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[2010] ZAGPPHC 22
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Ixia Farming (Pty) Ltd v Dipaleseng Munisipaliteit (4342/2008) [2010] ZAGPPHC 22 (23 March 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE NO:
4342/2008
DATE:
23 MARCH 2010
In
the matter between:
IXIA FARMING
(PTY)
LTD APPLICANT
a
nd
DIPALESENG
MUNISIPALITEIT
RESPONDENT
J U D G M
E
N T
PHATUDI
(AJ)
[1]
The
applicant instituted this application seeking an order ordering the
Respondent, Dipaleseng Municipality, to, within 7 days,
issue
clearance certificates in terms of
Section 118(1)(b)
of the
Local
Government, Municipal Systems Act 32 of 2000
in respect of immovable
properties set out in the Notice of Motion.
[2]
The
Applicant sold the said seven (7) immovable properties as fully
described in the Notice of Motion. A firm of Attorneys and
conveyances, Haarhof Fourie & Singh Attorneys (the attorney) were
instructed to effect transfer of the said properties.
[3] The Attorneys
requested the Respondents to cause issue of the clearance certificate
as per their letter dated 19 November 2007,
as annexed to the
Applicant’s founding affidavit marked
“IF05”
.
The required fees were, subsequent thereto, paid by the Attorneys on
the 15 January 2008.
[4] The Applicant submitted that
numerous letters were issued to the Respondent requesting urgent
attention to the issuing of certificates
but to no avail. It is
noted, as per annexure, that at least 3 letters were issued on the
21, 22 and 29 January 2008 respectively.
[5] Mr Jacobs, counsel for the
Applicant, submitted that the Respondent’s non response
instigated the Applicant to cause issue
of this application on the 31
January 2008.
[6] Mr Jacobs further submitted that
the Applicant’s application be regarded as unopposed on the
basis that the deponent of
the Respondent’s answering affidavit
did not have the authority to do so. He submitted that the
resolution by Municipal
Council as annexed to the answering affidavit
marked
“PBM1”
be regarded as
pro non
scripto
resulting in the
Respondent
not
being properly before court. He referred me to
BESTENBIER
v GOODWOOD MUNICIPALITY
1951 (4) SA 199
(C)
,
where, he submitted, it was held that where there is no proper
resolution taken to oppose an application nor that anyone should
file
affidavits on behalf of municipality, then the municipality is not
proper before court.
[7] He lastly submitted that the
Respondent is not proper before court and thus, this court should
struck the opposing affidavit
off and the matter be considered on an
unopposed basis and further submitted that the relief sought be
granted.
[8] He finally submitted that the
municipal manager, Mr Patrick Baromeng Malebye, be personally held
liable for the costs of the
Applicant on Attorney and client scale
for having acted without authority.
[9] In rebuttal, counsel for the
respondent, Mr Sibeko, submitted that the deponent to the opposing
affidavit, Mr Patrick Baromeng
Malebye, is the Municipal Manager,
duly appointed in terms of the
Local
Government: Municipal System Act 32 of 2000
and is duly authorised to depose to the affidavit in opposing the
Applicant’s application.
[10] He emphasised that the resolution
of the Municipal Council marked
“PBM1”
is valid and authorised the Municipal Manager to act on behalf of the
Respondent. He referred with emphasis to paragraph two (2)
of the
said resolution that provided:
“
2. that the Delegation
Register as label separately, be approved by Council as a system of
delegation in terms of Section 59(1)
of the Local Government System,
Act 2000 (Act 32 of 2000)”.
[11] Section 59(1) provides for the
powers the Municipal Manager has which I accept to be the necessary
authority the Municipal
Manager had to depose to the affidavit. Mr
Sibeko submitted on that premise that the Municipal Manager, Mr
Patrick Baromeng Malebye,
had necessary authority to so represent and
act on behalf of the Respondent. He further submitted on that basis
that the Respondent
is proper before court. He further submitted
that in the event the Respondent is found not to be proper before
court, then the
Respondent cannot be mulcted with costs.
[12] Mr Sibeko, conceding to the
letters issued by the Applicant’s attorneys persuading the
Respondent to issue the certificate,
he however submitted that the
clearance certificates were issued on the 25 January 2008. He
further submitted that the said certificates
were collected by the
employee or member of the Attorneys Firm on the same day.
[13] He further submitted that the
time the Applicant caused issue of this application on the 31 January
2008, the Applicant’s
attorneys had already received the
certificates and thus the Applicant had no legal basis to bring this
application.
[14] In my evaluation of the evidence
tendered and the submissions made by both counsel for the Applicant
and Respondent, I find
that the clearance certificates are a
necessity to effectuate the transfer as per Section 118(1)(a) of the
Local Government; Municipal
System Act 32 of 2000 that provides:
“
(i) A registrar of deeds may
not register the transfer of property except on production to that
registrar of deeds of a prescribed
certificate,
(a) issued by the Municipality or
municipalities in which that property is situated.”
[15] Section (1A) of the Act further
provides that:
“
A prescribed certificate
issued by a municipality in terms of subsection (1) is valid for a
period of 120 days from the date it
has been issued.”
[16] It is expected, I find, as a
matter of common practice, from conveyancers that they ought to
effectuate transfer within 3 months
from date of receiving
instructions. The conduct of the Attorney of persistently persuading
the Respondent by letters to cause
issue of certificate cannot be
found to be vexatious.
[17] I further find that, the
certificates required and requested by the Applicant were issued on
the 25 January 2008. It has been
submitted by the Respondent’s
counsel that the said certificates were collected by an employee of
the Attorneys on the same
day (i.e 25 January 2008). The Applicant
denied the delivery date but indicated that they only received the
certificates some
time in February 2008.
[18] I find it reasonable the
submission by the Respondents of their lack of knowledge of the
Attorneys internal administration
and despatch of documents to the
desk of the file handler. This aspect was not contested by the
Applicants.
[19] The issuing of certificates by
the Respondents rendered the Applicants application a non-starter.
The Applicant ought not
to have caused issue of the application on
the 31 January 2008. I find the Applicants persistence on persuading
the matter even
after it came to their knowledge of compliance by the
Respondent as being uncalled for. The proceedings ought to have been
stopped
immediately after it came to the attorneys (file handler’s)
attention. The parties ought not to have incurred these costs.
[20] Accordingly, I make the following
order:
[20.1] The application is dismissed
with costs.
AML PHATUDI
ACTING
JUDGE
OF THE HIGH COURT.
Date of hearing:
12
AUGUST 2008
For the
Applicant:
Adv G Jacobs
Instructed by:
Bertus Vertus Attorneys
For the
Respondent: Adv Z S Sibeko
Instructed by:
TM N Kgomo & associates
Date of
Judgment: 23 MARCH 2010