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[2014] ZAGPJHC 305
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Callia v Mayne (2014/10561) [2014] ZAGPJHC 305 (31 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO. 2014/10561
DATE:
31 OCTOBER 2014
In the matter
between:
DOUCAS,
CALLIA
.....................................................
Applicant
And
MAYNE, PATRICK
DOUGLAS
................................
Respondent
JUDGMENT
NOCHUMSOHN AJ
1. This is an
application for an Order:
1.1. Declaring the
respondent's cancellation of the sale agreement concluded between the
applicant and the respondent in respect
of the Remaining Extent of
Erf 33, Linksfield North to be invalid;
1.2. Directing the
respondent to take all steps necessary to effect transfer of the
aforesaid property to the applicant;
1.3. Directing the
sheriff of the court to take all steps necessary to enforce the terms
of such Order, including the signature
of all and any documents
necessary to give effect to the transfer of the property by the
respondent to the applicant.
2. It is common
cause between the parties that:
2.1. on 26 June
2011, at Linksfield the applicant and respondent concluded a written
sale of land agreement in terms of which the
applicant agreed to
purchase from the respondent, who agreed to sell to the applicant,
the property comprising the Remaining Extent
of Erf 33, Linksfield
North, at an agreed purchase consideration of some R3 280 000.00;
2.2. The Agreement
of Sale provided for:
2.2.1. the payment
of a deposit of R680 000.00 with the balance of the purchase price to
be paid against registration of transfer
and to be secured by
banker's guarantees;
2.2.2. The granting
of a loan to the applicant in the amount of R2 600 000.00, against
the security of a first mortgage bond to
be passed over the property,
which loan was to be granted within a period of thirty days from the
date of sale (vide paragraph
3);
2.2.3. The said R2
600 000.00 to be paid against transfer, secured by guarantees and
delivered by no later than thirty days after
the bond had been
granted (vide paragraph 2.2);
2.2.4. The purchaser
having been supplied "with a copy of SG Plan No. 12331/1997
attached thereto and had been made aware that
the occupants of the
property on Portion 1 of Erf 33 were vested with a registered right
of way through the driveway, as indicated
on the site plan to allow
access to Portion 1 of Erf 33";
2.2.5. Transfer to
be effected within a reasonable time after the purchaser had complied
with the terms of clause 2 but not later
than the date in clause 2.2
(vide paragraph 6);
2.3. An Addendum to
the Agreement was concluded between the parties upon 31 March 2012,
annexed to the Founding Affidavit as Annexure
"FA4". As
its terms are vital to this judgment, I paraphrase its material
content, which provided:
2.3.1. The
respondent owned Erf 33 Linksfield North, measuring 4,956 as
reflected on SG Diagram 12331/1997;
2.3.2. The
respondent had subdivided Erf 33 into Portion 1 of Erf 33 and the
Remaining Extent of Erf 33;
2.3.3. The
respondent had sold Portion 1 of Erf 33 to one Rikki Dworcan
("Dworcan") on 15 December 2006 and transfer in
respect
thereof was registered upon 18 October 2007;
2.3.4. Portion 1 of
Erf 33 was transferred to Dworcan subject to a right of way servitude
in the title condition that "the
property hereby transferred is
entitled to a servitude of right of way over the Remaining Extent of
Erf 33 as shown by the figure
ABCDEA on SG Diagram on 12332/1997";
2.3.5. At the time
of sale of Portion 1 of Erf 33 to Dworcan it was agreed in an
Addendum dated 15 December 2006 and an Addendum
dated 25 March 2007
between the respondent and Dworcan that the transfer of Portion 1 of
Erf 33 be effected in terms of Diagram
12331/1997 and the aforesaid
Right of Way Servitude shown on Diagram 12332/1997, notwithstanding
that the aforesaid right of way
is incorrect (my emphasis);
2.3.6. The correct
right of way servitude for the driveway is a 9 metre width driveway
on the west side of the Remaining Extent
of Erf 33 up to the boundary
of the existing flat and thereafter the driveway is 4.5 metres wide;
2.3.7. It was
further agreed between the respondent and Dworcan that the correct
Right of Way Servitude Diagram would be obtained
and would be
registered against their respective title deeds;
2.3.8. This was not
done by the respondent and Dworcan at the time and THE PARTIES (my
emphasis ) wished to rectify the situation;
2.3.9. The
respondent, in January 2012, with the approval of Dworcan and the
applicant, instructed Mr Mario Di Sicco, a town-planner,
to attend to
the amendment and correct positioning of the right of way servitude
for the driveway and to instruct a land-surveyor
to attend to and
obtain an amended SG Diagram for registration against the title
deeds;
2.3.10. As between
the respondent and applicant, the respondent would bear all of the
costs in connection with the matter, the new
Servitude Diagram, the
cancellation of the registered Right of Way Servitude, the
registration of the new servitude and the rectification
of the title
deeds of Portion 1 of Erf 33 as well as the Remaining Extent of Erf
33;
2.3.11. The transfer
of the Remaining Extent of Erf 33 from the respondent to the
applicant would, "as far as may be possible,"
(my emphasis)
be registered simultaneously with the cancellation of the existing
servitude and registration of the new servitude
over the Remaining
Extent of Erf 33, in favour of Portion 1 of Erf 33;
2.3.12. The parties
recorded that the transfer of the property from the respondent to the
applicant would be delayed pending the
correction of the servitude
set out. It was recorded further that the Agreement continued to
remain of full force and effect and
that the full purchase price for
the property had been secured, all transfer costs paid, the transfer
duty paid and all documents
signed. The parties agreed to
co-operate in signing any documents that may be required to be signed
in relation to the correction
of the servitude;
2.3.13. Unless all
the terms and conditions had been complied with, the Addendum would
be subject to review upon 31 July 2012, whereafter
should both
parties be in agreement, the time frame would be reviewed.
3. The servitude of
right of way over the property sold, qua servient tenement, in favour
of the contiguous property, Portion 1
of Erf 33 Linksfield North, qua
dominant tenement, was reflected on an incorrect portion of the
Remaining Extent, when, de facto,
upon the ground, the actual right
of way was being exercised upon the western boundary. Hence, the
need arose to correct such
error, this being the manifest purpose of
the aforesaid Addendum.
4. No fault can be
imputed to the applicant for the aforesaid error, as same was clearly
not of his making. It can only be for
this reason that the
respondent undertook to bear all the costs of fixing the servitude
error, in the Addendum.
5. I agree with the
submissions made by Mr Pye on behalf of the applicant that the
Addendum stands as an agreement, separate and
divisible from the main
agreement of sale. I do not share the view bargained for by Mr West,
for the respondent, in argument,
to the effect that it is immaterial
as to whether or not the Addendum is divisible from the main
Agreement. There is nothing
to suggest that the rights and
obligations which flow from the Addendum inextricably connect to the
rights and obligations flowing
from the main Agreement. I therefore
find that same is divisible and capable of separation.
6. The sole link
between the Addendum and the main Agreement is that the Addendum
speaks to the correction of the error in relation
to the creation of
the aforesaid Servitude of Right of Way. It was envisaged between
the parties and recorded as such in paragraph
number 5 of the
Addendum that "the transfer of the property from the seller to
the purchaser shall be delayed pending the
correction of the
servitude as set out above." The prior paragraph, paragraph
number 4 reads ”the transfer of Remaining
Extent of Erf 33 from
the seller to the purchaser, shall, AS FAR AS MAY BE POSSIBLE, be
registered simultaneously with the cancellation
of the existing
servitude and registration of the new servitude over the Remaining
Extent of Erf 33 in favour of Portion 1 of Erf
33."
7. The latter
provisions of the Addendum put paid to Mr West's submissions in
argument for the respondent, that barring the Addendum,
the transfer
was to be registered within thirty days beyond the date of bond
grant, in accordance with paragraph 6 as read with
paragraph 2.2 of
the main agreement. The fact remains that the Addendum superseded
the latter terms and irrespective as to whether
or not the Addendum
lapsed upon 31 July 2014, by that time, the time period provided for
in paragraph 6 as read with 2.2 of the
main agreement had long since
passed and had been effectively sterilised by operation of the
Addendum.
8. Mr West submitted
in argument that the Addendum is of no import and does not serve to
create any rights or obligations, suggesting
that same merely serves
as a recordal of the events which had transpired. I find that there
is no scope or application for such
argument. Whilst the Addendum
has been inelegantly drafted, its meaning and intention is crystal
clear. Read as a whole, rather
than piece-meal, bit by bit, the
overall import of the Addendum is such that the respondent would
attend to the correction of the
errors in relation to the servitude
and that transfer would be passed to the applicant, simultaneously
with the correction of such
errors.
9. Notwithstanding
the inelegant draftsmanship and contrary to Mr West's submissions, I
find that the obligation created by the
Addendum is for the
correction of the errors relating to the servitude and that such
obligations, are the obligations of the respondent.
Conversely, the
reciprocal rights embodied in the Addendum, are the rights to receive
transfer of the property, simultaneously
with the correction of the
errors relating to the servitude. Such rights vest in the
applicant. This was the sole purpose of
the Addendum. Mr Pye
correctly referred me to the judgment of Ekurhuleni Metropolitan
Municipality v The Germiston Metropolitan
Retirement Fund
2010 (2) SA
498
(SCA) at paragraph 13, which reads:
”The principle
that a provision in a contract must be interpreted not only in the
context of the contract as a whole, but
also to give it a
commercially sensible meaning, is now clear. It is the principle
upon which Bekker N.O. was decided and more
recently, Masstores (Pty)
Ltd v Murray & Roberts (Pty) Ltd was based on the same logic.
The principle requires a court to
construe a contract in context,
within the factual matrix in which the parties operated."
10. I thus reject
out of hand the submissions bargained for by Mr West to the effect
that the Addendum does not embody any rights
or obligations.
11. Thus, the right
to have insisted upon the simultaneous transfer and correction of the
error, was clearly the right of the applicant
as he alone would bear
the prejudice of transfer without the simultaneous correction.
Therefore such right was the applicant's
right to waive, as he has
done.
12. It is clear from
the papers that the correction of the aforesaid servitudes has to
date not taken place. The reason why transfer
has not been passed
to the applicant in all of this time, arises out of the applicant's
refusal to have taken transfer, without
the implementation of the
terms of the Addendum, as was the applicant's clear right.
13. It is equally
clear that the implementation of the terms of the Addendum is fraught
with conveyancing complexities none of which
can be imputed to the
applicant. Whilst I am not called upon to make any findings to the
enforceability of the Addendum, my observations
are that the onus
rests fairly and squarely upon the respondent, contractually, to
implement its terms, in one manner or another.
14. Whilst the
applicant had steadfastly refused to take transfer, without the
implementation of the terms of the Addendum, to which
the applicant
was entitled, with a view to now circumventing the difficulties
posed by its implementation, the applicant now seeks
an order for the
transfer, without such implementation.
15. As I have
already found that the Addendum is divisible and separable from the
main Agreement, there is no reason to deny the
applicant the relief
that he seeks, purely by virtue of the difficulties posed by the
implementation of the Addendum.
16. Whilst I am not
called upon by the applicant to make any findings apropos the
enforceability of the Addendum, it appears that
the main thrust of
the respondent's defence arises out of the so-called non-fulfilment
of its terms, by the time period bargained
for therein, being 31 July
2012. The respondent hangs its hat on paragraph 6 of the Addendum
which reads: "Unless all the
terms and conditions have been
complied with, this Addendum will be subject to review on the 31 July
2012. Thereafter should
both parties be in agreement, the time
frame will be reviewed."
17. The main theme
of the defence, set out in the Answering Affidavit, as read with the
letters written by the respondent's attorneys
seems to be that the
obligations under the Addendum had come to an end upon 31 July 2012,
given that its terms had not been implemented
by that date.
18. As I am not
called upon in the application to make any findings vis-a-vis the
enforceability of the Addendum, it is not necessary
for me to draw
any further conclusions in relation thereto.
19. Given the
difficulties posed in correcting the servitude within the specified
time frame, and the reluctance and failure of
the parties to have
mutually extended such time frame, the applicant is vested with the
right to waive the requirement set out
in the Addendum for the
simultaneous registration of transfer together with the cancellation
of the incorrect servitude and re-registration
of a correct
servitude.
20. The applicant
makes it clear in the founding papers, that in making such waiver, he
merely waives the requirement of the simultaneous
registration, but
does not walk away from his rights embodied within the Addendum.
21. In Annexure
"FA8" at page 43 of the Founding Affidavit, the
respondent's attorneys, Gishen Gilchrist Inc, addressed
a letter to
the applicant dated 4 November 2013, the relevant portions of which
read as follows:
"3.
Notwithstanding diligent attempts by our client to procure an amended
SG Diagram, same has not been possible and on the
advice of our
client's town-planner and land surveyor a converse application was
proposed to our client whereby the existing right
of way servitude be
terminated and replaced by a right of way servitude extending along
the western boundary together with the
imposition of three additional
servitudes over the entire property, one of which encumbers the
property in question and two encumber
the adjoining property.
4. This is a
material deviation from the terms of the Addendum which our client is
not prepared to accept or proceed with as, apart
from the substantial
additional costs to register and construct the servitudes in
question, to so proceed would necessitate the
consent of the owner
and mortgagee of the adjoining property, who to date is not a party
to the agreement and who it is doubtful
would lend such consent."
5. The terms of the
Addendum apart from being incapable of fulfilment were also to have
been reviewed on the 31 July 2012 and that
both parties be in
agreement the time frame will be reviewed.
6. In overview and
having regard to the approximate period of delay that now exceeds two
years it is not feasible to proceed in
this matter insofar as:
6.1 Despite the
provisions of paragraph 5 of the Addendum, it is an existing fact
that the Investec mortgage grant is suspensive
upon a correction of
the subdivision of the entire property (a factor neither addressed
nor covered) in either the Agreement of
Sale or the Addendum) and
also in total disregard of the fact that both existing properties
that constitute the subdivision are
presently properly mortgaged and
constituted under a Regulation 38 Consent by the Municipality to the
existing sub-division;
6.2 Our client is
not prepared to extend or amend the terms of the Addendum any further
nor indeed incur any further extensive costs
in this matter.
In the premises our
client is only prepared to proceed with this sale on the basis of the
terms of the existing Agreement of Sale
which provide that you
procure an unconditional mortgage loan or secure the agreed purchase
price. Should you fail to so confirm
your intention to proceed
within ten days of receipt hereof, our client will accept that you do
not want to purchase the property
as viewed by you and presented in
the existing Agreement of Sale and whereupon the Agreement will be
lawfully and properly cancelled
and of no further force or effect
whatsoever."
22. For the reasons
already stated, the content of the above letter, particularly
numbered paragraphs 3 and 4, fall to be rejected
in their entirety,
as the respondent was liable to correct servitude errors, at its
cost, in terms of the Addendum, and in so doing,
it, at that stage,
ought to have considered that the owner of Portion 1 of Erf 33
Linksfield North may have been required to consent
to the correction
of the errors, as would the mortgagee.
23. Whilst the
Addendum confirms that the purchase price has been secured, mention
is made at paragraph 6.1 of the aforesaid Annexure
"FA8" to
the founding papers that the bond grantor, Investec, have granted the
mortgage suspensive upon a correction
of the subdivision of the
entire property.
24. This complaint
is remedied, given the response by the applicant in "FA9"
at page 45 of the Founding Affidavit, in
the letter written by the
applicant's attorney, Shaie Zindel, dated 12 November 2013, paragraph
8 of which reads "that having
been said my client is committed
to the transaction and hereby demands transfer. My client is
prepared to accept transfer with
the new driveway and garden
servitudes referred to in previous correspondence being registered
and the cancellation of the old
driveway servitude. My client's
bankers have indicated that they will honour their bond grant on this
basis and in the event they
do not, my client has sufficient cash
available to defray the purchase price in full."
25. On this point,
Mr Pye correctly sought to amend the Notice of Motion at paragraph
number 2 thereof, so as to read:
"That the
respondent be directed to take all steps necessary to effect transfer
of the aforesaid property to the applicant,
against payment by the
applicant to the respondent of the full purchase consideration of R3
280 000.00."
26. Such amendment
serves to protect the respondent against non-payment and alleviates
the obligation of the respondent to pass
transfer without full
banker's guarantees for the whole purchase price, expressed to be
payable, as against registration of transfer.
27. In "FA10"
at page 48 of the Founding Affidavit, the respondent's attorneys,
Gishen Gilchrist Inc respond by way of
letter on 27 November 2013,
the last three paragraphs of which read:
"Despite
concerted effort by our client, the procurement of the necessary
diagram is not possible without revisiting the subdivision
of the
property, which escalation our client is not prepared to do, both
from a financial and practical point of view.
Furthermore,
paragraph 6 of the Addendum clearly places a time frame for the
completion of the exercise, reviewable on consensus
of both parties.
Our client is not prepared to extend the date any further and
accordingly instructed us to serve our correspondence
dated the 4
November 2013 on your client.
In the premises and
with the absence of our client's consent to extend the terms of the
Addendum, the Agreement of Sale is of no
further force or effect and
consequently legally cancelled, for which purposes this
correspondence serves as due and formal notice
of cancellation."
28. I have already
found that the agreement is separate and divisible from the Addendum,
as both documents are capable of standing
on their own. I have
already found that the applicant was well able to waive his right to
insist upon the simultaneous transfer
of the property into his name,
together with the registration of cancellation of the incorrect
servitude and registration of the
corrected position.
29. There is no
basis for the respondent to have cancelled the Agreement of Sale, as
it did do in Annexure "FA10". I
have already found that
the obligations in the Addendum were those of the respondent and the
applicant cannot be visited with the
problems encountered by the
respondent, in its words "from both, financial and practical
point of view".
30. The issue left
for me to consider, which is not on the papers, and not placed in
counsel's Heads of Argument, but raised by
me during the argument, is
whether or not it is competent to order the transfer of the Remaining
Extent of Erf 33 Linksfield North
from the respondent to the
applicant, knowing that the respondent's existing title thereto is
somewhat tainted and/or defective,
by virtue of the creation of an
erroneous Servitude, which does not accord with the de facto position
upon the ground.
31. In deciding
whether or not to order the transfer sought by the applicant,
consideration must be given to the rights of third
parties, who may
be significantly affected thereby. In this regard, one must place
under the spotlight, the rights of Dworcan,
in his capacity as the
owner of Portion 1 of Erf 33 Linksfield North. In Pretorius v
Slabbert
2000 (4) SA 935
SCA at 939 E it was clear that
consideration must be given to the rights of third parties who may be
affected.
32. Dworcan was not
joined as a co-respondent in the application and neither did he
support the application by way of any evidence.
There are no
allegations made in the founding papers to the effect that Dworcan
supports the relief sought and there is no Confirmatory
Affidavit
from Dworcan. The Founding Affidavit is silent as to whether or not
it is the applicant's intention to respect the
rights of Dworcan in
seeing through the correction of the errors in relation to the
servitude of right of way.
33. There is very
little said in the papers about Dworcan, or, how the parties intend
to uphold and respect his rights. There is
a bleak reference to the
rights of Dworcan in paragraph 10.9 of the Answering Affidavit at
page 62 of the papers, where the respondent
says "I was
transparent in relation to the aforesaid as I was intent on
protecting the rights of the owner of Erf 33 Portion
1 in respect of
the servitude and wanted no misunderstanding in this regard with the
applicant". It is pertinent to note
that at paragraph 12 of
the Applicant's Replying Affidavit, at page 132 of the papers, which
serves to reply to the paragraph in
question, there is no comment
from the applicant in relation to the protection of the rights of
Dworcan.
34. I am thus left
somewhat concerned about the position of Dworcan, as the affidavits
do not speak to his rights, or the manner
in which they are to be
protected, were the relief to be granted. It is of concern to me
that, as things stand, Dworcan may be
vested with rights as against
the respondent, for the correction of the position in relation to
such servitudes, in accordance
with the agreements that Dworcan
entered into with the respondent, and not the applicant.
35. The question
that arises is how Dworcan would enforce any rights that may have
arisen between him and the respondent, contractually,
as against the
applicant, who was not a party to any such agreements with Dworcan,
in the event of an Order being made for the
transfer of the Remaining
Extent. One could not leave Dworcan out in the cold, without a
remedy, if the applicant were to refuse
him a right of way along the
western boundary, coupled with a refusal to correct the errors in the
servitude in the future.
36. As the
Affidavits are silent on this point, one must look to the Addendum
itself at page 36 of the papers, where it is recorded
at paragraph
number 1(c) and 1(d) that the respondent had sold Portion 1 of Erf 33
to Rikky Dworcan on 15 December 2006 and transfer
was registered on
18 October 2007.
37. It is recorded
further at paragraph 1(d) of the Addendum that at the time of sale of
Portion 1 of Erf 33 to Rikky Dworcan, it
was agreed in an Addendum
dated 15 December 2006 and Addendum dated 25 March 2007 (which are
not placed before the court) between
the respondent and Rikky Dworcan
that the transfer of Portion 1 of Erf 33 be effected in terms of SG
Diagram 12331/1997 and the
aforesaid Right of Way Servitude shown on
SG Diagram 12332/1997 notwithstanding that the aforesaid Servitude of
Right of Way is
incorrect. (my emphasis).
38. It thus appears
that Dworcan acquired transfer of Portion 1 of Erf 33, with knowledge
of the error or so called defect in title,
in relation to the
incorrect registration of a servitude. Since the outbreak of these
proceedings, the applicant has likewise
been aware of the position in
relation to Dworcan as well as the rights which vest in him, for the
correction of such errors.
39. As Dworcan
acquired transfer of Portion 1, with knowledge of the defect in
title, his position in real terms, is hardly worsened
by the transfer
of the Remaining Extent to the applicant, if so ordered.
40. Such position
would only be worsened, were the applicant to refuse to co-operate in
the taking of the necessary remedial steps,
for which reason, the
Order which I make below shall be couched in a form akin to a rule
nisi, calling upon Dworcan to show cause
as to why such order should
not be confirmed.
41. Thus, in
circumstances where I have already found that the cancellation by the
respondent of the Agreement of Sale is invalid
in law, on a balance
of convenience, for both applicant and respondent, I ought to grant
the Order transferring the Remaining Extent
of Erf 33 by the
respondent to the applicant, against payment of the purchase price.
Were I to refrain from granting such relief,
for fear of the position
of Dworcan, I would be creating a practical nightmare for both the
applicant, who is entitled to receive
transfer of the property
purchased, as well as for the respondent, who is entitled to receive
the full purchase consideration against
registration of transfer
thereof to the applicant.
42. I have weighed
all of these aspects up in the balance and have concluded that it
would give rise to an absurdity to refuse transfer,
purely as a
result of the failure to have drawn Dworcan into the proceedings, in
circumstances where Dworcan can be drawn in, in
a form akin to a Rule
Nisi Order. I raised this thought with counsel, during argument and
my thinking in this regard was supported
by Mr Pye, for the
applicant.
43. Finally, the
last point which I am compelled to consider, being the very first
point raised by the respondent in the Answering
Affidavit is the
issue of non-joinder of The Standard Bank, in its capacity as the
existing bondholder over the Remaining Extent
of Erf 33. The
respondent submits that the property is bonded in favour of The
Standard Bank and I am therefore precluded from
ordering the
transfer, as the property forms the subject matter of the bank's
security, secured under a registered mortgage bond,
and, to order the
transfer would violate the rights of the bank.
44. The applicant's
response to these allegations, is to be found at paragraphs 9 and 10
of the Replying Affidavit to be found at
page 130 of the papers,
where the applicant correctly avers that the bondholder has no direct
interest in the relief sought and
the mortgagee is always entitled to
prevent transfer of an immovable property, prior to the satisfaction
of the debt owed to it,
with such right existing, as a matter of law.
45. I agree fully
with this submission made by the applicant and agree with the further
submission made in the same paragraph to
the effect that the
mortgagee does not have to be joined in an application to enforce a
sale agreement in order for it to enjoy
such protection.
46. Be that as it
may, the applicant has correctly conceded in the Replying Affidavit,
as aforesaid, that the mortgagee is always
entitled to prevent
transfer of an immovable property prior to the satisfaction of the
debt owed to it.
47. Accordingly, and
for the sake of clarity, the terms of my Order below specifically
disempowers the sheriff from signing any
consents to cancellation on
behalf of The Standard Bank, and, same is subject in all respects to
the respondent obtaining a signed
consent to cancellation from The
Standard Bank, as is the case, in the normal course of events.
I accordingly make
an Order in the following terms:
1. Directing that
the respondent's cancellation of the sale, concluded between the
applicant and the respondent in respect of the
Remaining Extent of
Erf 33, Linksfield North, be declared to be invalid.
2. That the
respondent be directed to take all steps necessary to effect transfer
of the aforesaid property to the applicant against
payment by the
applicant to the respondent of the full purchase consideration for
the property in the amount of R3 280 00.00.
3. That the sheriff
of the above Honourable Court be authorised to take all steps
necessary to enforce the terms of this Order,
to which end, the
sheriff of the above Honourable Court is authorised to sign the Power
of Attorney to Transfer in the name, place
and stead of the
respondent, together with all other transfer duty declarations and
related conveyancing documentation, in the
name, place and stead of
the respondent, should the respondent fail to so sign all of such
documentation within seven days of being
called upon to so sign.
Such documentation as may be signed by the sheriff, in accordance
with this Order, does not include the
signing of a Consent to
Cancellation in respect of any existing mortgage bond registered by
the respondent over the property in
favour of any mortgagee.
4. Within fourteen
days from the date of the handing down of this Order, the Notice of
Motion, Founding Affidavit, annexures, Answering
Affidavit,
annexures, Replying Affidavit, annexures thereto, and this Judgment
and Court Order shall all be served upon Rikki Dworcan,
who shall, if
so desired by him, file an Affidavit within twenty court days from
the date of service of the aforesaid documents
upon him, setting out
the basis of his opposition to the relief granted herein, should he
elect to oppose such relief. In such
event, the applicant and the
respondent shall each be entitled to file affidavits in response to
any such affidavit as may be filed
by Dworcan, within the ensuing
twenty court days thereafter. Dworcan, shall in turn be vested with
the right to file Replying
Affidavits to any such affidavits as may
be filed on the part of the applicant or respondent, within the
ensuing fifteen court
days, whereafter the application may be
re-enrolled for hearing by any one of the parties, including Dworcan.
5. The Order
embodied in paragraphs 2 and 3 above shall operate as an interim
order, pending the filing by Dworcan of an Affidavit
resisting the
relief so granted. Failing the filing by Dworcan of such affidavit
within twenty court days from the date of service
upon him of the
aforesaid documents, such interim order shall be confirmed, to which
end, the applicant shall be required to re-enrol
the application upon
the unopposed motion roll in this court, for an order confirming the
said interim rule.
6. The respondent is
directed to pay the costs of the application, taxed upon the tariff
as between party and party, excluding the
costs of service of the
papers upon Dworcan or any future costs as may be incurred in
relation to any future proceedings as may
be brought by Dworcan, as
envisaged by the terms of this Order.
NOCHUMSOHN, G
ACTING JUDGE OF THE
HIGH COURT
On behalf of the
Applicant: Advocate WB Pye
Instructed by: Shaie
Zindel Attorneys
On behalf of the
Respondent: Advocate H West
Instructed
by: Gishen Gilchrist Inc
Date of Hearing: 29
October 2014
Date of Judgment: 31
October 2014