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[2019] ZAFSHC 231
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Mothupi v Mothupi (1664/2018) [2019] ZAFSHC 231 (5 December 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1664/2018
In
the matter between:
PABALLO
TABITHA
MOTHUPI
Applicant
and
BEN
FRANCIS
MOTHUPI
Respondent
HEARD
ON:
28 NOVEMBER 2019
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
5 DECEMBER 2019
[1]
The applicant is seeking an order to compel the respondent to comply
with the provisions of the Deed of Settlement incorporated
into a
Court Order dated 19 July 2018. These in broad terms, concerns the
transfer of ownership of both the movable and immovable
property.
[2]
There is no dispute regarding the interpretation of any provision of
the Deed of Settlement. The parties are also ad idem that
the
respondent has not complied with them. Neither has the applicant
invoked the relevant provisions demand compliance thereof.
There is
also no dispute that both are bound by its terms as incorporated in
the Court Order.
[3]
The contention of the applicant is that the respondent is neglecting
and/or refusing to sign the necessary documentation in
order to
transfer the motor vehicle into her name. In response, the respondent
contends that he had paid the financers in full
and await them to
furnish him with the documents to effect transfer as per the
agreement.
[4]
Another frontier of the disagreement pertains to outstanding rates
and taxes levied on the immovable property. It is the case
of the
applicant that the respondent is not making payments towards this
debt. This is vehemently denied by the respondent. It
was pointed
that the parties cannot owe an entity called Centlec because the
property is supplied with pre-paid electricity.
In any event
these will be paid to the local authority before transfer is
effected.
[5]
The last and probably the most contentious aspect is the outstanding
purchase price of the immovable property owed to the applicant.
The
applicant is seeking an order to compel the respondent to pay it. The
respondent is resisting on the basis that he does not
have funds to
settle the amount at the moment. The high-water mark of his case is
that the Deed of Settlement does provide a remedy
in the event of
non-compliance by any party to the agreement.
[6]
In terms of clause 5.2.3 of the Deed of Settlement, the respondent
must furnish the applicant with a proof of payment on request
of the
motor vehicle. This debt was paid in full in July 2019. At best the
respondent had until 31 July to comply with clause 5.2.4
which
requires him to ensure that the motor vehicle is registered in the
name of the applicant. The papers are silent on what he
had done to
comply with this clause. The only plausible explanation was oral
submission of his counsel that he is awaiting the
necessary
documentation from the bank (finance house). No explanation was
tendered about efforts he embarked upon in order to solve
this
situation. In that regard, I conclude that he has failed to comply
with the agreement and therefore the applicant has made
out a case
against the respondent and is entitled to the relief sought.
[7]
The next issue is that the respondent has failed to pay the applicant
her half share of the purchase price. The reality is that
the
respondent has made part payment and stopped because of financial
constraints. There is no legal basis for the application
because
clause 5.3.6 specifically provides that in the event that the
respondent does not comply, the applicant can transfer the
property
into her name. Should they both failed to do so, they must sell it
for the market related price as stipulated in clause
5.3.7.
Instead of invoking these provisions, the applicant prematurely
launched this application. It stands to reason
that the
applicant cannot succeed.
[8]
The last aspect is the non-payment of the rates and taxes to the
relevant authority or entity. The reference is made about numerous
invoices issued against her in this regard. I could not encounter any
invoice and/or demand (issued against the applicant) that
the
respondent is not paying the same as stipulated in the agreement.
There is no evidence to sustain the allegations levelled
against the
respondent. There is no merit in this claim.
[9]
It will only be fair that each party pays his/her own costs.
[10]
Therefore I make the following order:-
10.1 The respondent is
ordered to comply with paragraph 5.2.4 of the Deed of Settlement
on/or before 5 February 2020.
10.2 In the event
that the respondent does not comply with paragraph 10.1 of this
Order, the Sheriff of the Court, Bloemfontein
East is authorized to
sign on his behalf.
10.3 The respondent
shall be liable to pay the costs incurred in terms of paragraph 10.2
of this Order.
10.4 The remainder
of the application is dismissed.
10.5 Each party to
pay his/her own costs.
__________________
M.
A. MATHEBULA, J
On
behalf of applicant: Adv. D. de Kock
Instructed
by: Phatshoane Henney
BLOEMFONTEIN
On
behalf of respondent: Me J Pedzisai
Instructed
by: Pedzisai Attorneys
BLOEMFONTEIN