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[2019] ZAGPJHC 362
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Body Corporate of Oakmont v Awah (2490/2018) [2019] ZAGPJHC 362 (20 September 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: 2490/2018
In
the matter of
THE
BODY CORPORATE OF OAKMONT
APPLICANT
and
ALFRED
KALU ORIE AWAH
RESPONDENT
JUDGMENT
DLAMINI AJ:
INTRODUCTION
[1]
The applicant is THE BODY CORPORATE OF OAKMONT, a body corporate
duly
established in terms of
section 36
of the
Sectional Titles Act, 1986
,
read together with section 2 of the Sectional Titles Schemes
Management Act, 2011. The applicant is tasked with the
management
of the sectional title scheme known as OAKMONT established
under scheme number SS[…] and with chosen domicile situated at
3[…] O[…] A[…], Unit F[….] O[..] A[…]
Office Park, Randburg, and Johannesburg.
[2]
The respondent is ALFRED KALU ORIE AWAH, a major male person with
birth date 16 September 1956 who is the registered owner of unit 3 in
the sectional title development known as OAKMONT, scheme
number SS[…]
situated J[…] C[…] G[…] E[…], ZANDSPRUIT,
EXT […]. City of Johannesburg,
Gauteng Province.
[3]
The applicant seeks the following orders:-
3.1 seeking the
respondent’s immovable property known as Unit […], O[…],
J[…] C[…] G[…]
E[…], Zandspruit, Ext […]
declared executable in terms of Rule 46 of the Uniform Rules of Court
and that a warrant
of execution be authorised and issued against the
Property;
3.2. an order
authorizing it to restrict and/or limit the water supply to the
Property to an amount of 6000 litres per month unless
and until the
respondent makes payment of the arrear water consumption charges
amounting to R 6 628,01 for the period 25 March
2014 to 24
August 2017;
3.3 an order
authorizing the sheriff to grant a contractor, nominated and
appointed by applicant access to the Property in order
to
restrict/limit the water supply;
3.4 an order
holding the respondent liable for the attorney and client costs
incurred by the applicant
[4]
The applicant entered into a management agreement with AIV Properties
Specialists in terms of which AIV Properties Specialists was
appointed as the applicants managing agent, to amongst other things
to control, manage and administer the applicant’s common
property.to deal with the collection of its financial contributions
and to generally manage its affairs.
[5]
Every owner of a unit in a sectional title development automatically
becomes
a member of the scheme’s body corporate when a
sectional title is transferred into his name. The Respondent
became
a member of the applicant on the 3
rd
March 2010 when the property was registered in his name.
[6]
The applicant’s statutory obligations, arising from section 37
of
the Sectional Titles Act of 1986 (ST Act) and section 3 of the
Sectional Titles Scheme Management Act of 2011 (STSMA) include the
following:-
(a)
the establishment of a fund, sufficient in the opinion of the body
corporate for the repair, upkeep, control,
management and
administration of the common property, for the payment of rates and
taxes and other local authority charges, for
the supply of electric
current, gas, water, fuel and sanitary and other services to the
building or buildings and land, and any
premiums of insurance, and
for the discharge of any duty or fulfilment of any other obligation
of the body corporate;
(b)
to require the owners, including the respondent, to make
contributions to the fund established by the applicant
for the
purposes of satisfying any claims against the body corporate;
(c ) to determine
the amounts to be contributed by its members;
(d) to raise the
amounts so determined by levying contributions on the owners in
proportion to the quotas of their respective sections;
(e ) to control,
manage and administer the common property for the benefit of all
owners.
[7]
The applicant alleges that the Respondent despite his statutory
obligation
to contribute to the applicant the respondent has failed
to do so. As at the 12
th
September 2017, the respondent was indebted to the applicant in the
sum of R202 410,00. Despite having become the owner
on the
3
rd
March 2010, the respondent failed and continues to fail to make any
payment. As the results of the respondent’s failure,
instituted legal proceeding, obtain warrants of execution and
attempted to execute such warrants.
[8]
Applicant alleges that it is unable to execute its judgment as it
appears from the Sheriff return that the Sheriff was unable to serve
the warrant of execution due to the fact that the respondent
is not
residing at the unit, but that if was in fact occupied by a tenant
Miss Cynthia Pillay and further that the Respondent is
currently in
Nigeria.
[9]
In an effort to collect its debts, the applicant entered into a
settlement agreement with the respondent’s son, who was
apparently duly authorised by the respondent to enter into settlement
agreement with the applicant.
The material terms
of which, was that the Respondent acknowledge his indebtedness to the
applicant and agreed to make payment in
the sum of R40000, 00 before
February 2016.
RESPONDENTS CASE
[10]
In his replying papers the Respondent raised various points in
limine
(a)
Authorization
from the Body Corporate of OAKMONT to depose.
The Respondent
argues that the deponent Andre Steward was not duly authorised to
depose to an affidavit on behalf of the Applicant.
(b)
The
second point in line
The Respondent
argues that the applicant has failed to annex all the relevant
documentation as read in accordance with Rule 46(A)
5.
(c)
Third
point in line
.
This point deals
with the requirements of Rule 6(1) of the uniform rules of court read
as follows:
6(1) Save where
proceedings by way of petition are prescribed by law, every
application must be brought by notice of motion supported
by an
affidavit as to the
facts upon which the
application relies for relief.
6.2 The
“
facts upon which the applicant
relies on relief
’ entails the
following:-
6.2.1 The
applicant’s locus standi;
6.2.2 The facts
indicating that the court has jurisdiction’
6.2.3 The cause of
action on which the applicant relies. The respondent is
entitled to raise an objection in
limine
that the founding affidavit does not make out a
prima
facie
case for the relief claimed;
6.2.4 The evidence
in support of the application.
[11]
The Respondent main difference appears to be that the applicant’s
statement
of the respondent arrear levies and related charges
incorrectly includes legal cost and interest.
The respondent
further submits that the applicant has not complied with either rile
46 and rule 46 (A) of the Uniform Rules of Court.
[12]
The Respondent submits that the applicant has not made out a case for
a final
order to limit the supply of water and to cut electricity to
the property.
[13]
It’s my view that the Respondent first point in
limine
has now become mute as the applicant
has satisfactorily dealt with and annexed the necessary resolution in
this regard.
[14]
The relevant provisions of Rule 46 of the Uniform rules of court read
as follows:
46(1) (a) Subject
to the provisions of rule 46A, no writ of execution against the
immovable property of any judgement debtor shall
be issues unless:
(i)
a return has been
made of any process issued against the movable property of the
judgment debtor from which it appears that the
said person as
insufficient movable property to satisfy the writ; or
(ii)
such immovable
property has been declared to be specially executable by the court or
where judgement is granted by the registrar
under rule 31(5).
The
next question is whether the respondent qualifies for judicial
oversight as provided for in the Rule 46 (A).
The
relevant provisions of Rule 46(A) of the Uniform rules of court read
as follows:-
46(5) Every
application shall be supported by the following documents, where
applicable, evidencing:-
(a)
the
market value of the immovable property;
(b)
the
local authority valuation of the immovable property;
(c)
the
amounts owing on mortgage bonds registered over the immovable
property;
(d)
the
amount owing to the local authority as rates and other dues;
(e)
the
amounts owing to a body corporate as levies; and
(f)
any
other factor which may be necessary to enable the court to give
effect to subrule (8).
There
is a distinction between rule 46 and rule 46A. Rule 46 deals
specifically with the execution against immovable property
other than
the residential immovable property of a judgment debtor, the
underlying principle being that, save where immovable property
has
been specially declared executable, execution shall not be issue
against immovable property until movable property has been
excused
and it appears that the movable is insufficient to satisfy the writ.
Rule
46A on the other hand deals with execution of the debtor’s
residential immovable property alternatively is primary residence.
The court in First
Rand Bank Ltd v Foldable said the following:-
(a)
The judicial
oversight that must be exercised is therefore limited to those
instances
(b)
[15]
In my view the property does not fall within the definition in
respect of the
property as defined in Rule 46 (A).
The
Respondent in his confirmatory affidavit states the following:-
“
Alfredo Kalu
Orie Awah formally temporarily resident at a Pinehurst,
J[…]l C[…] G[…] E[…],
B[…],
Northriding, South Africa, and permanently resident in resident No.21
U[…] Street, Nigeria.
The respondent goes
on in saying “since the 11
th
November 2012 had been bed ridden on account of debilitating illness
and is now unable to move limbs or travel out of permanent
resident”
in Nigeria).
It is thus clear
from the above that firstly, the property is not the respondent’s
principal primary and the only dwelling.
The Respondent when
he was even still in South Africa was resident at a P[…] J[…]
C[…] G[…] E[…].
Further that he has since
the 2012 been resident in Nigeria and has not even on the hearing of
this matter returned to South Africa.
[16]
Respondent further avers that he has acquired the following
properties:-
(i)
Unit 153 SS W[…] height, B[…] Street, V[…] V[…],
E[…] 62, Gauteng.
(ii)
Unit 69 SS W[…] height, B[…] Street, V[…] V[…],
E[…] 62, Midrand, Gauteng
(iii)
9 P[…], J[….] C[…] Golf Estate, B[….] Rd,
Northriding.
(iv)
3 O[…], J[…] C[….] Golf Estate, B[….] Rd,
Northriding.
It is apparent from
the above list that the respondent has acquired the property purely
for commercial gains. Alternative
the above list shows that the
property is not to deal with the collection of its financial
contributions and to generally manage
its affairs.
[17]
The question to be answered here is whether:-
1.1 the respondents
qualities for judicial oversight as provided by the uniform Rule
46(A) or 46(1) of the uniform rules of court.
1.2 we the
respondent’s indebtedness can be disputed on
bona
fide
grounds
[18]
In this regard the applicant submits that the respondent in his
capacity as
judgement debtor does not reside at the property sought
to be declared specially executable and has in fact relocated to
Nigeria.
That the respondent
is currently leasing the property and collecting rental from this
parties, further the applicant obtained three
separate judgements
against the respondent amount to R128 000,00, excluding interest
and legal fees. Accordingly, plaintiff
submit that the
respondent does not enjoy the protection offered by Rule 46(A) and
has satisfied the jurisdictional requirements
contained in Rule 46(1)
a.
[19]
The respondent denies that he does not enjoy judicial oversight in
respect
of the property in terms of Rule 46(A). The Respondent
contends further that Applicant’s submission that the
respondent
is permanently residing in Nigeria is correct.
[20]
The relevant provisions of Uniform Rule 46(1) (a) read as follows:-
46(5) Every
application shall be supported by the following documents, where
applicable, evidencing:-
(a)
the
market value of the immovable property;
(b)
the
local authority valuation of the immovable property;
(c)
the
amounts owing on mortgage bonds registered over the immovable
property;
(d)
the
amount owing to the local authority as rates and other dues;
(e)
the
amounts owing to a body corporate as levies; and
(f)
any
other factor which may be necessary to enable the court to give
effect to subrule (8).
The relevant
provisions of Uniform Rule 46(A) read as follows:-
(1)
“
This
rule applies whenever an execution creditor seeks to execute against
the residential immovable property of the judgement debtor”.
(2)
A court
considering an application under this rule must:-
a.
establish
whether the immovable property which the execution creditor intends
to execute against as the primary residence of the
judgement debtor.
[21]
The court in FirstRand Bank Ltd v Folscher expresses the Rule 46(A)
as follows:-
46(5)
Every application shall be supported by the following documents,
where applicable, evidencing:-
(a)
the
market value of the immovable property;
(b)
the
local authority valuation of the immovable property;
(c)
the
amounts owing on mortgage bonds registered over the immovable
property;
(d)
the
amount owing to the local authority as rates and other dues;
(e)
the
amounts owing to a body corporate as levies; and
(f)
any
other factor which may be necessary to enable the court to give
effect to subrule (8).
[22]
In my view the property does not fall within the definition in
respect
of the property as defined in Uniform Rule 46(A).
In the power of
attorney that the respondent signed authorising his son to act in his
behalf he says the following, “I am
quoting the power of
attorney in full:-
THIS POWER OF
ATTORNEY
is given this
10
th
day of NOVEMEBER 2016, by
ALFREDO
KALU ORIE AWAH
, Nigerian Citizen, born
on the 16
th
of September 1965 with passport number A[…], formally
temporarily resident at 9 P[…], J[…] C[…] Golf
Estate, B[…] Road, N[….], South Africa, but domiciled
in Nigeria, and permanently resident at No. 21 U[…]
Street,
Off O[…] J[….], A[…], Abia State, Nigeria (The
Donor).
WHEREAS:-
A.
I, ALFREDO KALU ORIE AWAH (the Donor), a
Citizen of Nigeria, maintained temporary residence in South Africa,
at 9 P[…], J[…]
C[…] Golf Estate, B[…]
Road, N[…], South Africa until circa 11
th
November 2012.
B.
And I, the Donor, acquired the following
properties in South Africa:
(i) Unit
153 S[…] W[….] height, B[…] S[…], V[…]
V[…], E[…] 62,,
Gauteng.
(ii)
Unit 69 S[…] W[…] height, B[….] S[…],
V[…] V[…], E[…] 62, Midrand,
Gauteng
(iii) 9
P[…], J[…] C[…] Golf Estate, B[….] Rd,
N[….].
(iv)
3 O[….], J[…] C[…] Golf Estate, B[…] Rd,
N[….]
C.
And I, The Donor, since the 11
th
of November 2012, had been bedridden on account of debilitating
illness and is now unable to move my limbs or travel out of my
permanent residence at No. 21 U[…] S[….], Off O[….]
J[….], A[…], Abia State, Nigeria;
D.
It has become expedient for me, the Donor,
to appoint a proxy to act for me on my behalf in matters requiring my
acts, for the protection
of my interests in South Africa and
elsewhere;
NOW
THEREFORE, KNOW YE ALL MEN:
[23]
From this Respondent power of attorney emerges the following that The
Respondent has since 2012
left South Africa is now staying in
Nigeria.
That
during his stay in South Africa, he was not permanent resident at the
property he says he was formally temporary resident at
9 P[….]t,
J[…] C[…] G[…] E[….].
Further
that, unit 3 the property is one of the four properties that he has
acquired for financial gain.
[24]
The Respondent son whom he authorised to defend this action, avers
that the Respondent has permanently
left South Africa due to illness
to reside in Nigeria. The son then alleges that when he returns
to South Africa (we don’t
know when) he intends to make the
property his formal residence.
[25]
It is thus my view that the property is not the Respondent principal
resident and as such does
not enjoy the judicial oversight envisaged
in Uniform Rule 46(A) and defined in the Folsce case supra.
[26]
I agree with the applicant submission that the debt has been incurred
under the circumstances
which places an untenable financial burden on
the remaining members of the applicant.
The
respondent continues to receive monthly rental on the property but
fails to pay the levies and his debt stands at amount of
R270 000,00
and continuing with interest.
The
applicant has no other remedy. The Sheriff’s has noted
that respondent does not stay at the property but other tenants
are
occupying it. Respondent has continued that he is now
permanently staying in Nigeria.
[27]
The respondent contends that the arrear levies and charges of in the
applicant statement is incorrect,
in that it incorrectly includes
legal costs and interest as result of which the respondent submits
that the applicant debt is not
accurate and reliable.
[28]
I concur with the applicant that this application concerns the
enforcements of judgements that
has been granted. The question
of the respondent debt is therefore
res
judicata.
[29]
In my view, the Sheriff’s return clearly
indicates that there are no immovable belonging to the Respondent
at
the property. Thus the applicant has met the requirements of
Rule 46(1)(a)(i)
_______________________
J DLAMINI
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
On behalf of the Plaintiff
Adv
J Vorster
Instructed Rabie Attorneys
c/o
Jordaan & Wolberg
On behalf of the
Defendant
Adv
D. Moodliyar
Instructed Ingrid Kettles Attorneys
c/o
A Le Roux Attorneys
Heard on the 03
rd
September 2019
Judgment handed down on the 20
th
September 2019