About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 958
|
|
Breedt v Breedt and Others (61930/2012) [2017] ZAGPPHC 958 (21 April 2017)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 61930/2012
21/4/2017
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:NO
(3) REVISED.
In the matter between:
MARTIN
BREEDT APPLICANT
Vs
MELANI
BREEDT 1ST
RESPONDENT
SHERIFF CENTURION
WEST 2ND
RESPONDENT
THE REGISTRAR OF
DEEDS 3RD
RESPONDENT
ALL FOR APPLIANCE SERVICES (PTY)
LTD 4TH
RESPONDENT
JUDGMENT
KUBUSHI J
[1] The application before
me is an opposed application for leave to appeal against the whole of
my judgment handed down on 25 January
2016 in which I dismissed the
applicant's application with costs. The applicant seeks leave to
appeal to the Supreme Court of Appeal
alternatively the Full Bench of
this Division.
[2] In the main
application, the applicant sought an order to declare the auction
held on 12 May 2014 and the subsequent agreement
of sale in execution
concluded between the second respondent and the fourth respondent,
null and void for non compliance with
the court order granted on
10 September 2013 by agreement between the applicant and the first
respondent. Ancillary to the said
order, the applicant sought a cost
order, in regard to the additional costs and the wasted costs
associated with the sale in execution,
against the first respondent.
[3] The factual matrix in
this matter is mostly common cause between the applicant and the
first respondent (the parties). The parties
were previously married
to each other and were consequently joint owners of immovable
property situated in Centurion, Gauteng.
The marriage was dissolved
by an order of court on 2 April 2012. As part of the divorce order,
the parties concluded a settlement
agreement which was made an order
of court.
[4] In terms of that court
order the applicant was to pay to the first respondent an amount of
R475 000 on date of transfer as compensation
for her undivided share
in the property. This, however, did not materialise due to what I can
refer to as unforeseen circumstances.
Despite efforts to find an
amicable solution regarding the property, the parties could not
settle the matter which resulted in
the first respondent launching an
application to court.
[5] On 10 September 2013,
the parties entered into another settlement agreement which was also
made an order of court. The said
court order reads as follows:
"By agreement between the parties the following is made an Order
of Court
1.
Both parties shall immediately secure an independent valuation of the
immovable property from two reputable estate agents within
7 days
from date of this order and shall deliver a copy of such valuation to
the other party's attorneys of record. For purposes
of the order the
average value of the two valuations shall be deemed to be the market
related value.
2.
Both parties shall be entitled to market the immovable property in
the open market in an
endeavour
to procure a willing and able buyer for the immovable property at a
market related price over a period of three months
from the date of
this order. Unless acceptable bank guarantees are received from a
purchaser the provisions of paragraph 3 infra
shall apply.
3.
The Second Respondent (the sheriff and second respondent in the
present application as well) shall be authorised to sell the
immovable property, after the lapse of the three months period
referred to in paragraph 2 supra to sell the immovable property
by
public auction for a market related value. For purposes of this
paragraph the market related value shall be the lower of the
two
valuations referred to in paragraph 1 supra. The Second Respondent
shall continue this process until the immovable property
is sold.
4.
From the net proceeds arising from the sale of the immovable property
the Applicant shall be paid the amount of R475 000-00 together
with
interest or the aforesaid amount at a rate of 15, 5% per annum
calculated from 3 July 2012 to date of payment.
5.
Both parties undertake to sign all documentation necessary to effect
transfer of the immovable property into the name/s of the
purchaser/s
failing which the Second Respondent is authorised to sign all such
documentation on behalf of the defaulting party
at such party's
costs.
6.
First Respondent shall be obliged to allow the applicant's estate
agent/s to market the
immovable
property and must co-operate with the said agents
7.
The First Respondent is ordered to pay the Applicant's costs from
lodgement of this application up until January 2013 when the
counter-application was lodged."
[6] It is common cause
that the property was eventually evaluated at the market related
value of R1 400 000. It also appears that
both parties' individual
attempts to sell the property on the open market for the agreed
market related value was unsuccessful.
There is evidence that the
applicant provided the first respondent with no less than two
proposed offers to purchase the property
but none of the two offers
materialised.
[7] When it became clear
that the parties were not able to sell the property, the first
respondent approached the sheriff (the
second respondent in the
application) as mandated by the court order of 10 September 2013, to
have the property sold on auction.
On the basis of the writ of
execution issued by the first respondent the property was attached
and thereafter sold in execution
through the sheriffs auction
process. The property was auctioned off the first round at the
reserve price of R1 400 000. When there
were no bids reaching the
reserve price the sheriff proceeded to auction the property again,
with no reserve price. The property
was eventually sold to the
highest bidder, being the fourth respondent at a price of R1 181 000
which is an amount far less than
the agreed market related price of
R1 400 000.
[8] The applicant raises
various grounds of appeal in the application for leave to appeal. In
particular the applicant contends
that I rescinded and/or varied/or
amended the court order granted on 10 September 2013 by ignoring the
market related value as
contained in the said court order.
[9] At the hearing of the
main application, the applicant's arguments were based on the grounds
that the sale in execution was premised
on a fatally defective
process employed by the first respondent and that the court order of
10 September 2013 did not provide for
the market related value to be
discarded merely because the market related price could not be
attained.
[10] In my judgment I
found the process employed by the sheriff, the sale by public
auction, to be valid. I also interpreted paragraph
3 (the last
sentence thereof) of the court order not to mean that the sheriff
should continue with the process, selling the property
at the same
price of R1 400 000 ad infinitum.
[11] At the hearing of the
application for leave to appeal, the applicant's counsel conceded
that the process followed by the sheriff
when selling the property
was valid. What remained in issue was the interpretation I had given
to the last sentence of paragraph
3 of the court order. The
contention is that the first respondent and/or the sheriff were not
entitled to sell the property at
a lesser price than the agreed
valuation amount of R1 400 000.
[12] The argument by the
applicant is that when considering the intention of the parties
another court will come to a different
interpretation of the said
last sentence of paragraph 3 and find that the property should not
have been auctioned off at a price
less than the agreed valuation
amount of R1 400 000.
[13] The crux of this
application, therefore, lies in the interpretation of the last
sentence of paragraph 3 of the order of 10
September 2013.
[14] An application to be
granted leave to appeal is made in terms of s 17 (1) (a) of the
Superior Courts Act 10 of 2013 (the Act).
The section provides, inter
alia, that -
"1. Leave to appeal may only be given where the judge or judges
concerned are of the opinion that -
(a)
(I) the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;"
[15] It is has now become
trite that the wording of subsection 17 (1) (a) (i) of the Act has,
by the use of the word "would",
raised the bar of the test
that has to be applied to the merits of the proposed appeal before
leave to appeal can be granted. The
requirement is no longer the
reasonable prospects that another court might come to a different
conclusion, but, that the appeal
would have a reasonable prospect of
success. The use of the word "would" in the new statute is
said to indicate a measure
of certainty that another court will come
to a different conclusion[1].
[16] It is not in dispute
that the application before me turns mainly on the interpretation of
the last sentence of paragraph 3
of the court order.
[17] The proper approach
to interpretation has been enunciated in the judgment in Natal Joint
Municipal Pension Fund v Endumeni
Municipality.[2] The court in that
judgment stated as follows:
'[18]... The present state of the law can be expressed as follows.
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 provision or provisions in the light of the
document as a whole and the circumstances attendant upon
its coming
into existence. (my emphasis) 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. Where
more than one meaning is possible each possibility
must be weighed in
the light of all these factors. The process is objective and not
subjective. A sensible meaning is to be preferred
to one that leads
to insensible or unbusinesslike results or undermines the apparent
purpose of the document. . . "
[18] Whilst it is said
that the starting point remains the words of the document, which are
the only relevant medium through which
the parties have expressed
their contractual intentions, the process of interpretation does not
stop at a perceived literal meaning
of those words, but considers
them in the light of all relevant and admissible context, including
the circumstances in which the
document came into being. The former
distinction between permissible background and surrounding
circumstances, never very clear,
has fallen away. Interpretation is
no longer a process that occurs in stages but is 'essentially one
unitary exercise'. Accordingly
it is no longer helpful to refer to
the earlier approach.[3]
[19] In the light of the
above quoted judgments, I am of the view that the applicant's
submission that I did not take the intentions
of the parties into
account when interpreting the sentence in question is incorrect. In
addition to the intention of the parties,
being to sell the property,
I also considered the surrounding circumstances and the circumstances
attendant upon the coming into
existence of the court order. The fact
that the house had not been sold for a period in excess of three
years despite various attempts
by the parties to sell it, played an
important part. I have in my judgment set out various scenarios
indicating the attempts made
by either party to sell the property
unsuccessfully. From the facts placed before me, there is no
indication that the property
will sell at the agreed market related
value of R1 400 000.
[20] Similarly, as
reasoned in my judgment, to grant leave to appeal against the factual
background of this application would be
to cause a fundamental
injustice to the first respondent. The applicant had, at all material
times hereto, the benefit of occupation
and use of the property to
the prejudice of the first respondent.
[22] Leave to appeal must,
in my view, be refused as another court would not come to a different
conclusion on the merits.
[23] The application for
leave to appeal is dismissed with costs.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
Counsel for Applicant: Adv.
C. Zietsman
Instructed by: Anton
Rudman Attorneys
Counsel for 1
st
Respondent: Adv. C. Van Schalkwyk
Instructed by: Ven
& Muller Attorneys
Date heard: 12
April 2017
Date of judgment: 21
April
2017
[1] See The Mont Chevaux Trust (IT 2012/28) v Tina Goosen
unreported judgment of the LCC case no. LCC14R/2014 para 6.
[2]
2012 (4) SA 593
(SCA) para 18
[3] See Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun
Transport (Edms) Bpk
2014 (2) SA 494
(SCA) para 12