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[2021] ZAGPJHC 534
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TUHF Limited v 68 Wolmarans Street Johannesburg (Pty) Ltd and Others (7844/2020) [2021] ZAGPJHC 534 (17 September 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 7844/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
NO
17/09/2021
In
the matter between:
TUHF
LIMITED
Applicant
and
68
WOLMARANS STREET JOHANNESBURG
First Respondent
(PTY)
LTD
10
FIFE AVENUE BEREA (PTY) LTD
Second Respondent
MARK
MORRIS
FARBER
Third Respondent
JUDGMENT
Delivered:
By transmission to the parties via email and uploading onto Case
Lines the Judgment is deemed to be delivered. The date for hand-down
is deemed to be 17 September 2021.
SENYATSI
J:
[1]
This is an opposed application in terms of which the applicant
(TUHF Limited)
seeks an order;
inter alia
, foreclosing on
the first respondent’s immovable property, being 68
Wolmarans Street situated downtown Johannesburg
and known as
Wolbane Mansions, which is a residential apartment building and
accelerating repayment of the full loan amount.
[2]
The first
respondent operates a rental apartment business
and
uses the proceeds thereof to service loan repayments to the
applicant, which loan agreement is secured by a mortgage bond
registered over the immovable property.
[3]
The second and third respondents are sued pursuant to the deeds
of suretyships executed
by them in favour of the applicant for
the debts of the first respondent.
[4]
According to the applicant, the first respondent is in breach of the
loan agreement, not
because it has failed to meet its monthly
loan repayment obligations, but due to its failure to pay
for rates, taxes,
utilities, and other charges and imposts due to the
City of Johannesburg (“CoJ”).
[5]
The applicant also alleges that the first respondent has breached the
loan agreement in
the following respects, namely:
(a)
its failure to obtain and provide an updated electrical compliance
certificate in respect of the elevators
at Wolbane Mansions;
(b)
its failure to obtain and provide the requested fire safety
certificate in respect of Walbane Mansions;
(c)
its failure to provide proof of payment of municipal charges to the
applicant and;
(d)
its failure to provide the applicant with copies of
municipal statements.
[6]
This
application pertains to municipal account
number [....] (“the account”) at the
CoJ. The respondents have addressed this in
their replying papers.
This
has been dealt with in detail by the respondents in their replying
papers.
[1]
[7]
The ownership of 68 Wolmarans Street Johannesburg was acquired by the
first respondent
during March 2014, from around that time, the
respondents’ charges for electricity consumption at
the premises
were debited to the account through the readings of
electricity meter [....]. The first respondent disputes that
electricity
meter [....] is installed at 68 Wolmarans
Street and contends the correct electricity metre number installed
is 63038264
(“electricity meter”).
[8]
As
evidenced by
Mr
Patel's correspondences of 04 May 2017, 29 August 2018, 29
November 2018 and 12 February 2019, the respondent has repeatedly
attempted to resolve the issue. However, the disputed
electricity charges remain unresolved.
[9]
The CoJ disconnected electricity supply to the premises during
April 2016.
This was done despite the debatement of the
account, not having been resolved. The first respondent then
approached court
for relief which was granted on 5 May 2016.
[10]
In terms of the May 2016 Court Order, the CoJ was ordered to:
(a)
provide the first respondent with a statement and
debatement of the account number [....]with itself (CoJ);
(b)
credit to the first respondent's account mentioned
in (a) with all charges which were incorrectly levied against
it;
(c)
credit the first respondent's account mentioned in
(a) above with all
parties
which were incorrectly levied against it;
(d)
certified confirmation from it (CoJ) of the
allocation of free water as stipulated in the
Water Services Act
No 108 of 1997
in
section 9(1)
thereof;
(e)
the CoJ was interdicted from unlawfully
disconnecting water and electricity supply to the account mentioned
in (a) above.
[12]
The CoJ was furthermore directed to deliver accounts on the correct
tariff to the first
respondent in relation to the actual
consumption of water incurred, from the date of the order and duly
supported by actual consumption
remedies directing the first
respondent to effect payment thereof.
[12]
The applicant’s case is that the respondent is in breach of the
loan agreement by
inter alia
failing to pay rates, taxes and
electricity charges owed to the CoJ.
[13]
Notwithstanding the pending litigation between the first respondent
and CoJ over the alleged
failure to pay, the applicant maintains it
is entitled to cancel the loan agreement and accelerate payment.
[2]
[14]
In addition, the applicant contends that the entitlement to cancel
and accelerate the loan exists
although the loan repayments are up to
date. The other assertions are in my view not material as to lead to
the cancellation of
the agreement and acceleration of the loan
repayment.
[15]
The issue for determination is whether the applicant is entitled to
such cancellation and acceleration
of payment under these
circumstances.
[16]
It is within that consumption of principal services that the
Municipality disputes the account
which does not accord with the
services rendered by the municipality. This dispute is in fact common
cause between the parties
in this application.
[17]
The applicant's counsel has referred me to several cases.
[3]
Having considered the cases, I believe the reliance on the referred
cases is misplaced, since the cases are about overdue municipal
accounts in which the Municipality is the litigant. The same
cannot be said about this matter.
[18]
In the instant case, the applicant, has in my view taken the
responsibility of forcing the first respondent
to pay the municipal
account for services, rates and taxes despite the fact that the CoJ
has not itself asserted its rights. This
is, in my view,
impermissible as the CoJ has clearly failed to comply with the
existing court order for debatement of account.
[19]
It follows therefore that the first respondent, would only be in
breach of the contractual term
of the loan agreement if the CoJ
asserted its rights and obtained judgment against the first
respondent. Absent such action, a
court order that the first
respondent is ordered to pay for whatever turns out to be due and
payable to the CoJ is premature, in
my respectful view, allowing the
applicant to rely on non-payment of such services, electricity,
rates, and taxes as a ground to
allege a breach of the loan agreement
entitling it to the cancellation, accelerated payment, and cession of
rental revenue generated
by the first respondent would be prejudicial
to the first respondent. Allowing the applicant to take such
draconian steps when
the first respondent is in fact up to date with
its loan repayments will be an injustice of great proportion.
[20]
Accordingly, I hold the view that the applicant has not succeeded in
making out a case.
[21]
THE CONDONATION APPLICATION
The
respondent’s application for condonation arising from its
failure to file the answering affidavit timeously is granted.
ORDER
[22]
The following order is made:
(b)
The application is dismissed with costs.
SENYATSI
ML
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
REPRESENTATION
Date
of hearing: 19 May 2021 and 20 May 2021
Date
of Judgment: 17 September 2021
Applicants
Counsel: Ádv E Eksteen
Instructed
by: Schindlers Attorneys
Respondent’s
Counsel: Adv G Wickins
Adv M De Oliveira
Instructed
by: Gavin Simpson Attorneys
[1]
AA,
page 003 on Case Lines
[2]
FA, para 52-55, page
001-35 - 36
[3]
Body
Corporate Croftdene Mall v Ethekwini Municipality
2012 (4) SA 169
(SCA); PA Pearson (Pty) Ltd v Ethekwini Municipality and Others
2017
(6) SA 82
(SCA); BCE Bank Ltd v Tshwane Metropolitan Municipality
2005 (4) SA 336
(SCA)