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[2016] ZAGPJHC 161
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Kruger v Sharpe (2009/012211) [2016] ZAGPJHC 161 (25 May 2016)
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Certain
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REPUBLIC
OF SOUTH AFRICA
OFFICE
OF THE CHIEF JUSTICE
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2009/012211
DATE:
25 MAY 2016
In the matter
between:
KRUGER,
WYNAND
...............................................................................................................
Applicant
And
SHARPE,
KENNETH
RAYDON
.........................................................................................
Respondent
J
U D G M E N T
MBONGWE
AJ
:
INTRODUCTION
[1] This is an
application for an order declaring the respondent’s undivided
half share in an immovable property described
as a unit consisting of
(a) Section No. 6 which is more fully described on S P N. S, in the
scheme known as C T in respect of the
land and building or buildings
situated at M G, Cape Town, measuring 106 square metres in extent
;;
(b) tog
ether with an undivided share in the common
property in the scheme apportioned to the said section in accordance
with the participation
quota as endorsed on the said sectional plan,
held under Deed of Transfer ST which property is situated on the
corner of C B and
R R, C C, M G, Cape Town being Erf 6 M G, C T, in
the Province of the Western Cape, specially executable.
FACTS
[2] The background
facts in this matter are that the applicant instituted action
proceedings against the respondent for payment
of a balance sum of
R 416 838-00 due and owing to him in terms of
a written agreement concluded by and between the parties in February
2009.
The respondent brought a counterclaim
in the sum of R 420 000-00
arising out of an alleged
breach of warranty and consequent damages.
[3]
The matter was set down for hearing on the 23
rd
of February 2012, on which day only the applicant’s claim
was
proceeded with. Judgment
was given in favour of the applicant for payment of the sum of R
416 838-00 together with interest
and costs and the respondent’s
counterclaim was postponed
sine
die
.The Court,
however, suspended the execution of the order in favour of the
applicant pending the determination of the respondent’s
counterclaim.
COSTS
[4]
Prior to the trial of 23 February 2012, there had been
successful
interlocutory
applications brought by the applicant
against
the respondent.
The
costs orders were all in favour of the applicant and amounted in
total, as taxed, in the amount of R 118 826-77.
RESPONDENT’S
INACTION - COUNTERCLAIM
[5]
Since the granting of the judgment in favour of the applicant on 23
February 2012 and the suspension of its execution pending
the
determination of the respondent’s counterclaim, the respondent
made no effort to have his claim prosecuted and occasioned
a number
of postponements when the applicant had set the matter down for
hearing. At some stage the respondent even
brought
an application
purportedly seeking
an
order directing the applicant to furnish security for costs.
This dispite the applicant
being
a South African
and
having already obtained a judgement and costs against the respondent.
Nothing, however,
a
came out of
that application
which the respondent eventually withdrew and tendered
costs.
EXECUTION
OF COUNTERCLAIM
FOR COSTS OWED
[6]
The applicant eventually attached the respondent’s counterclaim
to recover the taxed costs.
This
after the respondent had failed to pay the costs and neither him nor
his attorneys could point out movable
assets belonging to the respondent which could be attached.
HEARING
OF COUNTERCLAIM
[7]
The sale of the respondent's counterclaim
occurred a
few days after
evidence in the respondent’s counterclaim had been heard, and
judgment reserved.
The
counterclaim
was sold by the deputy sheriff to the law firm Thomson Wilkis Inc.
for an amount of R 79 000-00. A sum of
R 71 002-50
was paid to the applicant.
PURPOSE
OF THIS APPLICATION
[
8]
In this application the applicant
seeks an order, in the absence of or the reluctance of the respondent
or his attorneys to disclose
the whereabouts of the respondent’s
movable assets, declaring the undivided share of the respondent in an
immovable property
in Cape Town executable. The application is
opposed.
ISSUES
FOR DETERMINATION
[9] The
issues for determination in this application, taking into
consideration the respondent's basis for opposition, are the
following:
9.1
whether
the suspensive
conditions placed on the executability of the judgment and orders of
the 23
rd
of February 2012
remain extant;
9.
2
whether the respondent’s
co-owner and mortgagee of the property
in
which
the respondent’s
intere
st
is
sought t
o be attached
should
have been joined as necessary parties.
It
is noted that this
aspect was
not raised in the respondent’s papers, but raised by his
counsel from the bar as a point in limine;
9.
3
whether the applicant is precluded
from seeking leave to execute against the immovable property the
taxed costs due to him.
The total costs at this stage amount to
R 234 835-72 and remains unpaid.
.
SUSPENSIVE CONDITIONS
[10] It
is common cause that the suspension of the execution of the judgement
and orders granted in favour of the applicant was
ordered to
safeguard the interests of the respondent in the event that he
succeeded in turn in his counterclaim against the applicant.
The fact
that his counterclaim was attached and sold by the deputy sheriff
invariably means that the respondent no longer has a
counterclaim.
The effect of this, in my view and finding, is that the sale of the
counterclaim marked the automatic upliftment
of the suspensive
conditions. Thus I find that nothing in law precludes the applicant
from executing the order of 23
rd
February 2012 against the respondent. The respondent's contention
otherwise stands to be rejected.
CITATION
OF RESPONDENT'S CO-OWNWER AND MORTGAGEE
[11]
I
have
read
the
heads of argument
s of both
parties
and heard their submissions.
I
agree fully with the
legal basis for the
arguments
and
submissions
made
on
behalf of the applicant
which
gives a comprehensive exposition of the
law and principles applicable in the determination of whether it was
necessary for the applicant
to cite the respondent's co-owner of the
property sought to be attached as well as the mortgagee thereof. I
quote extensively
,
as part of this judgment
from the heads of argument submitted by the applicant's
counsel:
1
1.
(
1
)
Before a party has to be joined as of necessity, it must be shown
that such a party has an interest in the right which is the
subject
matter of the litigation and not merely a financial or an indirect
interest in such litigation (See
Strydrom
v Engen Petroleum Limited
2013 (2) SA 187
(SCA) at par 23 and 24).
I
find that neither the respondent's co- owner nor the mortgagee, if
any, of the property concerned have an interest in the present
proceedings against the respondent and that, therefore, their
citation was not necessary.
The
Applicant simply seeks leave to execute against the Respondent’s
undivided half share and such order will have no effect
upon the
remaining undivided half share owned by the co-owner. It is
well established law that a co-owner can encumber his
undivided
half-share, even in the absence of knowledge or consent of the other
co-owners, and, subject to a specific agreement
between the
co-owners, every co-owner has a right to freely alienate his/her
share of the property without reference to the other
co-owners (See
Bonheur 76 General
Trading (Pty) Ltd v Caribbean Estates (Pty) Ltd
2011 JDR 0182 (SCA) at par 13). Since the application concerns solely
the Respondent’s undivided half share in the immovable
property, the joint o
wner
mere
ly
has a
financial interest
in
the outcome of
the
execution against respondent's half
share and is entitled to bid for that share.
His
joinder is
,
therefore
not necessary.
1
1.
(2)
The joinder of the
bondholder is also not necessary since Uniform Rule 46(5) expressly
provides that no immovable property which
is subject to any
preference shall be sold in execution unless the execu
ting
creditor had advised the
preferent creditor in writing of the intended sale and the latter has
been afforded an opportunity to agree
to a sale with a reasonable
reserve price or a sale without reserve. The bondholder’s
position is therefore secured
without any necessity to be jointed in
the proceedings.
[12] In
light of the findings in this judgement, I conclude that the
applicant is legally entitled to execute against the respondent's
estate in respect of both the judgement of the 23 February 2012 and
the various cost orders he has been granted.
[13] I,
therefore, make the following order:
1. The
respondent's undivided share in the property described in paragraph 1
of this judgment is declared especially executable.
2. The
Registrar of this court is directed and authorised to issue a warrant
of
execution in terms of Rule 46 in respect of
the Respondent's half share in the property concerned in favour of
the applicant.
3. The
respondent is ordered to pay the costs of this application on the
scale
as between attorney and own client.
M.
MBONGWE
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTEN
LOCAL DIVISION
DATE
OF HEARING 09 MARCH 2016
DATE
OF JUDGMENT 25 MAY 2016
COUNSEL
FOR THE APPLICANT MW VERSTER
INSTRUCTED
BY JACOBS & PARTNERS
COUNSEL
FOR THE RESPONDENT GH MEYER
INSTRUCTED
BY MICHAEL SALTZ ATTORNEYS