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[2022] ZAGPPHC 43
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D.F.S v M.N.S (55065/21) [2022] ZAGPPHC 43 (11 January 2022)
S
AFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH ARICA
GAUTENG
DIVISION, PRETORIA
On
this 11
th
day of January 2022
Before
the Honourable Justice Makhoba J
Via
Videoconferencing
Order
granted electronically in accordance with the directives regarding
special arrangements during the National State of Disaster
CASE
NO: 55065/21
In
the matter between
D[....]
F[....]
S[....]
APPLICANT
ID:
[....]
And
M[....]
N[....]
S[....]
RESPONDENT
ID:
[....]
ORDER
Having perused the
documents filed on record as well as the written submissions and
argument on behalf of the Applicant the following
order is
electronically granted:
1.
Variation of Clause 3.1
in toto
of the Settlement Agreement,
that was made an order of Court on 17 February 2020, signed by the
parties on 17 September 2019 under
case number: 76642/2019. Clause
3.1 to be substituted
in toto
with the following:
"3.1 The
parties are joint registered owner of
the
immovable property
described
as
9727
Unit
17,
Ga-Rankuwa,
GAUTENG
herein
after
referred
to
as
"the
immovable
property". The
joint
ownership to be terminated between the parties,
as
follows:
3.1.1 The
estimated
value
of
the immovable property is R
640:-00.0 and each party is
entitled to the half share in the net proceeds of the immovable
property.
3.1.2
The
Plaintiff is still in occupation in the immovable property and
until
the immovable property is registered in the new owner’s name,
the Plaintiff remains
liable
for
the maintenance
and upkeep of the immovable
property, water and electricity, rates and taxes,
comprehensive insurance premium in respect of the
immovable property.
3.1.3
The Plaintiff is
afforded
a
period 3 months to buy the Defendant's
half
share in the immovable property, subject thereto that the Plaintiff
provide guarantees within 3 months from the date of the
granting of
this order.
3.1.4
If the Plaintiff fails
to provide the guarantees within 3 months, the
Defendant is
afforded 3 months to buy the Plaintiff's half share in
the
immovable property, subject thereto that the Defendant provides
a
guarantee within 3
months from
the
period as
indicated
in clause 3.1.3.
3.1.5
In the event that the
Defendant fails to provide the guarantees as
set pit om clause
3.1.4, the immovable property will be placed on
the open
market for 6 months to be sold;
3.1.6
In the event that the
immovable property could not be sold on the
open market in the
6 month period, the immovable
property
will
be
sold on auction for the highest possible bid with a reserve price
equal to the sum of the total liabilities as follows:
3.1.6.1.
The full outstanding amount due to the total authorities;
3.1.6.2.
Auctioneers commissions;
3.1.6.3.
The cancellation costs in respect of the mortgage bond registered
over
the immovable property.
3.1.7
Both parties undertake
to sign all documentation necessary to effect transfer and
registration of the immovable property into the
name of the
new owner on written demand, should either party fail to sign the
necessary document within
7
days of written demand, the
sheriff of the High Court of South Africa who has jurisdiction is
authorized to sign such documentation
on behalf of
the
defaulting party's
costs.
3.1.8
In
the
event of
the
sale of the immovable property, whether
on
open
market and/or auction, the nett proceeds to be
divided between the parties."
2.
The Respondent is interdicted and prohibited to interfere and/or
sabotage the marketing of the immovable property, that the Respondent
is interdicted from restricting access to the immovable property
from
any estate agents and/or any potential buyers.
3.
The Respondent is ordered to pay the costs of this application.
BY
ORDER
REGISTRAR
Counsel
for the Applicant: M Coetzee
076 813 8003