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[2013] ZAGPJHC 90
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C v JVV (1757/2013) [2013] ZAGPJHC 90 (23 April 2013)
SAFLII
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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NO:
1757/2013
In the matter
between -
C
E T (previously J V V)
Applicant
and
J V V W M
Respondent
Heard: 27 February
2013
Delivered: 23 April
2013
Summary: Stay of
ejectment order. Applicant seeking ejectment order when she did not
comply with the order of the Court herself.
JUDGMENT
MOLAHLEHI J
[1]
This
is an application in terms of which the applicant seeks an order
staying the warrant of the ejectment which was issued by the
Registrar of this Court under case number 15475/2010, on 14 January
2013.
[2]
The
applicant did not pursue the prayers to have the warrant of ejectment
set aside and the alleged contempt of Court order by the
respondent.
Background facts
[3]
The
parties in the present matter are former husband and wife whose
marriage was dissolved by this Court on 29 August 2011 under
case
number 15475/2010. The parties were married out of community of
property with the inclusion of the accrual system. On the
same day
that the order of separation was made the parties concluded an
agreement, the purpose of which amongst other things was
to deal with
the division of the accrued estate.
[4]
In
terms of the settlement agreement the parties agreed that the
applicant and the minor children would be entitled to occupy the
matrimonial house until such time that it was sold and the purchaser
required occupation thereof or the registration of the property
into
the name of the purchaser was effected by 31 December 2012, whichever
of the date occurs first.
[5]
The
agreement further provides under clause 7.9 that:
“
Notwithstanding
that the registration of the transfer of the property may not have
been effected into the name of the purchaser
prior to the 31 December
2012 and/or notwithstanding that the purchaser does not require
occupation of the property by 31 December
2012, the Defendant
(applicant in the present application) shall nevertheless vacate the
property unless the Plaintiff agrees to
extend her right to occupy
the property in writing."
[6]
The
other important clause for the purpose of this judgment is that the
respondent was made responsible for the payment of the bond
until the
property was registered in the name of the purchaser or until 31
December 2012, whichever occurs first. The applicant
would only be
responsible to contribute 50% towards the cost of the mortgage bond
instalments on two conditions being:
a.
if
the property was not yet register in the name of the purchaser by 31
December 2012; and
b.
in
the event the applicant continue occupying the property from 1
January 2013.
[7]
Another
important term of the agreement for the purposes of this judgment is
that the respondent was made responsible for effecting
certain
repairs on the property which included electrical repairs,
waterproofing, plastering and painting. The respondent was in
this
regard required to cause the repairs to be effected at his own costs
and within two months after the granting of the decree
of divorce. In
this regard clause 7.13 of the agreement provides as follows:
" . . . The
Plaintiff will be the sole determinator as to whether or not the
repairs have been adequately carried out. Should
there be any dispute
between the parties regarding the Plaintiff's access to the property
or the access of his contractors or any
other matter arising from
this paragraph, then and in that event the matter shall be
expeditiously determined by a Senior Counsel
at the Johannesburg Bar
on written submissions made by both parties and without evidence."
[8]
In
addition and as appears from the above clause, the agreement made
provision for the resolution of disputes that could arise between
the
parties. In this respect the agreement provides for the appointment
of a member of the Johannesburg Bar, as a referee on any
dispute that
would arise between the parties.
[9]
The
dispute between the parties in this matter arose from the ejectment
order issued by the Registrar. The ejectment order was made
following
the settlement agreement which had been made an order of the Court.
[10]
The
crisp issue for determination in this matter is whether the ejectment
order issued by the Registrar was prematurely made. The
applicant
contends that the ejectment order was prematurely made for the
following reasons:
1. The respondent
had not yet repaired the house as required by the Court order.
2. The respondent
has not appointed a member of the Johannesburg Bar to resolve
the issue of the property in terms of
the Court order
3. The respondent
made certain proposals on 17 January 2013 and then on the 18 January
2013, threatened her with ejectment.
Evaluation/analysis
[11]
It
is apparent that the key reason for the refusal to evacuate the
property by the applicant is because the respondent has, as alleged,
not effected the repairs on the property in terms of the Court
order. The first point that needs to be made in relation to
the
applicant’s application is that she is seeking the intervention
of the Court which order she did not comply with. The
applicant does
not dispute having failed to pay the 50% of the bond instalment for
the matrimonial home. The applicant was ordered
by the Court on 5
February 2013 to make the 50% contribution towards the bond payment.
In my view the applicant’s application
should on this basis
alone fail.
[12]
The
second reason why the applicant’s application stands to fail is
because it is very clear from the Court order that she
was to
evacuate the property by the end of December 2012. Whilst it is
correct that the respondent was ordered to effect repairs
to the
property within two months from the date of the dissolution of the
marriage, it was not a condition precedent for the applicant
to
evacuate the property.
[13]
In
any case the contention of the respondent in the answering affidavit
that the repairs to the property were effected has not been
disputed
by the applicant. The respondent produced proof of payment for the
repairs which has not been disputed by the respondent.
[14]
In
the replying affidavit the applicant contends that the repairs were
not properly done. She however, provides no evidence to substantiate
this allegation. In any case even if that was the case it would
appear from the proper reading of the Court order that the respondent
was the one to determine whether or not the repairs were properly
done.
[15]
The
question of what was said by the respondent on both the 17 and 18
February 2013, is for the purpose of determining issue before
this
Court, irrelevant. What is relevant is that the warrant of ejectment
was issued in accordance with an enfoerceable Court order.
It has
already been pointed out earlier that the applicant had to evacuate
the premises by the 31 December 2012. The only person
who could
authorise the stay beyond 31 December 2012 was the respondent. The
contention of the respondent that he did not authorise
the applicant
to stay in the property beyond 31 December 2012 has not been disputed
by the applicant.
[16]
In
my view that applicant has not made out a case justifying
interference by this court with the ejectment order issued by the
Registrar.
The order
[17]
In
the premises, the applicant’s application is dismissed with
costs.
E MOLAHLEHI
ACTING
JUDGE OF THE SOUTH
GAUTENG
JOHANNESBURG
Appearances:
For the Applicant: Adv L
Matthysen instructed by Boela Van Der Merwe Attorneys
For
the Respondent: Adv F Bezuidenhout instructed by Shaheed Dollie
Inc.