner. In the event that either of the parties fail to sign such
documentation upon request, the Registrar
and/or the Sheriff of the
High Court be authorised and empowered to sign such documentation on
the applicant or the respondent’s
behalf.
2.4 Upon registration and
transfer of the property into the name of the new owner, the
following expenses be deducted from the proceeds
of the sale and
paid:
2.4.1
The selling
commission due to the agent who was the effective cause of the sale
(if applicable), alternatively, should the property
be sold on public
auction, the auction fees payable in respect of the sale (if
applicable);
2.4.2
The costs
of obtaining an entomologist or electrician’s certificate;
2.4.3
Any
outstanding rates, taxes, utility bills and/or levies;
2.4.4
Other
necessary and ancillary costs relating to the sale of the property,
namely a gas certificate, a beetle certificate and such
like.
2.5 The applicant is
entitled to payment of two-thirds of the proceeds from the sale of
the property after deduction of the costs
set out in paragraph 2.4
forthwith upon registration of transfer.
2.6 The respondent’s
one-third share of the proceeds from the sale of the property, after
deduction of the costs set out in
paragraph 2.4, be retained in Trust
by the conveyancing attorney pending the resolution of a dispute
regarding the applicant’s
entitlement to repayment of the
monies set out in paragraphs (b) to (k) and paragraph 7 of the
agreement entered into between the
parties on 14 July 2015, referred
to in paragraph 7 below, is determined.
2.7 The market related
price of the property shall be determined by a sworn valuator
alternatively, in the event that the respondent
disputes the
valuation by the aggregate between two valuations made by sworn
valuators, one to be appointed by the respondent at
his cost.
In the event that the respondent fails to obtain a report from a
sworn valuator appointed by him within 60 (sixty)
days of date of
this order, the remaining valuation shall be regarded as the market
related price of the property.
2.8 The respondent pay
the costs of the application on an attorney and client scale.
3.
The
respondent consents to the relief sought in paragraphs 2.1, 2.2, 2.3,
2.4 and 2.7 above. Only the following relief, namely
(a) the
declaratory order sought in para 2.5; (b) the anti-dissipation
interdict sought in para 2.6 and (c) the costs order sought
against
him in paragraph 2.8 is opposed by the respondent.
4.
The
respondent has, in turn, brought a counter-application in which he
seeks three orders. These are that (1) the Order granted
on 29
August 2016 in respect of a Chamber Book application be rescinded;
(2) the relief prayed for in paragraphs 2.5, 2.6, and
2.8 above be
struck out or, in the alternative, be dismissed and (3) costs be
awarded against the applicant on the attorney and
client scale.
BACKGROUND
5.
The
applicant is an attorney who mainly practices in the field of family
law. She is also the instructing attorney in this
matter.
The respondent is a self-employed businessman who runs a garden
service business from the property. The applicant
and the respondent
were married to each other on 22 February 2015, out of community of
property, without accrual. There are no
children born out of the
marriage. As stated earlier, the marriage was not successful,
the applicant having issued summons
for a Decree of Divorce out of
this Court on 21 April 2016.
6.
A few
months after their marriage, the parties purchased the property from
the respondent’s parents in July 2015. The
applicant
avers in her founding affidavit that pursuant to the purchase of the
property she obtained a mortgage bond in the amount
of R500 000
with First National Bank over the property and secured an advance of
R1 500 000,00 with Nedbank, as
she already had a mortgage
bond registered with it in respect of a flat she owned in Sea Point.
She used this advance and
certain other monies to pay the remainder
of the purchase price of the property.
7.
It appears
from the founding affidavit that, although the applicant was
interested in purchasing another property in the area, she
agreed to
purchase the property, subject to there being substantial renovations
done to it. The respondent agreed to this.
The parties
then concluded a written agreement on 14 July 2015 in terms of which
the applicant sought to record in writing the
terms for the repayment
of the renovations and the other costs she incurred or would incur in
respect of the property.
8.
The
material terms of the agreement include the following:
“
RENOVATIONS
a)
The
property is in dire need of renovation. The costs of renovating
the property are being paid for in full by L.
[the
applicant]
.
b)
L.
will be fully reimbursed for the cost of renovation on the sale of
the property or in any other event whereby the property is
alienated
from the parties. Alternatively L. will be reimbursed within
two weeks after demand to F. [
the
respondent
]
for repayment which demand is to be made in writing.
c)
The
cost of the renovation amounts to R400 000 and both parties
agree that no proof need be provided in support of this figure.
d)
The
aforementioned amount will be updated in terms of the Consumer Price
Index when same becomes due. More specifically if
payment is
due in ten years’ time to L. then, and in such event, she will
be reimbursed the equivalent of R400 000 as
at its value after
ten years.
BOND COSTS
e)
L.
will be fully reimbursed for the bond costs she has paid for the
registration of the bonds to Nedbank and FNB and ancillary costs.
f)
The
interest accrued on the bond amount will also be reimbursed to L..
For example in the event that L. settled the bond and
at that time
the interest accrued at that time amounts to R500 000 she will
be entitled to reimbursement of that interest
amount.
g)
The
reimbursement of the bond costs, ancillary costs and interest will be
payable as per paragraph (b) hereinabove i.e. upon sale
or alienation
of the property or on demand.
h)
These
amounts will be updated in terms of the Consumer Price Index when
they fall due as per paragraph (d) above.
TRANSFER FEES
i)
L.
will be fully reimbursed for the transfer costs that she has paid for
the registration of the property. The transfer costs
include
transfer fees and transfer duty amongst other ancillary fees as per
the pro forma invoice from the conveyancing attorneys.
j)
The
reimbursement of the abovementioned costs will be payable as per
paragraph b) hereinabove as well as paragraph (d).
GAS CERTIFICATE AND
ELECTRICAL CERTIFICATE
k)
It
is recorded that L. has paid for the Gas Certificate and Electrical
Certificate despite the Agreement of Sale of 2 Pleasant Place
stating
that the sellers would take responsibility for same. The costs
have been R2 000 (for the gas certificate) and
R1 200 (for
the electrical certificate). Reimbursement will occur as per
paragraph (b) and (d) above.
7. F. and L. further
wish to record that to the extent that F. has facilitated the
renovations L. agrees to waive 100% of the transfer
duty costs as
mentioned in paragraphs in (i) and (j) above.“
9.
Following
the breakdown of the marriage and the institution of the divorce
proceedings, the applicant attempted to secure the respondent’s
consent to the sale of the property. The parties could not
agree on a sale price. In an endeavour to obtain the property’s
market value, the applicant procured a valuation from a registered
property valuer who valued the property at R3 850 000.
The respondent, on the other hand, based on the opinion of an estate
agency familiar with the property values in that area, felt
that the
market value of the property was R4 000 000 net of an
estate agent’s commission of approximately R200 000.
10.
The essence
of the respondent’s defence is that the applicant has failed,
in her founding affidavit, either on the facts or
the law, to make
out a case which would justify the grant of the relief set out in
paragraphs 2.5, 2.6 and 2.8 above. It
was contended on behalf
of the respondent that, insofar as the declaratory relief sought in
paragraph 2.5, the applicant, foresaw
a dispute as to the amount she
was allegedly entitled to as reimbursement. The applicant,
herself, avers in her founding
affidavit that there is a factual
dispute as to the amount of reimbursement due to her.
Therefore, the applicant ought not
to have proceeded by way of motion
but rather by way of an action, so the contention continued.
The relevant portion of the
applicant’s founding affidavit
reads as follows:
“
I understand
from the correspondence exchanged between the parties that Respondent
is disputing his indebtedness in terms of the
agreement entered into
between us on 15 July 2017. I, on the other hand, intend to
rely on the terms of this agreement.
At the very least, the
respondent is indebted to me in the sum of R400 000 representing
the costs of renovations paid for
in full by me as well as further
ancillary costs, which he undertook to repay me. As we cannot
appear to resolve this factual
dispute in these papers, I submit it
would be just and equitable that Respondent’s share from the
proceeds of the property
be retained in trust pending the resolution
of the dispute. I have pleaded both verbally and in writing
with the respondent
to attend at Mediation in an effort to resolve
this dispute amicably and cost effectively, but to no avail ….”
11.
The
respondent finds support for the aforesaid contention in
Harms
Amler’s Precedents of Pleadings
Eighth
Edition where, at page 152, the learned author states that if a
dispute of fact is foreseeable, a declaration of right should
be
sought by way of action.
12.
The
principles to resolve factual disputes in motion proceedings are
trite and need not be repeated here. See the
locus
classicus
on
the topic,
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E – 635 C and
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) paras 26 – 27. Although Ms Smit,
for the applicant, argued that
Plascon
Evans
does not find application in matters of contractual interpretation,
Mr van Rensburg, for the respondent, contended that contractual
interpretation is not a special category of law whereby a factual
dispute is excluded from the ambit of the Plascon Evans rule.
I
do not agree with Ms Smit or Mr van Rensburg. Where the wording
of a contract is clear, the Plascon Evans approach, in
my view, does
not apply. The contract, in such circumstances, must be
implemented in accordance with its clear meaning.
If the
meaning is not clear and extraneous evidence is legally permitted to
assist in its interpretation, for example, evidence
on background
circumstances, the Plascon Evans rule will apply to such evidence.
13.
In the
concluding paragraph of her replying affidavit and in Heads or
Argument, the applicant prays that, in the event that I was
disinclined to grant the relief sought or alternate relief, the
matter should be referred to oral evidence in order to resolve
the
dispute. I accept that there are material disputes of fact
regarding some of the amounts to be reimbursed to the applicant
particularly in the light that she has conceded to this in her
papers. The respondent contends that he is entitled to a third
of the current value of the property without any set off or
deduction. He claims that he is not liable for the repayment
of
any mortgage bond, only the interest on the bond with First National
Bank. Also, he denies liability for any portion of
the
R1 500 000,00 advance secured by the applicant from Nedbank
in respect of her Sea Point flat. The third major
point in
dispute is whether the reimbursements set out in the agreement are to
be paid before any pro rata allocations are made
and whether same
should be paid from the respondent’s share.
14.
Snyman
AJ
, in
Jonsson
Workerwear (Pty) Ltd v Williamson & Another
(2014) 35 ILJ 712 (LC) at para 16, the learned Judge, having examined
the authorities dealing with Rule 6(5)(g) of the Uniform
Rules of
Court - the Rule applicable to referral of motion proceedings
to oral evidence – held that:
“…
it is
clear that as a general principle, the Court has a discretion whether
to refer motion proceedings to oral evidence where there
is a dispute
of fact that needs to be resolved. In exercising this
discretion a litigant applying for a matter to be referred
to oral
evidence should at least advance reasonable grounds to support this
discretion being exercised in favour of the litigant.
Proper
and formal application must be made in this regard. It should
at least set out what evidence presented by the other
litigating
party in the affidavit is lacking in credibility and how the referral
to oral evidence will resolve this. The
Court should consider
to what extent this referral to oral evidence tip the scales in
support of the litigant seeking the referral.
The final issue
is convenience to the Court.”
15.
The
applicant has not made out a proper case for referring the matter to
oral evidence in terms of the principle set out by
Snyman
AJ
in
paragraph 14 above. Merely asking that the matter be referred
to oral evidence in one sentence in her replying affidavit
and as an
alternate submission in Heads of Argument is simply not sufficient to
meet the test set out in
Jonsson
Workerwear supra
.
Moreover, as was correctly argued by Mr van Rensburg, as a general
rule, applications for oral evidence are made
in
limine
and
are only granted in exceptional circumstances. See
Law
Society, Northern Provinces v Mogami
2010 (1) SA 186
(SCA) 195 C – D. There are no exceptional
circumstances in this matter and, absent a proper and formal
application
therefor, the applicant cannot succeed in her informal
prayer for referral of the matter to oral evidence. Moreover, the
issues
to be decided at such a hearing are, in my view, not
sufficiently ventilated in the papers.
16.
However,
notwithstanding the sentiments expressed above I cannot fault the
applicant for proceeding by way of motion and not action.
The
parties are in the process of divorcing and it is in both their
interests that the issue of the sale of the property be resolved
or
finalised as speedily as possible particularly given that she appears
to be the one burdened with the costs associated therewith.
This is a case where a substantial part of the relief sought by the
applicant was not going to be the subject of factual disputes.
The applicant came to Court to get an Order that the property be sold
on agreed terms and that her share was two-thirds and the
respondent’s one-third. If she had instituted an action,
it might have taken more than two years before she obtained
an Order
for the sale of the property.
17.
Apart from
the anti-dissipation interdict, which I will deal with hereunder, the
applicant did not in her Notice of Motion seek
any relief relating to
the matters recorded in paragraphs (b) – (k) and 7 of the
agreement of 14 July 2015, Nothing
contained in this judgment
will prevent any party for instituting separate proceedings to obtain
such relief.
18.
I now turn
to the anti-dissipation interdict. The effect of the relief
sought would prevent the respondent from dealing with
his portion of
the proceeds of the sale of the property pending the resolution of
the dispute between him and the applicant as
to the repayment of
certain monies allegedly due to her by him.
19.
The
applicant contends, in summary, that having been solely responsible
for the financing and renovation of the property and based
on an
agreement that the respondent would reimburse her those costs, it
would be just and equitable that the respondent’s
portion of
sale proceeds be held in trust pending resolution of the dispute as
to her entitlement to those monies. The contention
is based on
the averment that the respondent has no substantial investments or
assets and no secured monthly income.
20.
In order to
succeed in this leg of the application, the applicant has to overcome
the following threshold requirements for an anti-dissipation
order.
The first step is to satisfy the standard requirements for an interim
interdict. These requirements are trite
and include:
20.1.
a
prima
facie
right
albeit open to some doubt;
20.2.
a
well-grounded fear of irreparable harm to the applicant should
interim relief be refused and the ultimate relief eventually granted;
20.3.
the absence
of a satisfactory alternative remedy; and
20.4.
the balance
of convenience favours the grant of interim relief.
Myflor
Investments (Pty) Ltd v Everett NO and Others
2001 (2) SA 1083
(C) at
1088 E – F. See also
Knox
D’Arcy Ltd v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(SCA) 373 D where it was held that the requirement of
no alternative remedy (in an application for interim relief) does not
apply
in the case of an anti-dissipation order. The rest of the
requirements do apply.
21.
The second
threshold requirement to be met where the applicant does not have any
special claim to the respondent’s share of
the property, is for
the applicant to convince the Court that “
the
respondent is wasting or secreting assets with the intention of
defeating the claims of creditors
”.
See the dictum of
Harms
ADP
(as
he then was) in
Carmel
Trading Co Ltd v Commissioner of South African Revenue Services and
Others
2008 (2) SA 433
(SCA) at para 3 where the learned Judge states that
“
such
an order
[a
preservation and anti-dissipation order]
,
which interdicts a respondent from dissipating assets, is granted in
respect of a respondent’s property to which the applicant
can
lay no special claim. To obtain the order the applicant has to
satisfy the Court that the respondent is wasting or secreting
the
assets with the intention of defeating the claims of the creditors.
Importantly, the order does not create a preference for
the applicant
to the property interdicted”.
It is common cause that this application is to preserve an asset that
is not in issue between the parties and that the applicant
does not
claim any proprietary or quasi-proprietary right to it. All the
applicant desires is to have the monies kept in
trust so as to be
available to satisfy a debt allegedly owed to her by the respondent.
22.
The central
issue for determination, given the test for the grant of the order
sought in this part of the application, is whether
the applicant’s
founding affidavit makes out a
prima
facie
case
with regard to the respondent’s intention to secrete or waste
his share of the proceeds of the sale of the property so
as to
frustrate or defeat her claim.
23.
The
respondent is, on the applicant’s version, a man of few means.
But, the applicant fails to make out a case that
the respondent will
secrete his assets once the proceeds of the sale have been paid out
to him. The essence of the applicant’s
case is that it
would be just and equitable if those funds are kept in the
conveyancer’s Trust account until resolution of
their dispute
so that she could access same when the dispute is resolved.
That, however, is not the test for the granting
of an
anti-dissipation order. Also, the Courts are slow in granting
anti-dissipation orders due to the restrictions such
orders place on
a person’s ability to deal with his or her assets as he or she
wishes.
24.
Viewed as a
whole, I do not consider that the allegations in the founding
affidavit are such that a reasonable person would conclude
that the
respondent intends to secrete or waste his funds in order to defeat
the applicant’s claim. The prayer for
an anti-dissipation
interdict therefore falls to be dismissed.
25.
It is
appropriate to now turn to the respondent’s
counter-application. Should the Chamber Book Order of 29 August
2016
be rescinded? The background to the grant of the aforesaid
Order, in summary, is the following: The respondent served
and
filed a Notice to Oppose this application on or about 25 June 2016
together with a Rule 35 notice calling on the applicant
to produce
various documents which he required for purposes of drafting the
answering affidavit. Then, when no response was
forthcoming,
the respondent served a Rule 30A notice on the applicant calling for
compliance with the Rule 35 notice. Applicant’s
response
was delivered on 21 July 2016. The applicant only produced one
of the approximately thirteen documents requested,
stating,
inter
alia
,
that the rest of the documents sought were not necessary for purposes
of drafting the answering affidavit. The respondent’s
response to this was that the applicant was compelled to deliver all
the documents sought and that the threatened Chamber Book
application
would be opposed. Notwithstanding this, the applicant on 25
August 2016 served a Chamber Book application on
the respondent
seeking an order compelling the delivery of the answering affidavit.
The respondent duly served, within the
time limits set by the Rules,
a notice opposing that application on 30 August 2016. However,
unbeknown to the respondent,
and in contravention of Rule 6(5)(b)
which sets out a period of five days before an application may be
heard on an unopposed basis,
the applicant irregularly was granted an
order compelling the delivery of the answering affidavit on 29 August
2016, two days after
service and filing of the Chamber Book
application. The grant of that Order was irregular. I
find that the Chamber
Book Order should be rescinded as, not only was
the application opposed but the order was granted prematurely.
The rescission
application therefore succeeds.
26.
The second
leg of the respondent’s counter-application is that the relief
sought in paragraphs 2.5, 2.6 and 2.8 above should
be struck out.
I have already found that there no case was made out for the relief
prayed for in paragraphs 2.5 and 2.6 above.
All that remains,
is for me consider whether there is merit to the respondent’s
contention that the applicant is not entitled
to the costs order
sought by her.
27.
The
instances where the Courts have mulched a party with a punitive costs
order are trite and it is unnecessary to repeat same here.
See
the leading authority on the circumstances in which attorney and
client costs may be awarded
AC
Cilliers Law of Costs
published
by LexisNexis Service Issue 33 dated April 2016.
28.
Punitive
cost orders are only granted in limited instances. It is
manifest from the papers that the relationship between the
protagonists in this matter is, to put it generously, unsound.
This might be the cause for this matter having reached this
stage
when, in my view, it should have settled a while back, had cooler
heads prevailed. Be that as it may, I have found
no evidence in
the papers that the respondent’s actions, in either defending
the main application or in bringing the counter
application, were
vexatious, frivolous or met the other tests which would have
justified me granting the relief sought by the applicant.
Consequently, the prayer for a punitive cost order against the
respondent fails. I also find that a punitive cost order
against the applicant is not warranted for the same reasons.
Regarding the issue of costs in general, the applicant, who in
the
main, brought this application to achieve a termination of the joint
ownership, has succeeded in that regard. The respondent
succeeded in his opposition to three of the orders sought by the
applicant and in respect of the Chamber Book application.
However, it was only in the answering affidavit that the respondent
consented to the relief sought in respect of the termination
of the
joint ownership. I therefore think that an appropriate costs
order would be for each party to pay his or her own costs
up to the
date of the delivery of the answering affidavit. The applicant must
pay the respondent’s costs after that date.
29.
I foresee
certain practical difficulties in the implementation of some of the
orders that the parties are in agreement with. The
issues
highlighted hereunder are not clear from the papers nor was
sufficient light shed on them during argument.
30.
How can I
grant an order that the property must be sold within 60 days?
Against whom should that order be made? Who
will be guilty of
contempt of Court if the property is not sold in 60 days? Who
will arrange the sale? Who arranges
and determines the
conditions of sale? If an estate agent gets involved, who
determines her commission and who will be the
conveyancer to affect
transfer? These are issues that are not canvassed in the papers
nor were they raised and ventilated
during argument. In view of
the discretion given to me by the prayer for ‘further
alternative relief’, I have
attempted in my Order hereunder, to
give practical effect to the relief sought.
31.
In the
light of the above, I make the following order:
[1]. The joint ownership
of the parties in the immovable property known as Erf […]
Pinelands, known as […], Pinelands
shall be terminated.
[2]. The respondent must,
within 30 (thirty) days of this order, obtain a valuation of the
property from a registered valuer of
his choice and make it available
to the applicant.
[3]. If the applicant
agrees with the valuation, the amount thereof shall, for purposes of
this order, be deemed to be the market
value of the property.
[4]. If the applicant
disagrees with the valuation then the average of the valuation
obtained by her on 7 June 2016 and the one
to be obtained in terms of
paragraph [2] above shall, for purposes of this order, be deemed to
be the market value of the property.
[5]. The applicant may,
within 10 (ten) days after the market value of the property has been
determined as set out above, inform
the respondent that she intends
to purchase his undivided third share in the property for an
amount equal to one third of
the market value thereof, the full
purchase price to be payable against registration of the undivided
one third share into her
name.
[6]. The respondent,
being the seller of the one third undivided share, shall nominate a
conveyancer to draw up the required documentation
(including a deed
of sale) and to register the one third share into the name of the
applicant. The applicant shall, if applicable,
obtain a release of
the respondent from all obligations he may have under the First
National Bank bond over the property, so as
to enable the one third
share to be transferred to the applicant. The applicant shall pay the
transfer costs and related charges,
including transfer duty.
[7]. If the applicant
does not inform the respondent, within the ten day period set forth
in paragraph [5] above that she intends
to purchase his undivided
third share in the property, she shall place it on the open market
(using the services of an estate agent,
should she so choose). If a
bona fide purchaser is found who is prepared to buy the property in a
cash transaction at a price of
not less than its market value, she
shall nominate a conveyancer to draw up the required documentation
(including a deed of sale)
and to register the property into the name
of the bona fide purchaser. The bona fide purchaser shall pay the
transfer costs and
related charges, including transfer duty.
[8]. The respondent must
sign all documents necessary to implement the sale and transfer of
the property to the bona fide purchaser.
[9]. The applicant is
responsible for payment of the full amount outstanding under the bond
on the property to allow the property
to be transferred to the bona
fide purchaser.
[10]. All costs relating
to the marketing of the property (if any) and to the implementation
of the sale, including, but without
limitation, estate agent's
commission and the costs of obtaining an entomologist’s, an
electrician’s, a gas and/or
beetle certificates, outstanding
rates, taxes, utility bills and such like shall be borne as follows:
-
two thirds thereof by the applicant; and
-
one third thereof by the respondent
and shall be paid by each
of the parties to the conveyancers on being presented with a
statement of account or other proof of the
amount due prior to the
registration of the transfer of the property.
[11]. Any party may on
the same papers, amplified as may be necessary, approach the Court
for further directions.
[12]. The applicant’s
prayer that she is entitled to two-thirds of the sale proceeds after
deduction of the costs set
out in [10] above succeeds.
[13]. The applicant’s
prayer that the respondent’s one third share of the sale
proceeds to be held in Trust pending
the resolution of the dispute
between the parties is dismissed.
[14]. The applicant’s
prayer that she be awarded costs on an attorney and client scale is
dismissed.
[15]. The Chamber Book
Order granted on 29 August 2010 is hereby rescinded.
[16]. Each party shall
bear his or her costs of this application up to the date of the
delivery of the respondent’s answering
affidavit, whereafter
the applicant shall pay the respondent’s costs in this
application, taxed on a party and party scale.
The applicant
shall pay the respondent’s costs in respect of his
counter-application..
---------------------------
CANCA, AJ
Appearances
For
the Applicant
:
Adv T
Smit
Instructed
by
: Wolpe
and Associates
Cape Town
For
the Respondent
:
Dr LJ
van Rensburg
Instructed
by
: Van
Rensburg & Co.
Bergvliet, Cape Town