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[2023] ZAKZPHC 33
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Werner and Another v Barnard N.O and Others (8903/2021P) [2023] ZAKZPHC 33 (17 March 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 8903/2021P
In
the matter between:
DENVER
CAMERON
WERNER
First Applicant
KELLY
LERRIENE
WERNER
Second Applicant
and
PAULA
BARNARD
N.O.
First Respondent
THEODORE
LEONARD DUCKITT
Second Respondent
LINDI
DUCKITT
Third Respondent
THE
MASTER OF THE HIGH COURT,
PIETERMARITZBURG
Fourth Respondent
ORDER
1.
The application is dismissed with costs, such costs to include
the
costs reserved on 13 October 2021.
JUDGMENT
E
BEZUIDENHOUT J
Introduction
[1]
The applicants, Mr Denver Cameron Werner and Ms Kelly Lerriene Werner
brought an application
on an urgent basis, seeking interdictory
relief in part A of the notice of motion and thereafter declaratory
relief, as set out
in part B of the notice of motion. The matter was
set down for hearing on 13 October 2021.
[2]
In part A of the notice of motion, the applicants sought on order
interdicting the
first respondent, Ms Paula Barnard, in her capacity
of executrix of the estate of the late Aletta Maria Duckitt (the
estate) from
finalising the estate pending the outcome of the
application for the relief set out in part B. The applicants also
sought an order
that the first respondent pay costs of the
application
de bonis propriis
, on the attorney and client
scale.
[3]
In the part B of the notice of motion, the applicants sought the
following declaratory
relief:
(a)
That the first respondent failed to grant the applicants vacant
possession of the property
described as Erf [....] A [....], [....]
AP S [....] Road, A [....] (the property).
(b)
That the first respondent is responsible for doing whatever is
necessary to obtain a Certificate
of Occupation from the Msunduzi
Municipality in respect of the property.
(c)
That the first respondent is required to furnish the applicants with
the said certificate
of occupation prior to the finalization of the
estate.
[4]
The second and third respondents, Mr Theodore Duckitt and Ms Lindi
Duckitt, were the
heirs to the estate and no relief was sought
against them, save in the event of them opposing the application, in
which event a
joint contribution towards costs would be sought. The
fourth respondent was the Master of the High Court, KwaZulu-Natal,
against
whom no relief was sought
[5]
The first, second and third respondents opposed the application and
subsequently filed
answering affidavits. The fourth respondent only
filed a report in which it stated that the first respondent had not
yet been discharged
from her duties.
[6]
On 13 October 2021 no relief was granted and the matter was simply
adjourned sine
die. The matter subsequently came before me as an
opposed motion
The
applicants’ case
[7]
The facts set out in the first applicant’s founding affidavit
are rather brief
and lacking in detail. It is alleged that the first
respondent sold the property, which was an asset in the estate, on 1
September
2020 to the applicants.
[8]
It is alleged that in terms of the agreement of sale, the applicants
would be granted
vacant possession of the property upon registration
of transfer. Clause 2 of the agreement of sale, which was annexed to
the founding
affidavit, refers to ‘vacant occupation’
being given upon registration of transfer.
[9]
The applicants apparently took occupation of the property on 4 August
2021. It is
alleged that the property was sold without an occupancy
certificate, which is a mandatory requirement for the occupancy of
immovable
property in terms of section 14(4)
(a)
of the
National Building Regulations and Building Standards Act 103 of 1977
(the Act).
[10]
The applicants annexed an email to their papers, which emanated from
the Msunduzi Municipality,
dated 26 August 2021, and in particular
from Mr Bongeka Mnyandu, who is a building inspector. In the email,
addressed to the first
respondent, he indicates that he conducted an
inspection on 25 August 2021 and that the property is not ready to be
occupied. He
advised ‘clients’ to vacate the house
immediately. He referred to a number of certificates being
outstanding, namely
completion certificates for the structural and
storm water, an electrical compliance certificate, a plumbers’
compliance
certificate, a glazing certificate, a gas installation
certificate and a soil poisoning certificate.
[11]
The applicants allege that the first respondent was obliged to give
them ‘vacant possession’
which means lawful possession.
The first respondent could not have granted ‘vacant possession’
of the property to the
applicants on registration of transfer without
also ensuring that a certificate of occupancy was delivered to the
applicants.
[12]
The interdictory relief set out in part A of the notice of motion was
no longer an issue and
the applicants were only pursuing the relief
in part B. I therefore do not consider it necessary to deal in detail
with the allegations
made regarding the requirements for an interim
interdict.
The
first respondent’s case
[13]
The first respondent pointed out that the applicants failed to
specify precisely or quantify
the scale of the defects in the
property. They appear to say that they have purchased and taken
transfer of a residential property
from the estate and allege that
the improvements to the property suffer from either patent or latent
defects.
[14]
The first respondent stated that the property was registered in the
names of the applicants on
8 July 2021. She referred to section 14(1)
of the Act which provides that an ‘owner of a building…
or any person having
interest therein’, may apply for and be
issued with a certificate of occupancy. The first respondent alleges
that she ceased
to be the owner of the property on 8 July 2021 and
that she lacked legal standing to apply for and obtain an occupancy
certificate.
It would be impossible for her to comply with such an
order.
[15]
The first respondent further stated that there was no contractual
obligation on her to obtain
an occupancy certificate and it was not
specified as a term in the written sale agreement.
[16]
By way of background, the first respondent states that she is in
possession of the building plans
of the property, which previously
belonged to a Mr and Mrs Duckitt, both now deceased. The plans were
approved by the municipality
in February 1992 and October 1993. The
first respondent did not know when the building work commenced. The
late Mr Duckitt himself
was the builder. He passed away on 27
December 2018. Thereafter his son, the second respondent, attended to
the completion of the
building works, which he financed himself. Mrs
Duckitt passed away on 5 April 2020. She previously inherited the
entire estate,
which included the property, form her husband. The
second and third respondents are the only heirs.
[17]
The first respondent further contends that the second and third
respondents engaged in the process
of selling the property and
presented her with the sale agreement, attached to the application
papers, to sign in her capacity
as executrix. She understood that it
was negotiated between the applicants and the second and third
respondents. On or about 20
November 2020, the second and third
respondents negotiated an amendment to the sale agreement without any
reference to her wherein
a reduction in the purchase price was
agreed. The first respondent likewise signed the addendum which was
also attached to the
application papers.
[18]
The first respondent recorded the sale of the property at the amended
price of R3.25 million
in the amended First and Final Liquidation and
Distribution Account in terms of which the proceeds, less inter alia
the claim in
respect of the repairs and completion of the building on
the property, would be paid to the second and third respondents in
equal
shares.
[19]
On 27 July 2021, the second and third respondents were paid their
inheritances. The claim in
respect of the repairs and completion of
the property was for the amount of R559 660.93 and was paid on
22 September 2021,
leaving the estate account with a zero balance. On
10 November 2021 a payment of R19 398.76 was received from the
Msunduzi
Municipality into the estate account.
[20]
In dealing with certain of the allegations in the first applicants’
affidavit, the first
respondent denied that an occupancy certificate
is a mandatory requirement for the sale of an immovable property. The
first respondent
further stated that vacant occupation passed to the
applicants on 4 August 2021. The first respondent denied that there
is any
obligation on her as the executrix to effect repairs and
obtain an occupancy certificate.
[21]
The first respondent referred to the email sent by the building
inspector, Mr Mnyandu on 26 August
2021. She stated that by August
2021 the applicants were in physical occupation of the property. She
requested the building inspector
to inspect the building to address
certain complaints received for the applicants regarding alleged
defects in the building. She
also wanted an impartial verification
and assessment of any possible defects.
The
second and third respondents’ case
[22]
The second respondent deposed to an affidavit on behalf of himself
and the third respondent.
He contended that the relief sought by the
applicants in part B of the notice motion was incompetent. They have
elected not to
cancel the agreement in consequence of the alleged
defect and their remedy is to institute an action for damages.
[23]
The second respondent referred to the so called ‘voetstoots’
clause in the sale agreement
and further alleged that there is no
obligation on a seller to furnish a purchaser of an immovable
property with an occupation
certificate. The applicants have failed
to advance any reasons why they as current owners cannot apply for
the occupancy certificate.
[24]
The second respondent proceeded to place certain additional facts on
record which would not be
within the knowledge of the first
respondent. He stated that his parents lived on the property for 25
years. His father was a builder
and commenced with the construction
of the house after the plans were approved in 1992 and 1993. His
father completed the construction
of all the “wet works”
but then ran out of money. All the brickwork and plastering was
completed and the roof was installed.
The internal fixtures such as
the kitchen and bathrooms were incomplete. His parents moved into the
downstairs section of the house
whilst his father slowly worked
towards finishing the house, which he never did.
[25]
The second respondent employed contractors to assist with the
completion of the house whilst
his mother was still there, sparing no
expense. His mother however moved out of the house around the end of
2019, due to ill health
and subsequently passed away in April 2020.
At the time the work on the house was almost complete. All that
remained was for the
kitchen to be installed and a ‘few snags’
to be attended to.
[26]
The second respondent and his sister decided to sell the house and it
was listed with Remax in
Pietemaritzburg. Remax was then approached
by Maritzburg Property Consultants who introduced the applicants as
the prospective
buyers. Subsequently the agreement of sale was
entered into.
[27]
Some time prior to the registration of transfer, the applicants
requested to be allowed to clear
some bush on the property, which the
second respondent agreed to. Thereafter at around April 2021, the
agent at Remax furnished
the applicants with the keys to the
property. When the second and third respondent visited the property
shortly thereafter, they
noticed that about 2 acres of bush had been
cleared. The property was around 5 acres in extent. There were also
TLB’s, tipper
trucks, a caravan and other earthmoving equipment
parked on the property.
[28]
On another visit to property, before the registration of transfer on
8 July 2021, the second
and third respondent noticed that the
applicants had started building a swimming pool and installed CCTV
security systems. Shutters
had also been installed in the house. They
were unable to say if the applicants had in fact moved into the
property but they certainly
had occupation of it since at least April
2021.
[29]
The second respondent alleges that the applicants started complaining
about certain issues relating
to the electric fence and the plumbing
– apparently ‘a smell’ was coming into the house.
The second respondent
left the first respondent to deal with the
issues as he took the view that the property had been sold voetstoots
and that the applicants
knew they bought the property from a deceased
estate. He was clear that neither he nor the third respondent were
aware of any defects
at the time of the sale. He further denied the
existence of any such defects.
The
applicants’ reply
[30]
The first applicant’s replying affidavit disputed very little
of any of the factual allegations
made by the second respondent. He
denied that the house on the property was basically complete with
only a few snags left to attend
to. He alleged that if that was the
case, the municipality would not have refused to issue the
certificate of occupation.
[31]
The first applicant did not dispute and merely ‘noted’
the allegations pertaining
to how they came to purchase the property,
when and how they took occupation of the property and what occurred
before and after
transfer took place. The first applicant remained
adamant that the first respondent be held responsible for obtaining
the occupancy
certificate, despite the fact that it is in fact the
second respondent who employed and paid builders to complete the
outstanding
work and who clearly did not do what was allegedly
required to obtain a certificate. If anyone should be hold
responsible it is
surely the builders who did the work.
[32]
The first applicant makes it clear that the applicants’ case
has nothing to do with any
patent or latent defects. It has to do
with the granting of vacant possession. The purpose of the sale was
to provide them with
a residential property to live in which is
impossible because the municipality has threatened to demolish the
property as a result
of a lack of an occupation certificate. The
applicants are enforcing the contract by requiring the first
respondent to make good
on the sale and deliver vacant possession.
Occupation is not vacant if it is unlawful, they contend. The
applicants are enforcing
a contractual claim to vacant possession.
Discussion
[33]
The applicants have placed reliance on section 14(4)
(a)
of the
Act. Section 14 relates to certificates of occupancy in respect of
buildings. The relevant portions read as follows:
‘
(1) A local
authority shall within 14 days after the owner of a building of which
the erection has been completed, or any person
having an interest
therein, has requested it in writing to issue a certificate of
occupancy in respect of such building-
(a)
issue such certificate of occupancy if it is of the opinion that such
building has been erected in accordance
with the provisions of this
Act and the conditions on which approval was granted in terms of
section 7, and if certificates issued
in terms of the provisions of
subsection (2) and, where applicable, subsection (2A), in respect of
such building have been submitted
to it;
(b)
in writing notify such owner or person that it refuses to issue such
certificate of occupancy if it is not so
satisfied or if a
certificate has not been so issued and submitted to it.
(1A) The local authority
may, at the request of the owner of the building or any other person
having an interest therein, grant
permission in writing to use the
building before the issue of the certificate of occupancy referred to
in subsection (1), for such
period and on such conditions as maybe
specified in such permission, which period and conditions may be
extended or altered, as
the case may be, by such local authority.
. . .
(4)
(a)
The owner of any building or, any person having an interest therein,
erected or being erected with
the approval of a local authority, who
occupies or uses such building or permits the occupation or use of
such building-
(i)
unless a certificate of occupancy has been issued in terms of
subsection (1)(a) in
respect of such building;
(ii) . . .
(iii)
during any period not being the period in respect of which such local
authority has granted
permission in writing for the occupation or use
of such building or in contravention of any condition on which such
permission
has been granted; or,
(iv) . . .
shall be guilty of an
offence.’
[34]
The first, second and third respondents’ relied on the so
called ‘Voetstoots’
clause which is incorporated in the
clause 5 the agreement of sale. It reads as follows:
‘
The Property is
sold VOETSTOOTS. The PURCHASER is absolutely presumed to have made
him/ herself acquainted with the property hereby
purchased, its
nature, extent, boundaries and locality and furthermore where
buildings are involved, the condition throughout including
brickwork,
floors, roofing, all timbers, fixtures and fittings, plumbing and
electrical installations etc..., and agrees to accept
the same
“voetstoots” (as it stands) the SELLER being absolutely
free from all liability for any detect whether patent
or latent,
error of description or otherwise howsoever…’
[35]
It was submitted on behalf of the applicants that the voetstoots
clause finds no application
as the lack of an occupancy certificate
is not covered by the voetstoots clause. Reliance was placed on
Ornelas
v Andrews Café
.
[1]
It was submitted that the requirement of vacant possession must also
incorporate lawful possession, which cannot happen without
an
occupancy certificate. It was submitted that the municipality has
found that the property is unfit for habitation. This is off
course
not factually correct because the email from the building inspector
being relied upon simply states that Mr Mnyandu had
‘advised
clients to vacate the house immediately’.
[36]
Counsel for the applicant also conceded that the applicants failed to
disclose in the founding
papers, or in the reply for that matter,
what the actual problems with the property were. The building
inspector’s email
only refers to a list of certificates which
are outstanding and an issue with the sewer and storm water.
[37]
Counsel for the applicant also placed reliance on
Naidoo
v Moodley NO
[2]
where Van Zyl J on appeal dealt with a matter where transfer of a
property could not take place because no clearance certificate
had
been issued by the municipality. The municipality refused to issue
the required clearance certificate because previously no
certificate
of occupancy had ever been issued in respect of the property. The
court held at para 19 that ‘the lack of an
occupation
certificate and the work required by the municipality before it would
issue one, are not defects of a physical nature
relevant to the
property and the defendants could find no protection under the
voetstoots
provisions …of the agreement of sale.”
[38]
Counsel for the appellant in
Naidoo
submitted that it was an implied term of the agreement that
occupation had to be given upon transfer and that such occupation
must be lawful. He referred to what was stated in
Van
Nieuwkerk v McCrae
[3]
where
the court held that a purchaser is entitled to assume that a building
has been erected in compliance with all statutory requirements
and
that it can be used to its full extent. The court likewise held
[4]
that the term voetstoots does not apply to the lack of certain
qualities of characteristics.
[39]
In
Odendaal
v Ferraris
[5]
the court held that a voetstoots clause however covered absence of
statutory authorization. Cachalia JA held at para 22:
‘
By contrast, the
absence of the statutory approvals for building alterations, or the
other authorisations that render the property
compliant with
prescribed building standards, such as were at issue in
Van
Nieuwkerk
, and are at issue here, does not render the property
unfit for the purpose for which it was purchased. The respondent does
not
allege, nor could he, that the permissions relating to the
outbuilding and carport render the property unfit for habitation. Nor
does he allege that the municipality proposes to enjoin him from
living on the property, or that he is incapable of acquiring the
permissions necessary to render the alterations compliant with
statutory provisions. The appellant did not deliver to him “something
different from what was bought” as in
Ornelas
. On the
contrary, he received exactly what he purchased, namely an ideally
located, spacious dwelling house with ample parking
space.’
And
further at para 26:
‘
In my view,
therefore, the absence of statutory approval such as is at issue
here, and was at issue in
Van Nieuwkerk
, constitutes a latent
defect. The lack of permission in respect of both the manhole over
the sewer . . . are defects which interfere
with the ordinary use of
the property - thus satisfying the
Holmdene Brickworks
test -
and are therefore latent defects . . . The fact that they also
contravene building regulations does not change their character.
To
the extent that
Van Nieuwkerk
suggests otherwise I
respectfully disagree with it.’
[40]
It should also be remembered that in
Naidoo
,
Nieuwkerk
and
Odendaal
transfer had not yet taken place and the sellers
were clearly obliged to give registration of transfer. In the present
matter transfer
had taken place in July 2021 and the applicants had
already been provided with the keys to the property in April 2021.
[41]
In
Wierda
Road West Properties (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc
[6]
it was held that the absence of an occupancy certificate did not
invalidate the lease. Majiedt JA
[7]
referred in particular to section 14(1A) of the Act and held that the
Act does not expressly place a prohibition on the occupation
of a
building without an occupancy certificate having been issued. It
merely creates a statutory offense.
[42]
In returning to the applicant’s main contention that vacant
possession (defined as free
and unburdened possession or vacua
possessio)
[8]
equates to lawful
possession, I was urged to consider developing the common law based
on the notion that it is reprehensible to
sell a merx when the seller
is aware that the buyer cannot use it for its intended purpose.
[43]
It is trite that the essentialia of an agreement
of purchase and sale are mutual consent or agreement between
the
parties, the thing to be sold and the price for which it is to be
sold.
[9]
In terms of the common
law the seller further has an obligation to take care of the thing
sold until it is handed over and then
to make the thing available to
the buyer and ultimately to transfer ownership.
[10]
The seller is obliged to make available what was sold.
[11]
[44]
In
Norman’s
Law of Purchase and Sale in South Africa
,
the authors
[12]
deal with the
duty to deliver the property free from burdens not specifically
stated at the time of the sale, referred to as the
guarantee of vacua
possession. Where there was a burden like for example a servitude,
‘
the purchaser was
awarded a reduction in price commensurate with the reduced value,
that is, a
quanti minoris
reduction. It is also implicit in
these decisions that all such burdens, if concealed, are latent
defects interfering with the
purpose for which the land was bought,
namely
vacua possessio
, and the award of so-called damages was
a reduction of price by the action
quanti minoris
’.
[45]
There is off course an inaccuracy in the statement made by
applicant’s counsel. The first
respondent by all accounts had
no knowledge of the lack of an occupancy certificate at the time of
entering into the sale agreement.
[46]
Counsel for the first respondent submitted that the knowledge of the
deceased cannot be imputed
to the executor of the estate. Reliance
was placed on
Van
den Bergh
v
Coetzee
[13]
where it was held that the executor ‘does not step into the
shoes’ of the deceased.
[47]
It was also submitted that there is no information on what exactly
the defects are or what the
Municipality found. It is furthermore
open to the applicants to resile from the contract. Most important of
all though was that
transfer took place without any problems.
[48]
Counsel for the second and third respondents submitted that the
applicants were given vacant
possession, being free and undisturbed
possession as held in
Tshandu
v
City
Council of Johannesburg
[14]
and
York
& Co Pty Ltd v Jones NO
.
[15]
It was further submitted that the applicants were doing as they
pleased on the property after taking occupation. The property is
21
000m2 and the applicants levelled 2000m2 where they stored plant and
machinery. They built a swimming pool. It was submitted
that any
latent defects are hit by the voetstoots clause, which includes lack
of statutory compliance.
[49]
The applicants seek an order declaring that the first respondent has
failed to grant them vacant
possession. In my view the first
respondent did all that was required of her as executor. The
applicants clearly received vacant
possession. The applicants
received what they purchased. They had no concerns about what they
were purchasing and there is no indication
in the papers that they
enquired about the occupancy certificate at the time of the sale or
prior to taking transfer. They have
alternatives available to them as
set out in section 14(1A) of the Act and failed to explain why,
as the owner of the property,
they have not taken any of the steps
available to them. If the lack of an occupancy certificate amounts to
a ‘burden’,
which I expressly decline to make a finding
on, the applicants have remedies available to them.
[50]
In light of the above I am further of the view that there is no
obligation on the first respondent
to obtain an occupancy certificate
and to furnish it to the applicants prior to the finalization of the
estate, or at all, for
that matter. In as far as I was urged to
develop the common law, I see no need for that, especially in light
of the authorities
referred to above.
[51]
The application in my view was ill advised and in particular the
format in which the relief was
sought was ill considered and not
appropriate. While I understand that there was a certain amount of
frustration at the actions
of the first respondent, careful
consideration should be given to a matter and the appropriate relief
to be sought before embarking
on any legal action.
[52]
As far as costs are concerned, I see no reason to deviate from the
usual position that costs
should follow the result. Counsel for the
first respondent drew my attention to the fact that previously on 13
October 2021 the
costs were reserved. I will address this in the
order.
[53]
I accordingly make the following order:
1. The application
is dismissed with costs, such costs to include the costs reserved on
13 October 2021.
E
Bezuidenhout J
Date
reserved:
7 November 2022
Date
delivered:
17 March 2023
Appearances:
For
the applicant:
Mr S Moodley
Instructed
by:
Mastross Inc
393 Jabu Ndlovu
Street
Pietermaritzburg
REF: DAM/ WER6/0002
Tel 033 3945828
Email:
dino@mastross.co.za
For
the first respondent:
Mr P Blomkamp SC
Instructed
by:
Austen Smith Attorneys
Redlands Estate
1 George Macfarlane
Lane, Wembley
Pietermaritzburg
Tel 033 392 0500
Email:
WK3@austensmith.co.za
For
the second and third respondents: Mr S Hoar
Instructed
by:
BDE Attorneys
3 Abrey Road ,
Kloof
Tel 031 267 0430
c/o CWN INC
24 Howick Road
Pietermaritzburg
Tel 033 940 2225
Email:
kayleigh@bdelaw.co.za
Health,
when it choose to participate in or Piggyback
;askdfjoiksjdfjiolcvm,asdfjkl;
[1]
Ornelas
v Andrews Café and another
1980 (1) SA 378
(W) at 388G to 390C.
[2]
Naidoo
and another v Moodley NO and others
[2008] ZAKZHC 95.
[3]
Van
Nieuwkerk v McCrae
2007 (5) SA 21
(W) at 28D-E.
[4]
Van
Nieuwkerk v McCrae
supra
at 29A-C.
[5]
Odendaal
v Ferraris
2009
(4) SA 313 (SCA).
[6]
Wierda
Road West Properties (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc.
[2017] ZASCA 170, 2018 (3) SA 95 (SCA).
[7]
Wierda
Road West Properties (Pty) Ltd v Sizwe Ntsaluba Gobodo Inc.
[2017] ZASCA 170
,
2018 (3) SA 95
(SCA)
para
20.
[8]
VL
Hiemstra and HL Gonin
Trilingual
Legal Dictionary
3 ed (1992) at 303.
[9]
G
Glover
Kerr’s
Law of Sale and Lease
4 ed (2014) at 3 – 5.
[10]
G
Glover
Kerr’s
Law of Sale and Lease
4 ed (2014) at 141 – 142, and 162.
[11]
G
Glover
Kerr’s
Law of Sale and Lease
4 ed (2014) at 146.
[12]
RH Zulman and G Kairinas
Norman’s
Law of Purchase and Sale in South Africa
5 ed (2005) at p 155.
[13]
Van den
Bergh
v
Coetzee
2001
(4) SA 93
(T) at 95H.
[14]
Tshandu
v
City
Council of Johannesburg
1947
(1) SA 494
(W) at 497.
[15]
York &
Co Pty Ltd v Jones NO
1962 (1) SA 65
(SR).