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[2023] ZAFSHC 323
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Nedbank Limited v Jersey Advertising CC and Another (433/2022) [2023] ZAFSHC 323 (4 August 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
433/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
NEDBANK LIMITED
APPLICANT
And
JERSEY
ADVERTISING CC 1
ST
RESPONDENT
HELEN TERRY REES
2
ND
RESPONDENT
CORAM
:
KHOOE AJ
HEARD
ON
:
17 NOVEMBER 2022
ORDERS
GRANTED ON
:
18 NOVEMBER 2022
REASONS
HANDED DOWN ON
:
4 August 2023
This
reasons were handed down electronically by circulation to the
parties’ representatives by email. The date and time for
hand-down is deemed to be 16h00 on 4 August 2023.
REASONS
I
INTRODUCTION
[1]
On 18 November 2022, after having heard an opposed
application, I issued the following orders:
“
1. The
respondents shall take all necessary steps to fully comply with their
full obligations in terms of the settlement order
handed down by the
Honourable Acting Judge Snellenburg on 20 September 2018 in
particular the following:
2.
In respect of account number 84[....]01 (Aqua View), the second
respondent shall sign all mandates
needed to enable the applicant’s
sales division to market and sell the property;
3.
In respect of 1.1 above, the second respondent shall update the
mandate should it expire before
the said property is sold and to keep
updating the mandate until the property is successfully sold;
4.
The applicant shall ensure that its sales division is always in
contact with second respondent
in order to enable the successful sale
of property Aqua View:
5.
In respect of account 8[....]01(27/29 Aqua View), the respondent
shall bring the account up to
date by paying arrears owed on this
account.
6.
Each party pay its own costs.”
[2]
Insofar as the reasons are handed down some time after the granting
of the order, I place on record that it
was the end of term and I
unfortunately encountered a persistent health issue which led me to
delaying most of my reserved judgments
and having gone back to my
practice at the beginning of the following term, the terms overlapped
with my practice.
II
THE PARTIES
[3] The
applicant is Nedbank Limited, represented by Adv S Reinders,
instructed by Cliffe Dekker Hofmeyer INC
c/o Webbers Attorneys
Bloemfontein.
[4] The
1
st
respondent is Jersey Advertising CC, represented by
Adv L A Roux, instructed by JNS Attorneys c/o Spangenberg Zietsman &
Bloem,
Bloemfontein.
[5]
The 2
nd
respondent is Helen Terry Rees, sole director of
the 1
st
respondent, also represented by Adv Roux.
III
THE LITIGATION HISTORY AND RELIEF CLAIMED
[6]
The applicant instituted action against the respondents
in this court under case number 433/2016.
[1]
[7]
On 4 June 2018, the action between the parties was settled and a
written settlement agreement signed by all
parties involved, was made
an order of court. Of importance is the intention of the settlement
agreement, which for all intends
and purposes was to resolve issues
between them as articulated in the pleadings that were filed, and put
an end to the claims and
counterclaims against each other.
[2]
[8]
In terms of the settlement agreement, which I quote
verbatim:
[3]
“
the property
situated at 19 Aqua View Street, Deneysville- property bonded under
loan number 84[....]01 will as soon as reasonably
possible be placed
in the open market with the view on selling the property as
expeditiously as possible. The Defendants will also
after property
has been on the market for two months, and has not been sold yet,
immediately be in contact with the Plaintiff’s
assisted sale
division and sign all mandates needed to enable the Plaintiff’s
assisted sale division to assist with the sale
of this property;
Property situated at [....] C[....] G[....], Dullstroom- property
bonded under account number 81[....]01- the
defendants agree to
immediately place this property with estate agents in the open market
for a period of two months, and thereafter
to place this property
with the plaintiff’s assisted sale division and complete all
such forms and such mandates to enable
the Plaintiff to assist in the
selling of this property;
The property 27 and 29
Aqua View Street, Deneysville- property bonded under account number
8[....]01- it is recorded that as a result
of recent tornado to hit
Deneysville area, there is some remedial work to be effected to this
property. In event that the remedial
work is not commenced within two
months from date hereof, the Defendants will service the bond from
the 1
st
day of the next month;
The Plaintiff will
circulate copies of the settlement agreement to its various attorneys
of record with regards to the other two
matters against the first and
second defendants under the following case numbers: Free State High
Court, Bloemfontein- case number
5676/2016. Free Sate High Court
Bloemfontein- case number 184/2016 and Gauteng High Court, Pretoria
Division- case number 55278/16;
The parties agreed
that the above matters will be pended until all the properties have
been sold as listed above, whereafter a reconcilement
will be done of
all bond and loan accounts of the Defendants, to calculate what
amounts remains outstanding by the defendant or
Defendants towards
the Plaintiff. This paragraph does not detract from or amend in any
way the contents of paragraph 8.3. Each
party to pay its own legal
costs.”
[9]
On 23 October 2020, the Plaintiff filed a contempt of court order
application of the Honourable Acting Judge
Snellenburg where the
following orders were sought, which I also quote
verbatim
;
9.1
“Declaring that the Respondents are in contempt of the order (
the settlement order) handed down by the Honourable
Acting Judge
Snellenburg on 20 September 2018.
9.2 Directing
the Respondents to fully comply with their obligations in terms of
the settlement order, and in particular
to do the following:
9.2.1
The Second Respondent: in respect of account number 84[....]01 (19
Aqua View), to sign all mandates
needed to enable the Applicant’s
Assisted Sales Division to market and sell the property;
9.2.2
In respect of account number 81[....]01 ([....] C[....] G[....]), to
pay the Applicant, by no later
than 30 days after granting of this
order, the amount of R 405 208.26 plus interest thereon at the rate
of [~] from the date of
the order to final payment;
9.2.3
The First Respondent must in respect of account number 8[....]01 (27
and 29 Aqua View) to pay to the
Applicant the amount of 675 973.17,
being the amount of accumulated arrears up to and including 1 August
2020, together with interest
thereon at the rate applicable in terms
of relevant agreement, by no later than 30 days after the granting of
this order; and
9.2.4
Thereafter, and only a monthly basis, continuing to service the bond
of the property situated in 27
and 29 Aqua view Street, Deneysville,
mortgaged to the Applicant under mortgage number account 8[....]01.
9.3
Committing the Second Respondent for contempt of court and directing
that she be imprisoned until the Respondents
have complied fully with
their obligations in terms of the settlement order;
9.4 Directing
the Respondents to take all such steps, including the timeous passing
of resolutions and timeous submission
of applications for approvals
and/other registrations, as shall be necessary and/or reasonably
required to conclude, execute and/or
implement the agreements as well
as the transactions contemplated in the settlement order;
9.5
Directing
and authorising the Sheriff of the court, should the Respondents fail
and/or refuse to diligently or timeously take any
of the steps
required to be taken in terms of paragraph 9.4 above, to take all
such steps as the Respondents may have failed to
either diligently or
timeously take, on behalf of or in substitution of the Respondents.
The Sheriff of the Court shall be indemnified
against any loss or
damage that any party may suffer as a result of any act or omission
of the Sheriff of the Court pursuant to
this order. It also needs to
be pointed out that the applicant filed an amended notice of motion
during the course of the litigation.”
[4]
[10]
On 8 September 2022, the Plaintiff brought an interlocutory
application, which served before me, seeking an amendment
of the
Notice of Motion to include the following prayer;
“
The First
Respondent in respect of account 8[....]01 ( 27 and 29 Aqua View) to
sign all mandates needed to enable the Applicant’s
assisted
Sales Division to market and sell the property”
[5]
[11]
I granted the application for amendment and gave leave to submit
further affidavits.
IV
THE APPLICANT’S CASE
[12]
During the hearing of the main application, Mr Reinders for the
Applicant, informed me that the Applicant had abandoned
the contempt
of court prayers and was only moving for specific performance
regarding the obligations in the settlement agreement.
He submitted
that:
12.1 that it
had been 4 (four) years since the settlement agreement was made an
order of court and still the Respondents
had not acted toward the
fulfilment of the settlement agreement. Other than the property 15
Cherry Gove, Dullstroom being sold,
the First Respondent still owed
an amount of R 405 208.26. The Respondents’ argument that on
the strength of the provision
of the settlement agreement, which
stated that the matters will be pended until all properties have been
sold and reconcilement
be done on all bond accounts to calculate what
amount remains outstanding; could never have contemplated between the
parties that
the Respondents would not fulfil their end of the
bargain and frustrate the fulfilment of what was contemplated in the
settlement
agreement.
12.2 the
intention of the parties in entering the agreement was to make sure
that the property in 19 Aqua View be sold,
and the property 27 and 29
Aqua View be serviced, alternatively also be sold. In support of this
submission, I was referred to
Luwala
v Port Noloth Municipality
[6]
where
Berman
J
said
the following;
“
Such a
prayer can be invoked to justify or entitle a party to an order in
terms other than that set out in the notice of motion
(or summons or
declaration) where that order is clearly indicated in the founding
(and other) affidavits (or in the pleadings)
and is established by
satisfactory evidence on the papers (or is given), cf Trustees of the
Orange River Land and Asbestos Co v
King and others HCG 260 at
296-297. Relief under this prayer cannot be granted which is
substantially different to that specifically
claimed, unless the
basis therefor has been fully canvased, viz the party against whom
such relief is to be granted has been fully
apprised that relief in
this particular form is being sought and has had the fullest
opportunity of dealing with the claim for
relief being pressed under
the head of further and/or alternative relief.”
12.3 It was
further submitted that, because the properties had not been dealt
with for 4 years, the other cases were
left hanging. It is therefore
important for the court to intervene to break the stalemate as the
matters could not be held in abeyance
forever.
12.4 The
argument was that the Respondent’s obligation is to renew the
mandate each time it expired. If this is
not plain from the
settlement agreement, it ought to be clear from the settlement
agreement read and interpreted sensibly, applying
the well
established principles of interpretation.
12.5 In
Natal
Joint Municipal Pension Fund v Endumeni Municipality,
[7]
the court said that;
“
interpretation is
the process of attributing meaning to the words used in a document,
be it legislation, some other statutory instrument,
or contract,
having regard to the context provided by reading the particular
provisions in the light of the document as a whole
and the
circumstances attendant upon its coming into existence. Whatever the
nature of the document, consideration must be given
to the language
used in the light of the ordinary rules of grammar and syntax; the
context in which the provision appears; the
apparent purpose to which
it is directed and the material known to those responsible for its
production.”
V
THE DEFENCES
[13]
The respondents’ submissions are summarised as follows:
13.1 the Respondents had
acted in terms of the settlement agreement, therefore they could not
be held in contempt;
13.2 that on the papers,
it is not denied that the Second respondent signed the mandate as
ordered by the court in relation to property
19 Aqua View, and that
even after the first mandate expired, she approached the Plaintiff to
sign a fresh mandate but was informed
that she could not do that, she
would be referred back to the Plaintiff’s legal division;
[8]
13.3 that it is not
disputed on the papers that property 27 and 29 Aqua View had repair
work done and the Respondents had made no
less that twenty six (26)
payments totalling R431 000.00;
[9]
13.4 with reference to
the specific performance, the Respondents argued that clarification
on specific performance had to be made.
Mr Roux argued that the
Respondents had acted in terms of the settlement agreement, but what
the Applicant was now moving for regarding
property 27 and 29 Aqua
View, was not part of the settlement agreement nor the Notice of
Motion;
13.5 Mr Roux argued that
if the court order is considered objectively and as a whole , it is
clear that this application should
never has seen the light of day.
He referred me to the interpretation that the SCA preferred in
Firestone
South Africa (Pty) Ltd v Gentiruco AG
[10]
wherein it was said;
“
The
Court’s intention is to be discerned from the language of the
judgment the order has construed according to the usual
well-known
rules…thus, as in the case of document, the judgment order and
the Court’s reasons for doing it must be
read as a whole to
ascertain its intention.”
VI
THE LAW
[14]
It is a well established that clauses in a contracted must be
interpreted having regard to the language used in the light
of the
ordinary rules of grammar and syntax; in the context of the clauses
being interpreted and the agreement as a whole; and
taking into
account the apparent purpose of the clauses so as to give the
contract a commercially sensible meaning.
[11]
[15]
The court in
City
of Tshwane Metropolitan Municipality v Blair Athol Homeowners
Association
[12]
said the following;
“
This court
has consistently stated within the interpretation exercise that the
point of departure is the language of the document
in question.
Without the written text there would be no interpretive exercise. In
cases of this nature, the written text is what
is presented as the
basis for a justiciable issue. No practical purpose is served by a
further debate about whether evidence by
the parties about what they
intended or understood the words to mean serves the purpose of
properly arriving at a decision on what
the parties intended as
contended for by those who favour a subjective approach nor is it in
juxtaposition helpful to debate the
correctness of the assertion that
would only lead to self-serving statements by contesting parties.”
VII
EVALUATION OF THE EVIDENCE AND SUBMISSIONS BY THE PARTIES
[16]
This matter first graced the court rolls in 2016, by that 2018 the
parties knew exactly what their duties and obligations
were towards
each other. They captured their intentions in the settlement
agreement.
[17]
That agreement had to be read in totality and not in piece meal to
serve the purpose of one, to the detriment of another.
[18]
According to the papers before me, it is clear that the Applicant
performed according to the terms of the agreement. The frustration
comes with the Respondents’ side of the bargain especially
regarding property situated at 19 Aqua View. It has been a lengthy
time that the matter has been pending and there are other court cases
pending.
[19]
It is apparent that the Applicant wants this matter to be dealt with
expeditiously. This is clear from the steps taken from
its side
immediately after the court order was handed down.
[20]
The only thing that bothered me about the Applicants’
submission was that counsel did not address me on whether
the bond at
property 27 and 29 were being serviced.
[21]
I agree that the request to service the bond to date was not before
me, but the main question was whether at the time
the application was
brought, were the Respondents servicing the bond?
[22]
If the answer to that question is negative, then indeed the court
order was not adhered to and therefore the alternative
remedy can be
granted. If the answer was in the affirmative then there was no
reason to insist that the property in question be
sold.
[23] Counsel for
the Respondents submitted that indeed the bond on 27 and 29 Aqua View
was serviced with no less than twenty
six (26) payments. There is
therefore no need to address to insist on the alternative prayer of
sale of the property. I agree with
this submission.
[24]
I also agree with counsel for the Applicant that the continued delay
is detrimental to the Applicant. It was submitted
that even though
the Second Respondent claims that she had previously signed a mandate
for the sale of property 19 Aqua View, there
was no evidence placed
before me to prove that it had reached the Applicant. This was
particularly concerning. It strengthens the
Applicant’s version
that Respondents were intentionally stalling the sale of the
property.
[25]
In order to break the stalemate, a decision had to be taken that
would ensure that the spirit of the settlement agreement
was kept
intact.
VIII
CONCLUSION
[26]
I conclude therefore, that in order to break the stalemate my order
of 18 November 2022, captured in paragraph supra,
were just and fair.
The Applicant has made out a case for specific performance, I however
did not grant an order for costs as the
applicant abandoned the
contempt of court prayers and made no attempt towards the amendment
they had sought.
N
J KHOOE, AJ
On
behalf of Applicant: Adv
S Reinders
Instructed
by: Cliffe
Dekker Hofmeyer INC
c/o Webbers Attorneys
BLOEMFONTEIN
On
behalf of Respondents: Adv A Roux
Instructed
by: JNS
Attorneys
c/o Spangenberg Zietsman
& Bloem
BLOEMFONTEIN
[1]
Founding
affidavit: para 9.
[2]
Founding
affidavit: para 8-32.
[3]
Page 26-27, paras 8.1-12 , annexture KP2
[4]
Notice
of motion , pages 1-3
[5]
Interlocutory
Notice of Motion, page 1, para 1
[6]
1991
(3) SA 98
(C) at 112D-E
[7]
2012
(4) SA 593
, para 18
[8]
Pages
71-72, annexures HTR4 and HTR6
[9]
Page
7, para 24, Respondents heads of argument.
[10]
1977
(4) SA 298
(A) at 304
[11]
Roazer
CC v The Falls Supermarket (232/2017) [2017] ZASCA 166
[12]
2019
(3) SA 398
SCA para 61