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[2018] ZAWCHC 19
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L.R v P.R (14/2/2018) [2018] ZAWCHC 19; 2018 (3) SA 507 (WCC) (14 February 2018)
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
REPORTABLE
Case
Numbers: 11463/17
In
the matter between:
L.
R.
Applicant
and
P.
R.
Respondent
JUDGMENT
DELIVERED 14 FEBRUARY 2018
Andrews
AJ
Introduction
[1]
This is an application in terms whereof Applicant
seeks an order that Respondent effect transfer of the immovable
property situated
at […] R. Road Parkland registered in the
names of both Applicant and Respondent, being joint owners in
undivided share,
within 30 calendar days of the granting of an order
to that effect. Alternatively, in the event of the property not being
transferred
within 30 days of such order being granted, the property
is to be sold on public auction within 60 calendar days and the nett
proceeds
from the sale of the property is to be paid over to
Respondent. Applicant also seeks a cost order against
Respondent on an
attorney and client scale.
[2]
The matter was argued on 12 February 2018. Adv. T
Smit appeared on behalf of Applicant and Adv. P Tredoux appeared on
behalf of
Respondent. The ruling in the matter was reserved until 13
February 2018. On 13 February 2018 Respondent brought a Rule 6 (11)
application and judgment was reserved until 14 February 2018.
The
Factual Background
[3]
The parties entered into a Consent Paper which
was incorporated into a Final Decree of Divorce on 18 May 2007. As at
the date of
divorce, the parties were the joint owners of 73 Regent
Road Parklands (hereinafter referred to as “the property”).
The salient terms of clause 4.1 and 4.2 of the Consent Paper included
inter alia
that:
(a)
Applicant would transfer her half share in the
immovable property to Respondent;
(b)
All costs incurred in connection with the
transfer of Applicant’s half-share would be for Respondent’s
account;
(c)
The transfer of Applicant’s half-share
would be carried out by her attorneys of record or an attorney
nominated by her;
(d)
Respondent would procure Applicant’s
release from all obligations in terms of the bond and bear any costs
which may be applicable
in order to do this and in order to register
a fresh bond over the property;
(e)
Until such time as Respondent has procured
Applicant’s release from these obligations he would indemnify
and hold Applicant
harmless against any claims which may be made
against her arising out of the mortgage bond registered over the
property;
(f)
Respondent undertook to forthwith arrange to take
transfer of Applicant’s half-share of the property and agreed
and undertook
to pay all amounts which may be due in respect to give
effect to this clause, to sign all documentation as he may be
required to
sign in order to give effect to it.
Principle
submissions made on behalf of the parties
[4]
According to Applicant, Respondent had in
February 2008, agreed to place the property on the market, in order
to give effect to
the court order, but same did not materialise. It
is common cause that in and during December 2008, Nedbank obtained
judgment against
both parties pursuant to foreclosing and subsequent
proceedings instituted as a result of the parties’ failure to
pay their
bond instalments. The Applicant claimed that
Respondent leased the property to third parties, but failed to pay
the utility
bills in respect thereof.
[5]
The Respondent claims that Applicant is
responsible for his failure to comply with the terms of the Consent
Paper as Applicant failed
to pay him sufficient maintenance after the
divorce. According to Respondent, he had to shoulder the burden of
raising the children
and carried the responsibility of paying the
school fees.
[6]
Applicant contends that it is improbable that
Respondent would qualify for the bond as final approval is
conditional upon a number
of criterion which includes
inter
alia
:
(a)
Credit assessment;
(b)
Valuation of property and
(c)
Deposit being paid / secured.
[7]
Applicant submitted that it is unlikely that
Respondent would overcome these hurdles and secure a bond because of
the judgment which
was taken against him. Furthermore, Respondent
contends that the proposal made by Respondent is a delaying tactic as
he has had
approximately 10 years to procure the necessary funds and
requisite documentation in order to give effect to the Divorce Order
and transfer the property.
[8]
Respondent now seeks an indulgence of 3 months
for the transfer to be finalised. Respondent submitted that would be
required to
give his existing bond-holder the requisite 3 month
notice as early cancellation would evoke a penalty in the sum
of R30
000.00, which Respondent says, would exacerbate his financial
position and cause him to suffer extreme hardship.
Discussion
[9]
Respondent does not deny that he failed to comply
with the terms of the Consent Paper for the past 10 years.
Respondent’s
contention that Applicant is to blame for his
failure is however without merit as the parties agreed on the monthly
maintenance
amount as encapsulated in the Consent Paper. Applicant
rightfully points out that if the maintenance amount was
insufficient, Respondent
could have approached the court for an
increase. It would appear however, that Respondent opportunistically
seeks to shift the
blame to the Applicant, as he had an opportunity
in 2008 to sell the property. Applicant claims that the property was
in fact marketed
but the sale was not realised due to the refusal by
Respondent to have the property marketed at the price suggested by
the estate
agent.
[10]
It was pointed out by Applicant that Respondent’s
contentions are fraught with contradictions and unrealistic promises,
aimed
at further delaying the matter. Some of the contradictions
highlighted were that Respondent was unable to submit an application
for a loan as he was awaiting the completion of his financial
statement before he could apply which juxtaposes the fact that he
has
now applied for a loan which has in principle been approved; the ‘in
principle approval’, “not being worth
the paper it is
written on”, according to Counsel for Applicant. It is very
clear from the pre-approval documentation that
his final approval is
subject to credit clearance. Apart from this challenge, Respondent
proposes that an order be taken to afford
him the opportunity to
finalise the bond approval procedure which may or may not be
successful.
[11]
Applicant’s contended that there was no
certainty in Respondent’s proposal, and argued that the said
proposal
was a delaying tactic in order to afford Respondent
more time to the prejudice of Applicant. Respondent had to “forthwith
arrange to take transfer” according to the agreed terms of the
Consent Paper. It has to be borne in mind that Respondent
has
been afforded almost 10 years within which to give effect to the
order. In my view, Respondent has been given sufficient
leniency and opportunity by Applicant to take the necessary steps and
any further indulgences by this court could certainly be
perceived as
the court enabling Respondent to disregard the terms of a court
order; which terms were agreed to by Respondent. The
de
facto
position is that Respondent does not
have the funds available to make the necessary payment. On the
documents presented by Respondent,
I am of the view that he has
failed to satisfy this court of his ability to fulfil his
undertaking. Neither am I persuaded
on the papers that
Respondent will be in a position to do so in light of the outstanding
valuation and prerequisites. At the time
when the matter was argued,
there was no indication that there is any equity in the property
should Respondent manage to secure
the bond.
[12]
Of further concern is that Respondent proposed
that if the property is to be sold by auction, that the auction be
subject to a reserve
price of R2 600 000.00. This proposed
reserve price is unsubstantiated. No property appraisal was
conducted at the
time of hearing the application. In this regard and
on Respondent’s own version, the property was valued at
approximately
R 1 250 00.00 in 2016. It is improbable that the value
of the property would have doubled since then. I am of the view that
Respondent
has created an unrealistic expectation which would
potentially result in the property not being sold on auction. The
fair, reasonable
market value of the property has not been
determined. In the circumstances, the inclusion of the proposed
clause is inappropriate.
[13]
Additionally, although Respondent contended that
he would not have to pay the deposit amount as set out in the
pre-approval document.
Applicant argued that Respondent will not have
the cash on hand to be able to pay same and there is no certainty
that there will
be sufficient equity in the property to ensure that
there is sufficient surplus to pay the deposit. I agree with
Applicant’s
contention that Respondent produced no evidence to
satisfy the court that he would be able to comply with the conditions
imposed
by the bank.
Conclusion
[14]
I am not
persuaded that the balance of convenience favours Respondent. I am of
the view that any further delay will cause further
prejudice to
Applicant. I find that the delay thus far has been unreasonable and
that Respondent cannot expect Applicant to be
more lenient than she
has already been. Additionally, I am of the view that Respondent has
not raised any defences which
prima
facie
is good in law, to the relief being sought by Applicant. In fact,
what Respondent is requesting, is an indulgence to afford him
more
time. In this regard, I find that a 10 year indulgence was more than
sufficient and that finality should be had to facilitate
the
envisaged ‘clean break’ principle in divorce matters.
It is trite that
the ‘clean break’ principle is based on the premise that
the parties should after the divorce become
economically independent
of each other as soon as possible.
[1]
This principle although generally applied in the context of spousal
maintenance can in my view be extended to circumstances pertaining
to
the proprietary consequences of the parties’ joint estate.
[15]
Pursuant to the application launched in terms of
Rule 6 (11) on 13 February 2018, an additional affidavit was admitted
by agreement
which outlined subsequent developments and sought to
address certain issues which were not clarified on the day the matter
was
argued.
[16]
It came to light that after the court had
adjourned on Monday 12 February 2018, that Respondent received final
bond approval in
the amount of R1 600 000.00. An amount of
R634 220.43 is owing to Nedbank and the arrear rates and taxes
owing to
the City of Cape Town amount to R96 730.00. After
considering all the disbursements there would be a surplus amount of
R898 999.70
according to Respondent’s calculations.
[17]
Respondent also clarified that it was correctly
pointed out by Applicant that Nedbank took default judgment against
both parties
but that this judgment was abandoned by Nedbank in 2011
after he had settled the arrears.
[18]
Respondent argued that it would take just over
three months for transfer to be effected as Nedbank requires 3
months’ notice
of cancellation of the mortgage bond as
mentioned earlier in this judgment. Respondent requested that the
court considers holding
the application in abeyance pending
finalisation of the transfer until 2 May 2018. This proposal was
vehemently opposed by Applicant,
submitting that any postponement
would further delay matter and that the proposed date in May would
signal the 11
th
year since the finalisation of the divorce. I am of the view that the
interest of justice will not be served by allowing a postponement
in
this matter, given the history attached. Furthermore, it is trite
that public interest and the rule of law require finality
in
litigation as the law is not without certainty, more especially in
circumstances where there have been delays which have been
unreasonable
.
Consequently the application for a postponement
is refused.
[19]
Both parties have indicated that the impasse
cannot be settled. I have perused the proposed settlement orders of
both the parties
from which it is clear that the parties are
ad
idem
on most of the issues and that the only
remaining issues in contention evolve around the time period within
which Respondent
is to effect transfer of the immovable property and
costs. Therefore in the exercise of my judicial discretion I
will incorporate
the orders agreed to by the parties and only decide
on the remaining issues in dispute. I wish to add that the terms of
the Consent
Paper which was made an order of court on 18 May 2007,
were agreed to in settlement of any accrual which might have occurred
in
the marriage between the parties.
[20]
I am alive to the fact that Applicant has waited for a
considerable period in order for Respondent to comply with the terms
of the
Final Divorce order and that she is desirous to bring this
matter to a close. On a conspectus of the evidence, it is my view
that
Respondent should be given a reasonable amount of time in order
to take transfer of the property. Whilst Applicant is desirous for
this to happen within 30 days and Respondent has requested a period
of 90 days, I am of the view that a period of 60 days should
be
sufficient time for the transfer of the property to be finalised.
Should Respondent require more time, he will be at liberty
to
approach the court for a further indulgence.
[21]
I am given to understand that the transferring
attorneys have already been paid a sum of R30 000.00 to effect
transfer and
that R10 000.00 is owing to said attorneys in fees.
It therefore follows that the attorneys currently instructed to
attend
to the transfer should continue as the appointment of fresh
attorneys would inevitably further delay the transfer. The only issue
remaining relate to the aspect of costs.
Costs
[22]
Applicant has argued that as Respondent has done
nothing for more than 10 years, and argued that costs should be
awarded on an attorney
and client scale. Respondent argued that as
Respondent has not conducted himself dishonestly, a punitive cost
order would be unnecessarily
harsh. Respondent tenders party and
party costs. Although Respondent tendered the costs occasioned
pursuant to the Rule 6 (11)
application, Applicant argued that costs
should be awarded on an attorney client scale in light of the fact
that Respondent not
only sought to place crucial information before
the court pertaining to developments in the matter since the court
adjourned on
12 February, but sought to use the opportunity to
supplement his papers, which Applicant argued, did not take the
matter any further.
[23]
It is an
accepted legal principle that costs ordinarily follow the result and
a successful party is therefore entitled to his or
her costs. The
general rule is that costs follow the event, which is a starting
point. The guiding principle is that ‘…
costs
are awarded to a successful party in order to indemnify him for the
expense to which he has been put through having been unjustly
compelled either to initiate or to defend litigation, as the case may
be,. Owing to the unnecessary operation of taxation, such
an award is
seldom a complete indemnity; but that does not affect the principle
on which it is based.’
[2]
[24]
In
Nel,
Appellant v Waterberg Landbouwerkers Kooperatiewe Vereniging
Respondent
[3]
,
the following was stated in relation to costs on an attorney
and client scale:
‘
The true explanation of
awards of attorney and client costs not expressly authorised by
Statute seems to be that, by reason of special
considerations arising
either from the circumstances which give rise to the action from the
conduct of the losing party, the court,
in a particular case
considers it just, by means of such an order, to ensure more
effectually that it can do by means of a judgment
for party and party
costs that the successful party will not be out of pocket in respect
of the expenses caused to him by the litigation.
Theoretically,
a party and party bill taxed in accordance with the tariff will be
reasonably sufficient for that purpose. But in
fact a party may have
incurred expense which is reasonably necessary but is not chargeable
in the party and party bill. See Hearle
and McEwan v Mitchell’s
Executor
(1922 TPD 192).
Therefore in a particular case the Court
will try to ensure, as far as it can, that the successful party is
recouped. I say
‘as far as it can’ because there
may be a considerable difference between the amount of the attorney
and client bill
which a successful party is bound to pay to his own
attorney and the amount of an attorney and client bill which has been
taxed
against the losing party …
’
[4]
[25]
It is also
an accepted legal principle that cost is in the discretion of the
court.
[5]
The basic rules were
stated as follows by the Constitutional Court in
Ferreira
v Levin NO and Others
[6]
:
‘
The Supreme Court has, over
the years, developed a flexible approach to costs which proceeds from
two basic principles, the first
being that the award of costs, unless
expressly otherwise enacted, is in the discretion of the presiding
judicial officer, and
the second that the successful party should, as
a general rule, have his or her costs. Even this second principle is
subject to
the first. The second principle is subject to a large
number of exceptions where the successful party is deprived of his or
her
costs. Without attempting either comprehensiveness or complete
analytical accuracy, depriving successful parties of their costs
can
depend on circumstances such as, for example, the conduct of parties,
the conduct of their legal representatives, whether a
party achieves
technical success only, the nature of litigants and the nature of
proceedings.’
[26]
I considered granting a punitive cost award in
favour of Applicant, given the history of the delays occasioned by
Respondent in
this matter. However, in the exercise of my
judicial discretion, I am not inclined to make a punitive cost order
as requested
by Applicant.
Order
[27]
In the result, the court having heard Counsel on
behalf of both parties an having read the documents filed of record,
it is ordered
that:
(a)
The Respondent is directed to effect transfer of
the immovable property situated at […] R. Road, Parklands (the
property)
registered in the names of the Applicant and Respondent as
joint owners in undivided share, in accordance with the terms set out
in clause 4.1 of the Consent Paper which was incorporated into a
Final Decree of Divorce granted by Motala J on 18 May 2007 (the
Consent Paper) within 60 calendar days of the date of the granting of
this order.
(b)
The Respondent shall be liable for any and / or
all outstanding amounts which may be due in respect of municipal
accounts, clearance
certificates, outstanding bond amounts, transfer
duties (if applicable), Conveyancing costs and or any other amount
payable in
order to effect such transfer into Respondent’s
name.
(c)
In the event of Respondent failing to effect
transfer of the property into his name within 60 calendar days of the
date of granting
of this order, the property shall be sold on public
auction within 60 calendar days of the lapsing of the 60-day period
referred
to in paragraph (a)
supra
,
and the net proceeds from the sale of the property shall be paid over
to Respondent.
(d)
Respondent shall be liable for the payment of all
costs of whatsoever nature payable by the seller(s) in order to
effect transfer
of the property into the name(s) of the new owner(s)
and shall, in addition thereto be liable for the auctioneer’s
commission,
unless otherwise stipulated in the Deed of Alienation or
Conditions of Auction.
(e)
Any outstanding payments in respect of the
utility bills (water and electricity, rates and taxes, home owner’s
insurance)
shall be deducted from the proceeds from the sale of the
property in accordance with paragraph 4.2 of the Consent Paper.
(f)
It is recorded that the Conveyancing Attorney has
already been appointed in terms of clause 4.1 of the Consent Paper.
The Conveyancing
Attorney is hereby authorised to make such
deductions and or payments, as the case may be, from the proceeds of
the sale of the
property.
(g)
In addition to the aforesaid deductions or
payments, and read with paragraph (c)
supra
,
the Conveyancing Attorney is to retain the sum of R40 000.00 in
trust for the payment of Applicant’s legal costs as
taxed or
agreed with the balance, to be paid over to Respondent.
(h)
The Respondent is ordered and directed to sign
all documentation required to give effect to the aforesaid within 5
(five)
calendar days of receipt of a written request to do so,
failing which the Sheriff or the Registrar of the High Court, Cape
Town
shall be authorised to sign such documentation on the
Respondent’s behalf.
(i)
The Respondent shall pay the costs of this
application, which costs shall include the costs tendered by
Respondent in respect of
the Rule 6 (11) application brought on 12
February 2018.
________________________
P
ANDREWS, AJ
Acting
Judge of the High Court
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case no:
11463/17/2016
In the matter between:
L
R
Applicant
and
P
R
Respondent
CIVIL
JUDGMENT - ‘CLEAN BREAK’ EXTENDED TO PROPRIETARY
CONSEQUENCES
JUDGE:
Andrews AJ
JUGDMENT
DELIVERED BY:
Andrews AJ
FOR
APPLICANT:
Adv. T Smit
INSTRUCTED
BY:
Wolpes Inc.
FOR
RESPONDENT:
Adv. P Tredoux
INSTRUCTED
BY:
Cornell Stander Attorneys
DATES
OF HEARING:
12 and 13 FEBRUARY 2018
DATE
OF JUDGMENT:
14 FEBRUARY 2018
[1]
Van Zyl, L
‘
Handbook
of the South African Law of Maintenance’
2
nd
Ed, Lexis Nexis page 27.
[2]
Cilliers
AC ‘
Law
of Costs
’
Butterworths page 1-4;
Agriculture
Research Council v SA Stud Book and Animal Improvement
Association and Others
;
In re:
Anton
Piller and Interdict Proceedings
[2016] JOL 34325
(FB) par 1 and 2;
Thusi
v Minister of Home Affairs and 71 Other Cases
(2011) (2) SA 561 (KZP) 605-611.
[3]
1946 AD 597
at 608.
[4]
Cadac
(Pty) Ltd v Weber Stephen Products Co and Others
[2011]
1 All SA 343
(SCA) at para 24, also reported at
2011 (3) SA 570
(SCA);
Jeebhai
and Others v Minister of Home Affairs and Another
(139/08)
[2009] ZASCA 35
;
[2009] 3 All SA 103
(SCA), where, in a dissenting
judgment, Cameron and Cachalia JJA, suggested that the
non-compliance with the Court’s rules
could be dealt with by
means of a punitive costs order. See also
Gauteng
Gambling Board and Another v MEC for Economic Development: Gauteng
Provincial
Government
Corporation Ltd (01563/2012) [2012] ZAGPJHC (8 May 2012)
,
where on appeal, the respondent was ordered to pay the costs of the
application on the attorney and client scale.
[5]
Ibid
page 2-16(1);
Fusion
Hotel and Entertainment Centre CC v eThekwini Municipality and
Another
[2015]
JOL 32690
(KZD) ‘
[12]
It is common cause that in this matter the issues at hand remained
undecided and the merits were not considered. When the
issues are
left undecided, the court has a discretion whether to direct each
party to pay its own costs or make a specific order
as to costs. A
decision on costs can on its own, in my view, be made irrespective
of the non-consideration of the merits. I am
stating this on the
basis that an award for costs is to indemnify the successful
litigant for the expense to which he was put
through to challenge or
defend the case, as the case may be…’
[6]
[1996] ZACC 27
;
1996
(2) SA 621
(CC) at 624B—C (par [3]).