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[2013] ZAGPJHC 174
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Steyn v Viljoen and Others (1866/2010) [2013] ZAGPJHC 174 (17 July 2013)
NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
)
CASE NO
:
1866/2010
DATE
: 2012-02-09
DATE:17/07/2013
In the matter between
JOEY
SUZETTE
STEYN
.......................................................................
Applicant
and
GREGORY
VILJOEN
.....................................................................
1st
Respondent
ABSA BANK LTD
….....................................................................
2
nd
Respondent
REGISTRAR OF DEEDS, JOHANNESBURG
….....................
3
rd
Respondent
J U D G M E N T
C. J. CLAASSEN J
:
I have a notice of set down in terms of rule 6(5)
to argue for the payment of the costs of an application which was
settled. In
the notice, the first respondent, Mr Gregory Viljoen, is
indicated as being the person to be held responsible for paying the
costs.
The main application was instituted on 9 March
2010 wherein the applicant, Ms Steyn, sought an order against Mr
Viljoen, Absa
Bank and the Registrar of Deeds, to transfer a certain
immovable property into the name of the applicant. In the body of
the
founding affidavit, reference is made to the written deed of
sale which was concluded between Mr Viljoen as the seller and Ms
Steyn as the purchaser. In paragraph 33 of the founding affidavit of
the main application, Ms Steyn undertook to pay the balance
outstanding of the purchase price secured by a bank guarantee as
provided for in the agreement.
It is common cause that an amount of R10 000 was
paid in cash, leaving a balance of R130 000 which was to be secured
by a bank
guarantee. In the answering affidavit of the main
application, the first respondent took the point that there is no
tender of
the balance in the notice of motion. In my view that is
not a valid point as the body of the founding affidavit, paragraph
33
contains such a tender.
Ultimately the property was transferred into the
name of the applicant. However, what is now outstanding is to decide
who is to
be liable for the payment of the application brought by Ms
Steyn for the transfer of the property. The first respondent denies
liability for such costs, relying on a letter which was sent by his
attorney of record on 5 March 2010. It is common cause that
the
letter incorrectly refers to the balance of the purchase price as
R140 000.
The important paragraph is as follows:
“
The First Respondent hereby
without prejudice tenders transfer of the property to the Applicant
upon payment of the R140 000.00
plus arrears on occupational
rent at the agreed rentals of R2 300.00 and R1 300.00
respectively to be calculated, plus
all the electricity consumed on
the premises during the period of the Applicant’s occupation,
also to be calculated from
vouchers in the First Respondent’s
possession.
The offer is open for acceptance and
the furnishing of guarantees for payment of the above amounts until
15
th
March 2010.”
Within five days in a letter dated 10 March 2010,
the applicant’s attorney of record accepted the offer, but
indicated that
the balance was R130 000 and not R140 000. He
also requested a statement supported with vouchers regarding the
outstanding
amounts, I presume in regard to the question of arrear
occupational rentals, electricity, etcetera.
The first respondent now adopts the attitude that
the acceptance of the offer in the letter of 5 March 2010
constituted a compromise
which also included payment of the costs of
the main application. In my view there can never be a compromise
when one party accepts
payment of the entire amount claimed by the
other side, more so there can be no compromise of the delivery of
property which
is not separable or which is indivisible.
In this case the settlement referred only to the transfer of the
property against the supply of guarantees for the balance and
payment of the arrear occupational rental, electricity and rates and
taxes. Nothing was contained in the letter containing the
offer of
costs of the application. In my view that cannot consist a
compromise which included the question of who is to pay the
costs of
the main application.
In my view the cost should normally follow the
result. The result in this case was that the applicant was
successful in obtaining
transfer of the property as a result of the
application. I cannot find that the so-called offer and acceptance
was in full and
final settlement, including the question of costs.
I therefore order that the first respondent pay
the cost of the main application, including the costs reserved on 7
December 2011.
DATED THE 17
th
DAY OF July 2013 AT JOHANNESBURG
____________________________
C. J. CLAASSEN
JUDGE OF THE HIGH COURT
Counsel on behalf of the Applicant: Adv D. J. Smit
Counsel on behalf of the Respondents: Adv S. M.
Katsew
Attorney on behalf of the Applicant: Leon J. J. van Rensburg
Attorneys
Attorney on behalf of the Respondent: H Miller Ackermann &
Bronstein Attorneys
Argument was heard on 9 February 2012