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[2017] ZAGPJHC 164
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Brown v D'Elboux (40381/2015) [2017] ZAGPJHC 164 (5 April 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 40381/2015
In
the matter between:
BROWN,
MICHELLE
ANN
Applicant
and
D’ELBOUX,
WAYNE
STEVEN
Respondent
JUDGEMENT
NCONGWANE
AJ:
1.
1.1 This is an
application where the applicant seeks various forms of relief,
essentially ranging from seeking an order rectifying
a settlement
agreement the parties concluded when dissolving their marriage to
each other, the appointment of a professional liquidator
with
ancillary prayers regarding the powers of the liquidator, and
commital for contempt.
1.2 Before me, Adv C. Van
Der Merwe appeared for the applicant, and Adv K.J. Van Huyssteen
appeared for the respondent.
1.3 During the course of
their marriage, the applicant and the respondent purchased an
immovable property known as […] Street,
Extension […],
Klevehill Park (“the Cowley property”). The
property was registered in their respective
equal shares. The
parties’ marriage ended in a decree of divorce granted on the
29
th
of November 2013 and they concluded the written Deed
of Settlement (“the settlement agreement”) which was, on
granting
the divorce decree incorporated to it.
2.
2.1 In terms of the
settlement agreement the respondent was to receive the transfer of
the applicant’s undivided half share
in the Cowley property to
him, subject to the respondent releasing the applicant in respect of
her obligations to Nedbank, the
bond holder.
2.2 The Respondent was
obliged to obtain a bond approval within three months of the order of
divorce, from which date, he would
have assumed liability for all the
expenses to the Cowley property, which included, monthly bond
payments, rates and taxes, electricity
charges, maintenance and
general upkeep of the property.
3.
3.1 The applicant seeks
inter alia
rectification of Clause 8.9.1 of the Settlement Agreement on the
grounds that, the relevant clause as it currently stands, does
not
record the true, common intention of the parties at the time the
settlement agreement was concluded.
3.2 Clause 8.9 of the
Settlement Agreement contains the following term:
“
8.9
Should Defendant:-
8.9.1
fail to receive written approval for a bond of an amount equivalent
to the current outstanding bond on the Cowley property
within three
calendar months of the signing of the decree of divorce the property
shall be placed on the market for sale at the
value of R1 200.000.00
whereby the net proceeds i.e. after the deduction of the outstanding
bond, loan to the plaintiff’s
father, estate agent, fees and
all or any other costs associated with the sale of the Cowley
property, shall be shared equally
by the parties.”
4.
4.1 In a nutshell, the
terms of the settlement agreement that are relevant for the
purposes of this judgement
were that the respondent will retain the
property as his sole and absolute property on conditions that are
couched in the following:
“
8.7
Plaintiff shall transfer her undivided half share in Cowley property
to Defendant subject to Defendant releasing Plaintiff in
respect of
her obligation to the bond holder, Nedbank, which Defendant shall be
obliged to do forthwith and within three calendar
months of the
signing of the decree of divorce by both parties and provide
Defendant with satisfactory proof thereof.”
4.2 Clause 8.8 reads:
“
Defendant
shall remain solely liable for the expenses pertaining to the Cowley
Property, including but not limited to the monthly
bond installment,
rates and taxes, electricity charges, maintenance, upkeep and all
other expenses and/or liabilities relating
to and/or in connection
with the Cowley property.”
5.
The
applicant contends that despite these obligations contained in the
settlement agreement, the respondent refused and failed to
cause the
Cowley property to be transferred in his name within three calendar
months, (being 29 November 2013 to 28 February 2014
my own addition).
6.
The
respondent, in his counter application, seeks to enforce the
agreement by requesting an order compelling the applicant to sign
the
transfer document necessary to give effect to the registration of the
transfer of the applicant’s undivided half share
in the Cowley
property in the name of the respondent.
[1]
7.
The
respondent’s counsel argued that there is ambiguity in the
applicable clauses of the settlement agreement. The relevant
part of
criticism by Mr Van Huyssteen is that, the transfer of the Cowley
property could only occur after obtaining of the bond.
And that,
respondent could not release the applicant from her obligation under
the bond, but it is only the bond holder that must
release the
applicant. It was further contended that it was impossible for the
respondent to perform in accordance with the settlement
agreement,
since the three months period was extremely short to obtain approval
for a bond and for effecting the transfer of the
applicant’s
undivided half share to the respondent.
8.
BACKGROUND
AND INTRODUCTION
THE
ISSUES
8.1 The issues in this
application appear to be entangled in such a way as to create a
possible existence of factual disputes. Consequently,
Mr Van der
Merwe referred me to leading cases on factual disputes. I restate
what has become trite, in that , bald denials do not
create factual
disputes, even more so when the respondent is the one vested
with the facts and evidence to refute
the applicant’s
version. The election to merely rely on bald sweeping statements with
absent detail or prove, results in
the applicant’s version
being accepted.
8.2 The facts pertaining
to the non-compliance with the settlement agreement and in particular
the conduct of the respondent in
relation to the terms of the
settlement agreement are in dispute and there has been no
request by either party that the
matter be referred for oral evidence
or trial. In that instance, I must deal with the matter on the basis
of the respondent’s
version, the admitted facts in the
applicant’s papers.
[2]
8.3 In doing so, I am
mindful of the avenue in discharging my obligation, to adopt a
robust common sense
approach in the resolution of the
disputed issues on the papers.
[3]
I therefore proceed, to deal with issues on the basis
that I am not satisfied that there is a real, genuine and
bona
fide
dispute of facts that can prevent the court to decide the case upon
the assumption that the factual elements made by the
respondent
and the various other important matters not dealt with by him,
renders the applicant’s account of the events considerably
weighty.
9.
The
approach I am inclined to adopt in this application is underpinned
upon the principle that the respondent has failed to raise
real,
genuine and
bona fide
dispute to the facts in relation to the evidence of the failure to
take progressive steps to enable the applicant to transfer her
half
share to the respondent. The issues that are before me for
determination are essentially the following:
9.1 Whether the applicant
has made out a case for rectification of the settlement agreement and
for the order appointing the liquidator
in respect of the property,
9.2 Whether the
respondent met a condition for bond approval within the three months
period as specified in the agreement and is
therefore entitled to
enforce the agreement on the basis that the condition has been
complied with, and
9.4 Whether the
respondent should be held in contempt of Court.
10.
FULL
RIGHTS OF OWNERSHIP OF THE COWLEY PROPERTY
The
dispute concerns the rights to Cowley property that was jointly owned
by the parties. A conditional term was agreed to by the
parties that
the respondent will retain full ownership of the property upon
fulfillment of certain conditions. Clause 8.6 expressly
provides
that:
“
Subject to the
terms herein below, defendant shall retain the Cowley property as his
sole and absolute property.”
11.
As
stated above the conditions applicable are set out in Clause 8.7 of
the agreement are the following:-
“
8.7 Plaintiff
shall transfer her undivided half share in the Cowley property to
Defendant subject to Defendant releasing Plaintiff
in respect of her
obligations to the bond holder, Nedbank, which Defendant shall be
obliged to forthwith and within three calendar
months of the signing
of the decree of divorce by both parties and provide Defendant with
satisfactory proof thereof.”
12.
12.1 If simplified, upon
the respondent obtaining the bond approval, he had to take ownership
of the property and release the applicant.
These obligations were to
be complied with within three calendar months from date of signature
of the “decree of divorce”
(sic). I interpret the
“signing of the decree of divorce” to mean the granting
of the order of divorce by a court,
as any other
interpretation may lead to absurdity.
12.2 On 29
th
November 2013, this court dissolved the marriage between the
applicant and the respondent. The settlement agreement
was signed on the 27
th
September 2013, but acquired the power of the court order on the
granting of the divorce decree. The three months period therefore
lapsed on the 28
th
February 2014, after the date of the decree of divorce. The
respondent however, had the knowledge of the obligation to obtain the
approval for a bond on 27
th
September 2013.
12.3 The respondent
contends that the property is his sole and absolute property and
purports to derive his entitlement to take
transfer of the half share
in the property from Clause 8.6 of the settlement agreement. On the
other hand, the applicant’s
case is that the respondent has not
fulfilled all the obligations precedent to the property vesting
to the respondent, and
if conditions are not met, the respondent
cannot retain the property as his sole property in terms of Clause
8.6. In the premise,
applicant seeks an order that the property must
be sold due to the respondent’s failure to meet any of the
conditions set
out in the agreement.
13.
THE
APPROVAL OF THE BOND
13.1 The respondent
insists that he has complied with Clause 8.9.1 of the settlement
agreement in that he has duly received a written
approval on the 24
th
November 2013, for a bond of an amount equivalent to the outstanding
bond on the property at the time the approval was received.
This
approval according to the respondent, was received within three
months of the “
signing
of the decree of divorce”.
[4]
13.2 The caveat contained
in Clause 8.9.1, so the respondent’s version goes, was
therefore never triggered and the
property was never to be placed on
the market for sale at the value of R1 200 000.00. The applicant
simply has no rights to the
property whatsoever, having relinquished
any right in terms of the property when the respondent obtained
approval and the applicant
has no right to any share of the property.
I disagree. In terms of Clause 8.9.1, the bond approval is not
decisive of the dispute.
The difficulty with the document dated the
25
th
of November
2013 (“the 2013 document”) as the written approval for a
bond is that, the same document refers to a single
facility approval
that will be available on signature of the bank’s agreement of
loan and once the bank has been provided
with the securities approved
by the bank’s credit committee. The so called approval relied
on by the respondent is in fact
not a final approval as it still had
to be confirmed as it appears from the heading of the subject matter
in the document.
13.3 The 2013 document
confirms therefore that RMB Private Bank approved an RMB Private
Bank’s single facility which still
had to be confirmed and for
that reason the document does not equate to compliance with the bond
financing as envisaged in Clause
8.9.1, as the document does not
confirm that finance for the property in question has been granted.
Over and above this consideration,
it is clear that the 2013 document
purporting to refer to a finance agreement, granted in favour of the
respondent, lapsed as another
document purporting to confirm a
mortgage redemption loan is annexed to the papers, dated the 17
th
June 2015 (which document was obtained from the same RMB Bank /
FNB, well passed the three months deadline in terms of the
settlement
agreement.)
[5]
It therefore
follows that the was never an approval of a “bond” as
required by Clause 8.9.1.
13.4 In any event, the
mere application for a bond does not release the respondent of his
obligation in terms of the agreement.
It is therefore not surprising
that no meaningful steps followed from November 2013, when the 2013
document was issued, to ensure
that the applicant’s half share
was transferred to the respondent. The obligation to appoint a
conveyancer to attend to the
transfer of the applicant’s
undivided half share in the Cowley property to the respondent, rested
with the respondent in
terms of Clause 8.10 of the settlement
agreement. An approval of the bond should at least have been followed
by the appointment
of the transferring conveyancers and no
explanation that has been finished by the respondent for his failure
to comply with Clause
8.10. His assertion is that it was objectively
impossible to transfer the property within the time limits stipulated
in the settlement
agreement due to various factors that were beyond
the respondent’s control. There is not, in my view, any
evidence that show
that the respondent has done anything even beyond
the period of three months to ensure that the transfer in terms of
Clause 8.7
is achieved within a reasonable time after approval of the
bond in terms of Clause 8.9.1.
13.5 Even if I take the
respondent’s two approvals for the single banking facility into
consideration, there is no evidence
that makes out a case for the
respondent as it seems to be common cause that the draft offer to
purchase entered into between the
respondent and the purchaser,
pending the applicant’s signature, to enable her half
share to be transferred to the
respondent, had lapsed on the 20
th
January 2016.
[6]
The offer to
purchase may include a clear provision that it will lapse and will
have no force or effect should any of the conditions
contained
therein not be fulfilled. The suspensive condition payment of the
deposit by the purchaser to the conveyancing
attorneys and raising of
the bond to be secured from a financial institution or guarantees to
be furnished to the conveyancing
attorneys, the availing of the copy
of the duly signed sale agreement to the conveyancing attorneys
within forty eight hours of
the acceptance of the offer and the
special condition in relation to the approval of the building plans,
resolving of the dispute
in relation to the boundary on the property
and the submission of the application to the local municipality in
respect of the water
meter and payment thereof prior to the transfer
of the property, have all not been complied with. It is therefore
correct to accept,
as the respondent has stated in the answering
affidavit that the offer to purchase lapsed in January 2016. For this
reason the
respondent’s counter application cannot succeed.
14.
THE
RELEASE
14.1 The is no real
bona
fide
factual dispute that the respondent
failed to release the applicant in respect of her obligation to the
bond holder Nedbank as
it is common cause that this can only be
effected upon registration and transfer. Although the respondent
contends that it was
impossible to meet the terms of the settlement
in that the settlement agreement stipulated that ought to have
obtained
bond approval within the period of three months
of the date of the decree of divorce but also had to transfer the
property
within the same period of three months from the date of the
decree of the divorce. He concedes that the transfer of the Cowley
property is required in order to release the applicant.
14.2 The respondent then
in contradiction to the aforegoing version asserts that he did
release the applicant as per:
Paragraph 8.2 of
the answering affidavit where he states that “
I
have released the applicant from any obligation in respect of
property in that neither I nor the bank have required any payment
of
any nature from the applicant in relation to the property”,
and
the respondent further states that the applicant has had no exposure
whatsoever to any liability in terms of the property,
the
respondent further contends that the applicant was protected against
any liability for bond payment and utility accounts and
then
concludes that:
“
In practical
terms she had been released from any obligation and her refusal to
sign transfer document is holding up her becoming
released in the
legal sense.”
This argument is of no
assistance to the respondent as the “release” can
only take place upon registration
and transfer of the Cowley
property. The fact that the applicant is not liable for municipal
charges and bond installment
does not flow from the “release”
as suggested by the respondent, as same is expressly catered for in
Clause 8.8 of
the settlement agreement.
14.3 Clause 8.8 states
that:
“
defendant shall
remain solely liable for all expenses pertaining to the Cowley
property, including but not limited to the monthly
bond installments,
rates and taxes, electricity charges, maintenance, upkeep and all
other expenses and/or liabilities relating
to and/or in connection
with the Cowley property.”
14.4 In the premise, the
respondent is not the sole owner of the Cowley property until the
applicant’s undivided half share
has been formally transferred
to the respondent or the Cowley property has been sold to a third
party and the proceeds of such
a sale be applied as per Clause 8.9.1
of the settlement agreement.
15.
IS
THE APPLICANT ENTITLED TO THE RECTIFICATION OF THE SETTLEMENT
AGREEMENT ?
15.1 The settlement
agreement expressly refers to
the sum of
R1 200 000.00 in
Clause 8.9.1 and I infer that it was clearly inserted on the
acceptance that the three months period
will lapse on 27
December 2013 alternatively February 2014, the property would
immediately be put up for sale.
15.2 Now that the
purported compliance with the two primary obligations, as conditions
stated beneath Clause 8.6 of the settlement
agreement is out of the
way, the next issue is whether the rectification sought by the
applicant is permissible.
15.3 The applicant seeks
the rectification of the settlement agreement to reflect that the
property is to be sold at the open market
on a market value, since
Clause 8.9.1 did not record the true and common intention of the
parties at the time that same was concluded.
15.4 The applicant then
continues in paragraphs 19.2 to 19.2.2 of the founding affidavit to
illustrate that the common intention
of the parties were namely, that
the Cowley property, if not sold and transferred in the
three months period as envisaged,
that the property be
sold at market value as there was no anticipation that it would take
more than two years for the registration
and transfer of the property
to take place and in the meantime obviously, the property has
increased in value since the conclusion
of the settlement
agreement. The respondent has denied these allegations.
[7]
15.5 In my view the bold
denial proffered by the respondent does not create a bona fide
factual dispute and the respondent’s
version is seriously
unconvincing and far fetched and is susceptible to rejection out of
hand in terms of the Plascon Event Rule
and Soffiantini supra. There
is no conceivable reason why the respondent would oppose the
rectification and would not accept that
the sale of the Cowley
property at the market value will also be equally beneficial to him
as both parties will derive a higher
selling price. In this regard,
his opposition for the relief for rectification is unreasonable and
frivolous and stands to be rejected.
15.6 Even if it is
accepted that his bald denial constitutes a
bona
fide
factual dispute, the sale of the property at market value must be a
tacit term of the agreement as it can hardly be contended that
a
delay, as occasioned largely by the respondent, could justify the
respondent profiting from his bridge. It is trite that the
party may
not derive any benefit from his failure to abide by the provisions of
the contract.
[8]
16.
APPOINTING
A PROFESSIONAL LIQUIDATOR NOMINATED BY THE APPLICANT
16.1 The necessity to
appoint the liquidator as prayed for by the applicant is premised
upon the basis that the applicant and the
respondent are at
loggerheads and cannot work together. The only way in which the
Cowley property can be marketed and be sold as
if same is done by an
independent third party (a liquidator) with clearly specified powers
as proposed by the applicant and which
powers and the allegations
made by the applicant in support of her relief for the appointment of
the liquidator are not challenged
in the answering affidavit.
16.2 In this further
regard, applicant asserds that the appointment of a liquidator
to dispose off the property is prudent
under the circumstances as:
1.
There is no effective communication. This state
of affairs is discernable from the plethora of allegations made
by the parties
against each other, raising various disputes without
substantiation which matters, can easily be resolved if the parties
co-operated
with each other. Both parties cannot obtain finality to
the divorce and are unable to give effect to the settlement
agreement.
From the reading of the papers and the litigious history
between the parties, which involves the exercise of visitation rights
by the respondent to the children of the parties, the criminal
proceedings that the parties have instituted against each other,
the
current application and the divorce proceedings themselves, there can
be no doubt that the parties cannot effectively communicate
and the
appointment of a liquidator will be prudent.
17.
In
my view, a proper case is made out for the relief claimed in prayer 2
in so far as the appointment of the liquidator, the liquidator’s
powers and the costs of the liquidator is concerned. I do not find
any reason why, in the circumstances of this matter, the applicant
should pay the fees occasioned by the appointment of the liquidator
and the performance of the liquidator’s functions in
circumstances where the respondent has neglected to comply with the
settlement agreement for such an inordinate period of two years.
18.
In
terms of the settlement agreement, Clause 8.8 thereof, the obligation
to pay all the outstanding expenses for the usual charges
for
electricity, water, property rates, sewage, refuse removal and all
ancillary charges on the Cowley property rendered by the
local
municipality or supplier of services rests upon the respondent.
Without payment of all these charges that are payable under
the
provisions of Section 118 (3) of the Municipal Systems Act, Act No:
200 of 1999, no clearance certificate can be issued by
the
municipality and no registration and transfer of the property can
take place and this therefore, necessitate the granting prayer
4 of
the notice of motion.
19.
There
are other two remaining and contentious issues between the parties,
the one relating to the boundary wall of Cowley property
and the
other being non approval of building plans by the municipality.
19.1 The applicant
alleges that the boundary wall to the property infringed on the
boundaries of the neighbour and that the wall
should be moved to give
effect to the plans of the property.
[9]
In the answering affidavit, the respondent admits that the boundary
wall transgresses the boundaries.
19.2 The absence of the
building plan by the City of Johannesburg, registration and transfer
of the property is bothersome since
the approval of the building
plans has to be disclosed to the prospective purchaser, and the
disclosure will negatively impact
on the purchase price achievable.
The respondent gives two versions regarding the building plans. One
version is that he has resolved
to obtain approval of the building
plan in relation to the property and other hand he asserts
that the building plans for
approval were submitted on or about
September 2015 to the municipality and that he has been advised
(presumably by the City of
Johannesburg ) that the approval of the
building is imminent.
[10]
In
answer to the applicant’s repeated assertion that the plans
have not been approved
[11]
,
the respondent states :
1.1
that he
took steps necessary to obtain approval from the City of
Johannesburg Planning Department and Surveyor General to
re-mark the
boundary pegs of the property and that all regulatory requirements
relating to the above had to be prepared, lodged
and approved.
[12]
1.2
that he
entered into a certain sale agreement with a neighbouring property to
purchase their land and these plans has also been
submitted to the
City for approval and that the building and improvements and the
roofed areas conform with local authority building
plans, but
astonishly the respondent jettisons that version then he asserts that
the plans are currently with the City for approval.
[13]
20.
As
is the case with version postulated by the respondent, he again has
failed to annex any such plans to his papers and more importantly
failed to annex any proof that the plans have been submitted. In the
premise the respondent’s version is susceptible to rejection
and the applicant’s relief in this regard is property made out.
[14]
21.
21.1 In the light of the
fact that Clause 8.9.1 envisages the sale and the split
of the proceeds, after deduction of
all the expenses that stem from
the settlement agreement and repayment of the loan sum to the
applicant’s father,
which is also specifically catered
for in the settlement agreement, the net profits have to be divided
equally between the respondent
and the applicant and in order
to give effect to that, the granting of the relief for the equal
payment of the dividends
to each of the parties is prudent.
21.2 The loan, as
acknowledged by both parties, was obtained for their joint benefit
and the respondent’s assertion that the
loan was initiated by
the applicant at the time when an atempt was made to purchase the
property, is of no assistance to the respondent
the property is
co-owned by the parties.
21.3 In view of the
conclusions I have reached, in that the conditions in Clause 8.9.1
have not been met and no bond approval was
obtained within three
months period of the granting of the decree of divorce, a proper case
is made out that the parties are jointly
and severally liable for the
loan incurred by the applicant.
22.
IS
THERE ANY CONTEMPT BY THE RESPONDENT ?
22.1 The applicant seeks
that the respondent be committed or be fined for contempt of court
because the respondent did not comply
the settlement agreement, there
been no dispute, that there is an order of court.
22.2 In the founding
affidavit the applicant does not seriously deal with the issue as
there are no discernible facts are alleged
that can entitle the
applicant to this relief.
22.3 The respondent also
took this issue light. It is said that the applicant seeks to apply
an incorrect interpretation of the
settlement agreement and in
light of the interpretation, deems the respondent to be in contempt
of court.
23.
23.1 The critical default
that is alleged by the applicant is the failure of the respondent to
take the necessary steps to transfer
the applicant’s undivided
half share of the Cowley property to him. If I can attempt to give
context to the current controversy,
it is not clear from papers
before me whether the respondent’s apparent inordinate delay to
comply with Clause 8.9.1 of the
settlement agreement was deliberate
and constitute
mala fides.
Some
explanation, though not sufficient, has been given by the respondent.
The uncooperative attitude emanating from the both parties
have not
ameliorated matters for the respondent.
23.2 It is no wonder that
Mr Van der Merwe has not pressed vigorously for this relief against
the respondent. From what I glean
from the papers, and the
relationship between the parties who have children with each other
and have just emerged from a divorce,
a lot more would be required to
prove contempt.
23.3 It is trite that the
requirement for a contempt must be established beyond a reasonable
doubt if enforcement sought by way
of a criminal sanction. The
leading authority on contempt is
Fakie
no vs CCLL Systems Pty (Ltd)
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
where the SCA stated that a wilful and
malafide
defiance
must be established beyond a reasonable doubt in order to
successfully prove contempt. No onus of prove rests on a person
accused of contempt, but a burden to adduce evidence from which an
inference of absence of wilfulness or
malafides
can be deduced thus rest on such a person. Once prove is adduced of
the existence of an order, service of the person and compliance.
These words have been expressed by Sutherland J, in the matter
of
Ray
Adam SA (Pty) Ltd vs BSB International Link CC and Two Others, Case
No: 2016/27211
unreported
[15]
.The reason of
the excuse proffered by the respondent is the assertion that it was
impossible for him to comply because the
period within which to
comply was too short for both the securing of the bond and in
particular the registration of the transfer.
This contention has
merit, but I have already found that the respondent still had a
reasonable period after the lapse of the three
months, to comply with
Clause 8.9.1, although technically, the period regularized by the
settlement agreement had lapsed and weakened
the legal enforcement of
Clause 8.9.1 after ninety days period.
24.
CONCLUSION
25.1
I therefore conclude that the respondent has not been acting
mala
fide
in his approach and contempt is not
proven.
24.2
In relation to the other prayers I have dealt with supra, the relief
in the notice of motion is largely a pragmatic mechanism
to be
availed to the parties in their venture to find a
resolution to the dispute. It is a pragmatic and prudent
relief, in my view, and a proper case is made out in the papers.
25.
COSTS
The
parties were involved in a marital relationship and regrettable
sequence of events leading to acrimonious litigation, both civil
and
criminal cases, have made the parties antagonistic towards each
other. I have weighed the interests they both intended to protect
in
this litigation. They are both not of entirely irreproachable
conduct. Due to the tension that exists between them, I deem it
undesirable to make matters worse by granting a costs order against
the respondent. The history of the dispute compels me to find
that it
will serve justice and fairness if no costs order is granted in this
case.
26.
THE
ORDER
26.1. In the result the
following order is made:
1.
The settlement agreement concluded by the parties
on the 27
th
of
September 2013 is rectified by replacing the phrase “
at
a value R1 200 000.00”
in Clause 8.9.1
to read “…
at market value…”
2.
A professional liquidator nominated by the
applicant be appointed and the costs of the professional liquidator
be paid from the
proceeds of the sale of the property known as […]
Street, Klevehill Park, Extension 2 (“the Cowley property”):
2.1 The liquidator shall
have the power and is authorised:
2.1.1
to take control of Cowley property and to sell
the Cowley property on auction or privately at a date and time to be
determined by
the liquidator for not less than the current market
price;
2.1.2
to sign any written deed of sale on behalf of the
applicant and the respondent;
2.1.3
to sign the power of attorney to pass transfer on
behalf of the applicant and respondent to any potential purchaser;
2.1.4
to sign all transfer documents necessary to
effect transfer of the property to any potential purchaser;
2.1.5
to do all that is necessary and to sign all
documents on behalf of the respondent and the applicant to ensure the
transfer of the
property to any potential purchaser;
2.1.6
to do all that is necessary to apply for and
effect the installation of any municipal service on the property on
behalf of the applicant
and respondent.
3.
That the respondent be ordered to pay all the
outstanding expenses for the usual charges for electricity, water,
property rates,
sewerage, refuse removal and all ancillary charges on
the property rendered by any municipal or supplier of service
to the
property within 7 (seven) days from the date of this order;
4.
That the respondent pays in full any rates
clearance figures on demand which was obtained by the Conveyancer in
compliance with
section 118
of the
Local Government Municipal Systems
Act 2000
;
5. That the respondent be
compelled to do all that is necessary to ensure and effect
compliance with any building regulations
imposed by the City of
Johannesburg and all by laws. In that;
5.1
The respondent must apply and ensure that the plans are drawn and
approved by the City of Johannesburg or any other entity tasked
with
the Compliance and approval of building plans;
6. That the respondent be
compelled to do all that is necessary to ensure that the plans for
the Cowley property are approved by
the City of Johannesburg within
3(three) months from the date of the order;
7. That the net profit
after the respondent pays the expenses as set out in Clause 8.8 of
the settlement agreement be divided equally
between the respondent
and the applicant;
8. That should the
respondent refuse to pay all expenses payable in terms of the
settlement agreement that such payments due
by the respondent be
offset against respondent’s portion of the net proceeds of the
Cowley property;
9. That the loan amount
of
R 45 394.50 plus interest thereon of 9% per annum
be paid
to the applicant’s father , from the net proceeds of the
sale of the Cowley property and if such net
profit is
insufficient, be paid by both parties jointly and severally the one
paying the other to be absolved;
10. The respondent’s
counter application is dismissed.
11. No order as to costs
is made.
Thami
Ncongwane AJ
Acting
Judge of the High Court
Matter
heared: 29 August 2016
Judgement
delivered : 05 April 2017
For
the Applicant : Adv C. Van Der Merwe
Instructed
by: ASG Tserkezis Inc
For
the Respondent: Adv K.J. Van Huyssteen
Instructed
by: Fluxmans Incorporated
[1]
See the Counter Application para 1 paginated pg 122
[2]
The principle is applied in
Buffalo
Freight Systems vs Crestleigh Trading
2011 (1) SA 8
SCA at pp
13 para I-G
,
where the principle as applied in
Plascon
Events Paints ( Pty ) Ltd vs Van Riebeck Paints (Pty ) Ltd 1984 (3)
A (623(A) at 635 E – F
(Where
it was held that the court must deal with the matters on the basis
that the respondent’s version coupled with the
admitted facts
in the applicant’s papers.) However, in
Truth
Verification Testing Center CC vs PSE Truth Detection CC and Others
1998 (2) SA 689
(W) Elloff AJ stated at 698 H-J
:
‘I am also mindful of the fact that the so called “robust
common sense approach “ which was adopted in cases
such as
Soffiantini
vs Mould
1956 (4) SA 150
(E) at 154
,
in relation to the resolution disputed issues on paper usually
relates to situations where a respondent contends himself with
bald
and hollow denials of factual matter confronting him. There is,
however, no reason in logic why it should not be applied
in
assessing a detailed version which is wholly fenceable and
untenable’
The court further
stated:
I
respectfully agree. The court should be prepared to undertake an
objective analysis of such disputes where required to do so.
In
Wightman T/A FW
Construction vs Head four (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
SCA
[2008] 2 All SA512),
it was suggested how that might be done in appropriate
circumstances, the present case falls for a similar analysis.
In
Plascon
Events Paints (Pty ) Ltd vs Van Riebeck Paints (Pty ) Ltd
1984 (3)
SA 633(A)
at 635
“More
over
,
there
may be there may be exceptions to the general rule, as , for
example, where the allegations or denials of the respondent
are so
far-fetched or clearly untenable that the court is justified in
rejecting them merely on the papers.
[3]
In
Soffiantini
vs Mould 1956 (4)SA 150 (E) at 154
, the court held,
“If by a mere denial in general terms a respondent can defeat
or delay an applicant who comes to court on motion, then
motion
proceedings are worthless, for a respondent can always defeat or
delay a petition by such a device. It is necessary to
make a robust
common-sense approach to a dispute on motion as otherwise effective
functioning of the court can be hamstrung and
circumvented by the
most simple and blatant stratagem. The court must not hesitate to
decide an issue or fact on affidavit merely
because it may be
difficult to do so. Justice can be defeated or seriously impeded and
delayed by an over fastidious approach
to a dispute raised in
affidavits”
[4]
See page 90 , Annexure FA
20 to the founding affidavit.
[5]
See page 91 Annexure to the
founding affidavit, letter issued by the First National Bank
[6]
See the respondent’s
answering affidavit pg128 , para 14 and See also pg 162 para 20.4 of
the offer to purchase
[7]
See respondent’s
answering affidavit pg 133 para 10.1 - 10.5
[8]
See Scott and Another vs
Poupard and Another
1971 (2) SA 373
(A )
[9]
See founding affidavit pg 20, para 24.1
[10]
See the answering
affidavit pg 136 para 11.11
[11]
See the founding affidavit
pp20 para 26, pp23 para 35, pp28 para 53.3, pp 32 para
70.1
[12]
See answering affidavit pp
139 para 13.3 and 13.3.5
[13]
See answering affidavit pp
141 para 15.5 and 145 para 20.3.
[14]
Wieghtman, Buffalo,
Soffiantini and Plascon Authorities, supra.
[15]
In paragraph 10 of the same
authority, the learned judge states the following: “10 –
Generally, where, as in this
case, non compliance calls for an
explanation that points away from defiance, a party might plead an
impossibility of performance,
or the existence of an impediment
inhibiting performance, however BSB does nothing of that sort. What
it does is frankly converse
to taking more steps towards compliance
and more over confesses to doing so deliberately. Does the conscious
decision to act
thus, therefore mean that the element of wilfulness
is proven? The word ‘wilful’ is a dangerous one, it is a
pejorative
term. It embraces more than just a notion of
‘intentional’ but also the mantle of rebuke, i.e the
intention is unsavoury
, in this sense the usual mantra which
requires both “wilful” conduct “malafide”
conduct seems to be
tautologous. And negligence failure to perform
can never be wilful. A malafide failure is always wilful. “