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[2017] ZANCHC 46
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J.B v R.B (2569/2016) [2017] ZANCHC 46 (2 June 2017)
SAFLII
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 AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: 2569/2016
Heard
on: 19/05/2017
Delivered
on: 02/06/2017
In the matter
between:
J.
B.
APPLICANT/DEFENDANT
And
R.
B.
RESPONDENT/PLAINTIFF
JUDGMENT ON COSTS
MAMOSEBO
J
[1] In the initial application Mr J. B. sought the
following relief:
1.1
That the respondent, Mrs R. B., his ex-wife, be ordered to transfer
the property situated at W. C. [...],
Table View, Cape Town, into her
name within 30 days of the granting of the order, failing which she
is ordered to put the property
in question up for sale at a public
auction within 14 days of the expiry of the initial period.
1.2 That in the event that Mrs
B. fails to comply with Prayer 1.1 (above) the sheriff in whose
jurisdiction
the property is situated (Cape Town / Western Cape), is
hereby authorised and directed to put the said property up for public
auction
on the first available date and the sheriff is furthermore
authorised and directed to sign all necessary documents to give
effect
to the transfer of the property.
[2]
Mr and Mrs B. were married in community of property but their
marriage ended in divorce before Lacock J on 09 March 2009.
Each party was legally represented. The decree of divorce
incorporated a Deed of Settlement was made an order of court.
[3] Para 2 of the Deed of Settlement “Annexure A”
reads:
“
2.1
Dat die verweerder betaal aan die eiseres die bedrag van
R1 600 000.00, welke bedrag betaalbaar is binne
ses maande
vanaf datum hiervan of teen registrasie van die eiendomme, bekend as
Erf [...] (P.) (ook bekend as K. [...], P.) en
Erf 402, P. (ook
bekend as H. [...], P.), welke ookal eerste plaasvind.
2.2
Dat die eiendom
geleë te W. C. [...], Table View, Kaapstad, die uitsluitlike
eiendom van die eiseres word en sal eiseres verantwoordelik
wees vir
die betaling van die uitstaande balans op die verband en enige
registrasiekoste verbonde aan die transportering van die
eiendom op
haar naam.
2.3
Dat die partye alle dokumentasie benodig vir die oordrag van enige
van die voormelde eiendomme onderteken en moet eiseres alle
nodige
dokumentasie ten opsigte van haar ledebelang in die J. B. Brokers CC
en Erf […] CC, onderteken.”
Each party was ordered to bear his or
her own costs.
[4]
The couple entered into a separate agreement, “Annexure B”
on 06 December 2012 which regulated the payments to Mrs
B. as well as
the transfer of the property at [...] W. C., Table View, Cape Town
into Mrs B.’s name. Para 1.6 of this
agreement
stipulates:
“
R.
B. undertakes to put the property to the open market to be sold at a
market related price should the bond not be transferred
to R.
B. within 2 (two) months after the full amount due to R. B. have been
settled in full. R. B. shall provide written
proof to J. B. in this
regard.”
[5]
The application in para 1 (1.1 and 1.2) was issued on 23 November
2016 and duly served on Mrs B.. She filed her Notice of Intention
to
Oppose on 21 December 2016 but did not file any Answering Affidavit
or opposing papers to counter Mr B.’s allegations.
[6]
The matter was enrolled for hearing on 27 January 2017. On this day
my sister Erasmus AJ granted the following order by agreement
between
the parties:
“
1.
The respondent shall proceed (either herself or by means of, or with
the assistance of, a financier third party)
with the necessary
actions to transfer the property known as W. C. [...], Table
View, Cape Town (hereinafter referred
to as ‘the property’)
and the relevant bond into her [and/or such financier third party(s)
name] within sixty (60)
days of the date of this order and provide
proof thereof and deliver relevant concomitant guarantees upon
request by the applicant,
failing which the respondent is ordered to
put the property up to be sold at a public auction within thirty (30)
days after
such initial sixty (60) days period.
2.
Both the applicant and the respondent are ordered to sign any
documents and to do
any such things are necessary and/or required to
give full and proper effect to the order in paragraph 1 above.
3.
The applicant shall not be entitled to any remuneration or sale
amount or other benefit as
a result of the aforementioned process.
4.
In the event that the respondent fails to comply with the order in
paragraph 1 above, the
sheriff in whose jurisdiction the property is
situated, is hereby authorised and directed to put the
property up for auction
on the first available date and the sheriff
is furthermore authorised and directed to sign all necessary
documents to give effect
to the transfer of the property.
5.
The issue of costs is reserved and is postponed for hearing on the
opposed roll on 19 May
2017.”
[7]
It is common cause or not in dispute that Mr B. settled the amount in
terms of the agreement which he owed Mrs B.. Mrs B. was
in the
premises obliged to put the property to the open market to be sold at
a market related price in the event that the bond
being transferred
into her name within the stipulated two months. See para 4 (above).
[8]
The two months period within which Mrs B. had to transfer the
property (W. C. [...], Table View, Cape Town) into her name kicked
in
on 19 May 2016 as confirmed by her own attorney who wrote “Annexure
C”:
“
Ons
verwys na bostaande aangeleentheid asook vorige korrespondensie
hierin.
Na
deeglike oorweging en in oorleg met ons kliënt is ons nou van
opinie dat u kliënt wel die bedrag soos ooreengekom afbetaal
het.
Sedert
u bewus is van die logistieke- en ander beperkinge wat ons kantore
ervaar as gevolg van die fisiese afstand tussen ons kliënt
en
ons kantore asook die feit dat die lêer tussen
departemente gewissel het, stel ons u hiermee in kennis dat die twee
maande waarna verwys word in klousule 1.6 van die relevante
skikkingsooreenkoms vandag begin verloop.
Ons kliënt bevestig dat sy
dienooreenkomstig sal handel.”
[9]
After the lapse of two months, which later spanned over four months,
and notwithstanding numerous correspondence and being placed
on that
unless the requested necessary documents are furnished by the close
of business on 16 September 2016 an application would
be launched to
compel compliance the failure endured. Hence this application.
[10]
Mr B. states and I have to agree with him that Mrs B. does not take
the matter seriously enough and that it is not good enough
that she
claims that Absa Bank is unwilling to approve the full amount of the
bond and that she intended to “consult with
a bond originator.”
[11]
The further averments by Mr B. are not without merit where he makes
out his case as follows:
“
7.1
The Court Order and/or settlement agreement referred to herein supra
gives me a clear right or alternatively a prima facie
right to bring
this application.
7.2
The Court Order and/or settlement agreement gives me the right to be
released from the mortgage bond
upon paying off the amount
that was due to the respondent.
7.3
The respondent is infringing on my rights in that:
7.3.1
I am unable to buy any other property due to the fact that the
mortgage bond on the property in dispute is still registered
on my
name and I have not yet been released therefrom.
7.3.2
I am also not sure about the respondent’s financial position
and if she fails to pay the instalment on the mortgage
bond and the
arrears continues to accrue, the mortgagee might institute action
to sell the house on auction and/or
list both our names on the credit
bureaus.
7.3.3
At this point I am not sure what the future holds in regards to the
property hence this application to court to protect me
from harm in
any way possible.
7.4
The matter has been dragging since May 2016 and is still continuing
without any progress on the side
of the respondent.
7.5
This whole issue has already caused me a lot of headaches in the form
of legal costs, failure to buy
another house, inconvenience, possible
credit bureau listing, etc
7.6
It might also cause further damage to me if the matter is not
finalised as a matter of urgency.
7.7
There is no other suitable remedy available other than this
application to force the respondent to comply
with the Court Order
and/or settlement agreement.
7.8
The balance of convenience therefore favours the granting of this
application.”
[12]
It is evident that Mrs B. needlessly frustrated her ex-husband by
dragging out this matter to the point of being obstructionist.
Mr B.
is evidently successful and should not be out of pocket. She should
have offered to pay costs at the inception of the case.
In
Jenkins
v SA Boiler Makers, Iron & Steel Workers & Ship Builders
Society
1946
WLD 15
at 17 Price J stated:
“
I
cannot imagine a more futile form of procedure than one which would
require Courts of law to sit for hours, days, or perhaps even
for
weeks, trying dead issues to discover who would have won in order to
determine questions of costs, where cases have been settled
by the
main claims being conceded. If the court were eventually to say, that
it awarded costs to a particular party because on
the evidence that
party would have won on that issue, would the disappointed party then
be entitled to appeal in order to upset
the decision as to who would
have won on the dead issue that has been tried? This must necessarily
follow if Mr Kuper’s application
is entitled to succeed. When a
case has been disposed of by an offer which concedes the main claim
and the costs of the whole case
have still to be decided, I think the
Court must do its best with the material at its disposal to make a
fair allocation of costs,
employing such legal principles as are
applicable to the situation. This is much to be preferred to laying
down a principle which
require courts to investigate dead issues to
see who would have won on such issues. In most such cases the
litigants would be required
to incur far greater costs than those at
stake. In my view the costs must be decided on broad general lines
and not on lines that
would necessitate a full hearing on the merits
of a case that has already been settled.”
[13]
Adv Thompson, appearing for the applicant, submitted that the conduct
of Mrs B. does not only warrant an award of costs but
such costs have
to be on the attorney and client scale. Mrs B. was afforded ample
opportunity to rectify her non-compliance with
the court order but a
year later she had failed to do so. She was aware of the hearing date
which was reserved for arguments for
costs. However she failed to
either appear or instruct a legal representative to appear on her
behalf. Du Toit & De Beer,
her erstwhile attorneys were
validly served with the Notice of Set down on 15 May 2017 at 09h27.
[14]
A divorce is a status matter where even a successful party is not
regarded as a winner. However, the issue before me has nothing
to do
with the status of the parties but with the agreements that they have
entered into subsequent to the divorce. Mrs B. was
obstructionist and
a punitive cost order is justifiable. See
Nel
v Waterberg Landbouwers Ko-operatieve Vereeniging
1946
AD 597
at 607.
[15]
In the result the following order is made:
The
respondent, Ms R. B., is ordered to pay costs on an attorney and
client scale.
_____________________
MAMOSEBO J
NORTHERN CAPE HIGH COURT
For
the applicant:
Adv DR Thompson
Instructed
by:
Gous Vertue &
Associates
c/o Engelsman Magabane Inc
For
the respondent:
No appearance
Instructed by:
Barnard Inc
c/o Du Toit & De Beer
Attorneys