About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2013
>>
[2013] ZAGPJHC 103
|
|
W and others v W (2010/10620) [2013] ZAGPJHC 103 (18 March 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT REPORTABLE
REPUBLIC OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE NO:
2010/10620
DATE:18/03/20132
In the matter between:
W
:
T
..........................................................................................
First
Applicant
W
: T N
O
...................................................................................
Second
Applicant
W:
N N
O
....................................................................................
Third
Applicant
W
: C N
O
...................................................................................
Fourth
Applicant
D
:
J
.............................................................................................
Fifth
Applicant
P
: S N O
…................................................................................
Sixth
Applicant
and
W
: HB
…...................................................................................
Respondent
(born G)
JUDGMENT
This is an application for leave to appeal against the judgment
delivered on 12 June 2012. The Applicants applied for leave
to
appeal by way of notice on 26 June 2012. There were endless
problems in arranging a date for the matter to be heard. The
matter
eventually proceeded on 18 October 2012.
During the course of the
argument, the parties were urged to settle the matter. It was even
made known to them that judgment
would be reserved in this
application give them a further opportunity to settle this matter.
They have, however, failed to do
so.
The application for leave to appeal concerned essentially the
following six issues:
G’s maintenance;
The usufruct;
Second to Sixth Applicants being held to be in contempt of a Court
Order;
Repatriated funds;
Reimbursement of computer repairs and plumbing repairs; and
Costs.
G’s maintenance
This was dealt with in
paragraphs 10 to 44 of the judgment on the merits.
The First Applicant unilaterally claimed the amount that he had
previously paid by paying the Respondent an amount in respect
of
board and lodging for the ………..nights that G
spent in her household.
This unilateral change to the
amount that had been paid in respect of G’s maintenance was
based upon the fact that G had
reached the age of majority and on
the advice of unnamed Senior Counsel.
As detailed in paragraph 27 of
the judgment on the merits, the Applicant [which one] described this
payment as a
“reimburse
of payment for Gs residential board and lodging costs”
.
Having described this payment as being reimbursement payment, it is
quite clear that the First Applicant was aware that it was
in
respect of monies owed to the Respondent for the cost incurred of
maintaining G.
There is therefore no merit in the application for leave to appeal
on this point.
The usufruct
This is dealt with in paragraphs 45 to 63 of the judgment on the
merits.
The crux of this issue was whether the First Applicant was liable to
pay the transfer duty in respect of the registration of
the
usufruct.
Despite the agreement, which was
made an Order of this Court having stated unequivocally that the
First Applicant was to bear
the costs, the First Applicant, on the
advice of the unnamed Senior Counsel, contended that transfer duties
were a tax and therefore
not part of the costs.
The First Applicant further
contended that the bond holder of the property, First National Bank,
had declined to register a usufruct
over the property because it
would negatively influence the security value as well as the market
ability of the property.
In essence, therefore, the First Applicant’s defence for his
failure to register a usufruct was one of relying upon legal
advice
and the impossibility of performance due to the bond holder’s
refusal.
The Respondent, on the other
hand, contended that First National Bank had not refused to consent
to the registration of the usufruct
and that the First Applicant’s
obligation remained to provide First National Bank with security for
their interest in the
property.
In relation to the contention
that the payment of transfer duties does not form part of the costs
associated with the registration
of the usufruct, there is no
prospect of another court coming to a different conclusion.
There is therefore no basis to grant leave to appeal in this regard.
The finding that the Second to Sixth Applicants were in contempt
of the Court Order
This issue is dealt with in
paragraphs 3, 6 and 92, 103 and 109.6 to 109.8 of the judgment on
the merits.
Having signed the agreement ………………
had known that it would be made an Order of Court,
but therefore
failing to comply therewith, the Second to Sixth Applicants are in
fact in contempt of the Court Order.
There is thus no merit to this
argument in support of an application for leave to appeal as there
is no possibility of another
court coming to a different conclusion
in this regard.
The repatriated funds
This is dealt with in paragraphs
64 to 85 of the judgment on the merits.
In relation to these funds, the ……………….unilaterally
imposed various conditions to such
payment and conceded having made
a calculation error.
The Respondent contended that the payment of this money is
unconditional and could not be related to any other terms of the
agreement.
At the end of the day, the First
Applicant remained indebted to the Respondent in the revised amount
of R9 702.45, and despite
having signed the agreement which was made
an Order of Court, failed to comply therewith.
In the circumstances, there is no merit to this basis for leave to
appeal.
The computer and plumbing repairs
This is dealt with in paragraphs 86 to 89 and 90 to 102 of the
judgment on the merits.
There is no dispute that these amounts were unilaterally deducted by
the First Applicant from the amount due in respect of maintenance
and not paid by either the First Applicant or the Second to Sixth
Applicants.
In the circumstances, there is no merit in this argument for leave
to appeal.
Costs
The general rule being that
costs follow the result unless there is a justification for ordering
otherwise, there is no merit
on this basis for leave to appeal.
Order
Having regard to all of the
above detailed factors and having reconsidered this matter, in order
to determine whether there is
a reasonable prospect of success on
appeal, there is unfortunately no such prospect of success and leave
to appeal ought to be
refused on all of the above detailed grounds
and costs ought to follow the result.
I therefore make the following Order:
Leave to appeal is refused; and
Applicants are to pay the costs
of this application for leave to appeal, jointly and severally, the
one paying the other to
be absolved from such payment.
_____________________________________
L M HODES S.C
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
18 March 2013