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[2017] ZAFSHC 66
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Kirf Johl CC v Labuschagne and Another; In re: Labuschagne v Labuschagne and Others (917/2014) [2017] ZAFSHC 66 (20 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 917/2014
In
the matter between
:
KIRF
JOHL
CC
Applicant
and
ANETTELABUSCHAGNE
1
st
Respondent
THE
SHERIFF OF THE
COURT,
FAURESMITH
2
nd
Respondent
IN
RE
Case
number 917/2014
FREDERICK
WILLEM
COENRAAD
LABUSCHAGNE
Applicant
and
ANETTELABUSCHAGNE
1
st
Respondent
JOHANNES
CORNELIUS
LABUSCHAGNE
2
nd
Respondent
RINETTE
LABUSCHAGNE
3
rd
Respondent
KIRF
JOHLCC
4
th
Respondent
HEARD
ON:
03 NOVEMBER 2016
JUDGMENT
BY:
MATHEBULA,
J
DELIVERED
ON:
20 APRIL
2017
[1]
The Applicant seeks the following orders
on notice of motion
.
They
read as follows:-
1.
An order setting aside the Warrant of
execution (attached hereto marked
as
Annexure
"A")
.
2.
The
First
Respondent be
ordered
to
pay
costs
of
this
application on
a
party and party scale, and in the event that the First Respondent
elects to oppose the application, on a
scale as between attorney and client
3.
Further
and/or
alternative
relief.
[2]
The application is vehemently
opposed by the First Respondent who is the erstwhile member of
the Kirf Johl CC.
[3]
On the 5
th
November 2014 my sister Mbhele AJ
(as
she then was)
handed down an order
that the Applicant pay the purchase price of the member's interest
belonging to the First Respondent within
thirty
(30)
days of the submission of the
Valuation Report
.
The
Valuation Report compiled by Daan Havenga dated
2nd
November 2015
calculated the fair
market value of that member's interest to be
R1
266 310,00.
There seem to be
no dispute between the parties on this aspect as both utilize the
figure as the benchmark
for
different
reasons
.
[4]
The Applicant paid over the sum of
R108
012,32
to the First Respondent's
attorneys on the basis that the sum of
R1
132 297,68
has been set-off as the
amount of money misappropriated by the First Respondent during the
period that she was
in
control of the administration and financial affairs of
the Kirf Johl CC
.
The First Respondent caused a Writ of
Execution to be issued by the Registrar of this Court for the amount
that the Applicant has
deducted which is the subject of
this application. The parties are embroiled
in
an
acrimonious divorce. This is indicative in the countless applications
and counter applications in this Court and other divisions.
This is
also the observation of Mbhele AJ (as she then
was)
in her judgement that the
relationship between the members of
the
Kirf Johl CC has reached its lowest ebb to "a level wherein
parties cannot exist together within the Fourth
Respondent''.
[5]
It was submitted on behalf of the
Applicant that substantial evidence has been provided to conclude
that
it was
just and proper to apply a set-off in this regard. In essence, a
prima facie
case
has been made to support that proposition. Further that the concept
"set-off"
draws
its strength and effect through the law and not any act or deed. In
addition that irreparable harm may result should the execution
not be
stayed and the Applicant succeed in establishing the set-off
.
This will be so particularly in
situations where the underlying
causa
may be removed
.
[6]
On behalf of the respondent it was
contended that the applicant is approaching the court for a final not
an interim relief
.
The
submission
was
that
the court should not be concerned with the merits of the underlying
dispute but the enquiry be limited to whether the
causa
is in dispute. The correct
approach should be the application of the principles
of an
interim
interdict.
The applicant was in this regard engaging in self help and
conveniently ignoring the Order of the court per Mbhele AJ
with
unfounded
"theft"
allegations which have not been
pronounced upon by any court. Thus the application should be
dismissed with costs.
[7]
The crux of the applicant's submission is that the set-off draws its
strength and effort from the
law
and not any act or deed.
Set-off
occurs automatically by operation of law.
See
Southern Cape Liquors (Pty) Ltd v Delipous Bellings Bpk
1998 (4) SA
494
C and Standard Bank Ltd v Echo Petroleum CC
2012 (5) SA 283
(SCA).
In this matter the applicant
contend that
he
has
demonstrated the
existence
of the case
in
favour of the set-off.
It
must be noted that no action has been instituted over a period of
more than
two (2)
years
against the
First
Respondent in this regard
.
[8]
I was referred to
Postmaster
General v Taute
1905 T.S. 582
at 590
where
the
Innes C.S
.
said the following:-
"Set-off
like payment, should be pleaded and proved, so that the Court
may give effect to it".
It was
submitted on behalf of the First Responded that the Applicant
randomly on its own accord applied the so-called
"set-off'
without any Court pronouncing on
it. I respectfully agree with these
views
.
[9]
The applicant in this matter is not
applying for an interim order but a final order. The crime of the
"theft" of any monies
by the First Respondent was first
alleged in the papers supporting the application before Mbhele
AJ
.
Even at
that stage it was unquantified and she did not pronounce on it. I am
also not called upon to pronounce on it. It remains
just that, an
allegation. The irreparable harm anticipated has also not
materialised despite the lapse of an substantial period
of time.
It appears that the
Applicant simply chooses not to adhere
to the Order of the Court or if he does
,
do so on his own terms and conditions.
That will
be
an
absurdity if that
is permitted to
prevail.
[10]
The approach to court should be that of
suspending the Warrant of Execution pending the finalization of the
theft claim. In that
event the sole enquiry will be whether the
causa
is in dispute or not. In this matter
the applicant does not dispute the
causa
.
See
Gois
v Van Zyl
2011 (1) SA 148
(LC) It
stand to reason that the Applicant simply intend evading complying
with the Court Order
.
Accordingly
I am of the view that this application must be
dismisse
d
.
[11]
The conduct of the Applicant in electing
to flaunt the Court Order must be frowned upon and be discouraged
.
It is my view that the application was
both
frivolous
and
vexatious
when
the
Court Order
that
had
to
be
complied with was clear and
comprehensive on what should occur once the determination of the
members' interest belonging to the First
Respondent had been compiled by the appropriate expert
.
I could find no reason to deviate from
the rule that the unsuccessful party should pay the
costs. In order
to
demonstrate the
displeasure about
the
conduct
of
the
Applicant,
a much
higher
scale
of
costs
should
be
awarded
against
such
a
party
.
[12]
I
make
the
following
order
.
1.
The application
is
dismissed
.
2.
The
Applicant
is
ordered
to
pay
the
costs
on
a
attorney
and
client
scale.
_____________
MATHEBULA,
J
On
behalf of applicant:
Adv. S D Wagener SC
Instructed
by:
Symington & De Kok
On
behalf of respondents: Adv. S Reinders
Instructed
by:
Honey Attorneys
/roosthuizen