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[2019] ZAGPJHC 378
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Singh v Sheriff Sandton North and Others (47164/2018) [2019] ZAGPJHC 378 (4 September 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 47164/2018
In
the matter between:
LUNESH
SINGH APPLICANT
and
SHERIFF
SANDTON NORTH
FIRST
RESPONDENT
STANDARD
BANK OF SOUTH AFRICA SECOND
RESPONDENT
THE
BODY CORPORATE OF
U. INTERVENING
RESPONDENT
J
U D G M E N T
VAN
OOSTEN J:
Introduction
and background facts
[1]
This is an application for the setting aside of a sale in execution
of an immovable property pursuant to an order of court,
held by the
first respondent on 30 October 2018.
[2]
The applicant, who appeared in person, is the registered owner of the
immovable property, which is described as […] K.
road,
Sunninghill Ext 29 (the property). The applicant fell into arrears
with the payment to the Body Corporate of U., the intervening
respondent (the body corporate), of monthly levy contributions levied
in terms of the Sectional Tiles Act 95 of 1985 and its successor,
the
Sectional Titles Management Act 8 of 2011. The body corporate
instituted action first in the Magistrate’s court and
subsequently in the High Court, Gauteng Division, and obtained
judgments in both actions, on 30 March 2012 and 22 October 2015 for
payment of the amounts of R80 912.23 and R206 312.28
respectively. Pursuant to an order of the Magistrate’s court,
in terms of s 66(1) of the Magistrate’s Court Act, the property
was declared specially executable. The sale in execution
was
scheduled for 1 September 2015 but was cancelled due to the applicant
having paid the full judgment debt. Execution proceedings
in regard
to the High Court judgment were thereafter instituted and opposed by
the applicant who simultaneously applied for a rescission
of
judgment. The parties however concluded a settlement agreement in
regard to both applications, which was made an order of court.
The
applicant failed to make the agreed payments in terms of the
settlement agreement and the body corporate obtained a warrant
of
execution pursuant to which a sale in execution of the property was
scheduled for 30 October 2018. The applicant however, launched
a
second application for rescission of judgment on the self-same facts,
on 12 October 2018, as well as subsequently an urgent application
for
a stay of the warrant of execution, which was heard by Mvundla J on
23 October 2018. The learned judge dismissed the application
with a
punitive costs order against the applicant.
[3]
The sale in execution proceeded on 30 October 2018 and the property
was sold for an amount of R591 000.00. The outstanding
bond
balance owed to the second respondent was R590 622.24 and the
execution purchaser became liable for payment of the further
amounts
of R43 550.73 and R552 189.09 in respect of municipal rates
and taxes and arrear levies respectively. The total
amount payable by
the purchaser accordingly was
R1 185 739.82.
[4]
Subsequent to the sale in execution, on 14 December 2018, the body
corporate obtained a further judgment against the applicant
in
respect of arrear levies in the amount of R52 128.55. The second
rescission application was heard by Vorster AJ on 18 March
2019. The
learned judge dismissed the application, likewise as in the previous
application before Mvundla J, with a punitive costs
order against the
applicant. On 19 March 2019 the applicant instituted an ‘Application
for summary judgment’ in respect
of the present application.
The application, apart from constituting an abuse of process, was in
any event incompetent. The application
moreover was not served on the
body corporate. The applicant failed to attend court on the day of
the hearing and the application
was dismissed.
The
issue for determination in the present application
[5]
The only ground relied upon by the applicant in support of the
application for the setting aside of the sale in execution, is
that
the arrear levies amount, the payment of which became the purchaser’s
liability, as has been ascertained from the statement
obtained from
Trafalgar Property Management, the property managing agent on behalf
of the body corporate, incorrectly included
legal fees and costs
relating to the collection of the arrear levy amounts from the
applicant. The arrear levies amount payable
by the purchaser, who
happened to be an employee of Trafalgar Property Management, as I
have alluded to, amounted to R552 189.09,
which the applicant
contends, having subtracted the legal fees and costs, should have
been R86 813.00. The erroneous ‘inflated’
amount, so
the applicant contended, may have influenced the purchaser to bid a
lower amount at the execution sale, after factoring
in the arrear
levies amount that became the purchaser’s liability. Had the
purchaser known that the arrear amount in fact
was a substantially
lesser amount, the bid on the purchase price may well have been
substantially higher which in the end result,
would have been to the
benefit of the applicant.
[6]
I do not consider not necessary to consider the argumentative
contentions raised by the applicant any further. I propose to
deal
with the ground advanced by the applicant, on the basis of whether it
is fundamentally sustainable.
[7]
The answer to the question whether sectional title levies may include
legal fees and costs will decide the fate of the application.
Section
15(B)(3)(a)(i)(aa) of the Sectional Titles Act provides that
registration of a unit can only be effected upon a conveyancer’s
certificate confirming payment of
all moneys
due to the body
corporate. In
Barnard NO v Regspersoon van Aminie en ‘n
Ander
2001 (3) SA 973
(SCA) para [15], the words
all moneys
were interpreted in their wider connotation, and therefore to include
legal fees and costs. The sale in execution accordingly,
correctly
informed the prospective bidders in the conditions of sale, in
wording almost identical to the wording of
s 15(B)(3)(a)(i)(aa),
of all moneys due to the body corporate, which the eventual purchaser
was obliged to pay in order for registration
of transport to be
effected. ‘All moneys’ as held in
Barnard
,
included legal fees and costs incurred in the collection of arrear
levies from the applicant.
[8]
The application accordingly falls to be dismissed.
Vexatious
litigant
[9]
The body corporate, having endured continuous delaying tactics
employed by the applicant in an attempt to avoid payment of levies,
now seeks an order declaring the applicant a vexatious litigant.
[10]
I am satisfied, having considered the applicant’s litigation in
regard to the property, which I have alluded to above,
that the
proceedings were instituted persistently and without any reasonable
ground and that an order restricting the applicant’s
institution of further proceedings, if any, is justified (see s
2(1)(b) of the Vexatious Proceedings Act 3 of 1956).
Costs
[11]
The applicant’s persistent vexatious attempts to avoid payment
of levies and his reliance, once again in the present
application, on
unsustainable grounds, warrant a punitive costs order. This will be
the third punitive costs order against the
applicant in this line of
litigation.
Referral
to the NPA
[12]
The body corporate has referred in detail to the past litigation in
this matter and counsel for the body corporate with ample
justification, submitted that the applicant’s conduct should be
referred to the National Prosecuting Authority for investigation
in
regard to the possible crimes of fraud and perjury having been
committed by the applicant.
Order
[13]
In the result the following order is made:
1.
The
application by the applicant, Lunesh Singh, (the applicant) for the
setting aside of the sale in execution of the immovable
property
known as […] K Road, Sunninghill Extension 29, Gauteng
Province, (the property) is dismissed.
2.
The
applicant is to pay the costs of the intervening respondent, the Body
Corporate of U., on the scale as between attorney and
client.
3.
The
applicant is declared a vexatious litigant in regard to the
litigation referred to at pages 90 to 107 of the papers in this
application.
4.
The
applicant shall not institute any legal proceedings in any court
concerning the property without having first obtained the leave
of
this Court.
5.
This
application, including the judgment of this Court, is referred to the
National Prosecuting Authority for investigation in respect
of
possible fraud and/or perjury having been committed by the applicant.
____(Original
signed)
_______
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
APPLICANT
IN
PERSON
COUNSEL
FOR INTERVENING
RESPONDENT
ADV
NG LOUW
INTERVENING
RESPONDENT’S
ATTORNEYS RORICH
WOLMARANS & LUDERITZ INC
DATE
OF HEARING 2
SEPTEMBER 2019
DATE
OF ORDER 2
SEPTEMBER 2019
DATE
OF JUDGMENT 4
SEPTEMBER 2019