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[2016] ZAGPPHC 672
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Dreyer v Dreyer and Another (52376/2016) [2016] ZAGPPHC 672 (22 July 2016)
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IN
THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE NUMBER:
52376/16
DATE: 22
July 2016
WILLEM
ALBERT ADRIMN
DREYER
…............................................
Applicant
v
INGRID
DREYER
.................................................................................
First
Respondent
SMIT
&
MAREE
ATTORNEYS
&
PROPERTIES
................................
Second
Respondent
JUDGMENT
MABUSE
J:
[1]
This is a claim for payment of money and for other ancillary relief.
[2]
By a notice of motion issued by the registrar of this Court on 4
July 2016, the applicant, a major male building contractor
with
business and residential addresses situated at Farm Duplex Tzaneen,
Limpopo Province, seeks against the first respondent,
a female
teacher with resident address at [5… ]Little John Street,
Robindale, Randburg and the second respondent, a firm
of attorneys
practising as such at [1..] Schoeman Street, Polokwane, Limpopo
Province:
1.
an order in terms whereof this matter is heard on an urgent basis as
determined by the provisions of Rule 6( 12);
2.
an order declaring that the applicant is entitled to payment
forthwith from the funds held in trust with the second respondent
in the amount of R343,312.23 and R200,000.00, together with
interest on both the aforementioned amounts at the rate of 15.5%
per annum reckoned from 15 November 2015 to the date of final
payment against payment by the applicant to Standard Bank in
the
sum of R202,685.00;
3. an order in terms of
which the second respondent is directed to forthwith effect
payment from the funds kept in such trust
account pursuant to the
court order under case number 74739/2013, to the trust account of
the applicant's attorneys of record,
Du Bruin Oberholzer
Attorneys, Polokwane, in the amount of R343,312.23 and
R200,000.00 together with interest on both the
aforesaid amounts at
the rate of 15.5% per annum reckoned from 15 November 2015 to date
of final payment;
4.
that the second respondent be ordered to retain the balance of the
funds in trust, after payment of the amount in terms of
prayer 3,
pending taxation of the costs orders granted against the first
respondent in favour of the applicant;
5.
that the applicant's attorneys of record be ordered to effect payment
to Standard Bank, account number [030…], held
in the name
of Comclin CC, in the amount of R202,685.00 from the funds paid to
the payment referred to in paragraph 3. This
application is opposed
by the first respondent.
[3]
The applicant's cause of action arises from the following set of
facts. On 15 November 2015 this Court granted the following
order
against the first and second defendants. The first and second
defendants in the said
matter which was case number 9695/14 are the first and second
respondents respectively. The judgment was
granted as follows:
Claim 1 1.
Payment if the sum of R343,312.23;
2. Interest
at 15.5% from date of judgment to date of payment;
Claim 2 1. Payment
in the sum of R200,000.00;
2. Interest at 15.5% from date of judgment to date of
payment; and
3. Cost of action regarding both claims 1 and claim 2
[4] On
1 March 2016, the respondents brought an application before Legodi J
for leave to appeal against the judgment of 15 November
2015. The
said application was refused with costs. The respondents thereafter
petitioned the Supreme Court of Appeal for leave
to appeal. The
petition was lodged with the aforementioned Court on 3 May 2016. On
10 June 2016 the Supreme Court of Appeal dismissed
the petition on
the ground that there was no reasonable prospect of success if leave
to appeal was granted and on the ground,
furthermore, that there was
no compelling reason to hear the appeal.
[5]
On 27 June 2016 the applicant's attorneys wrote a letter to the
first respondent concerning the respondent's petition to the
SCA and
the sum of R595,917 .08. The said letter read as follows:
"1.
Ons heg hierby 'n afskrif van die bevel van die hoogste hot van
appel gedateer 24
Junie
2016 en bevestig dat
die
aansoek om spesiale verlof
afgewys
is met koste.
2.
In
die
fig
daarvan
het
ans
instruksies
om
u nou
aan
te maan
tot
betaling van
die
kapitaal
en
rente van die vonnis soos hierin ten gunste van ans klient
ver/een en werk as volg:
2.
1 Eis 1:
Kapitaal R343,312.23, rente R33,240.35 (15.5% vanaf 15/11/2015
to 27/6/2016), totaal R376,552.58.
Eis
2: Kapitaal R200,000.00, rente R19,364.50 (15 5% vanaf
13/11/2015 to
27/6/2016), totaal R219,364.50.
3.
Die totaal ten opsigte van die kapitaal en rente,
dus uitgesluit koste wat
getakseer staan te
word, beloop dus R595,917 08, welke nou onmiddellik
betaalbaar is. Ons sat so spoedig moontlik
voortgaan met
taksasie en met die restant van die fondse tans op trust by
u kantore ingevolge die hofbevel daar gelaat word tot
na betaling van die
getakseerde koste hierin.
4.
Betaling
van voormelde bedrag moet aan hierdie
kantoor gestuur word by wyse van direkte deposito
l
elektroniese
oorplasing, in ans trust rekening voor die sluit
van
besigheid vandag 27
Junie 2016, die besonderhede
wat
as vo/g
... "
[6]
The respondents failed to pay the aforementioned amount and instead
on 28 June 2016 the second respondent wrote a letter to
the
applicant's attorneys. Part of the said letter reads as follows:
'Uklient
he! skuld aangegaan om Camelin BK h/a Brutwe Projects met Standard
Bank tot die bedrag van R300, 000.00 sander ans klient
se medewete.
Die
vonnis teen ans klient is toegestaan skynbaar op die aanvanklike
borgstelling deur ans klient voor die
egskeidingsgeding.
U
klient he! ten spyte van die klousule in die egskeidingsbevel, soos
hieronder uiteengesit, nogtans voortgegaan en na die egskeiding
skuld aangegaan en die voordeel daarvan vir homself toegeeien tot
ans klient se nadeel ...
Ons
opdrag is om die bedrag nou deur ans klient verskuldig aan Standard
Bank, plus rente
en koste, welke deur u klient verkry
is at te trek van die vonnis bedrag en aan u oar te betaal
met rente tot op hede. Die uitstaande balans deur u klient
verskuldig op 4 Junie 2014 he! die bedrag van
R366,451.00
beloop en
sat
ans eersdaags
voorsien van
die volte
uitstaande balans.
lndien
u klient nie die reeling
wil aanvaar nie moet u ans
asseblief inlig of u instem dat ans die voile kapdale bedrag op
trust hou hangende ans klient se hofaksie
teen u klient vir die
verhaling daarvan.
Ons
heg hiermee aan die vonnisbesonderhede
... "
[7]
On 29 June 2016 the applicant managed to communicate with the
attorneys acting on behalf of Standard Bank and the collection
of
this debt due to their client and mainly discussed the matter with
one Celeste Booysen ("Booysen"). Booysen indicated
to the
applicant that they had been instructed to act on behalf of their
client that they were at liberty to give a 50% settlement
discount
on the account and that they were prepared to accept an amount of
R201,685.00 in full and final settlement on condition
that the
settlement was paid once-off before 30 June 2016.
[8]
The applicant requested Booysen to send confirmation of the said
settlement to the attorneys of record and which was in fact
done on
29 June 2016.
[9]
Now we know that Standard Bank had sued the first respondent in her
capacity as surety for the debts of the Close Corporation
of which
the applicant was the sole member. The claim was for payment a sum
of R366, 451.72, interest on the said amount at the
rate of 17.5%
calculated daily and computed monthly in arrears from 25 November
2013 and for further ancillary relief.. Standard
Bank obtained
default judgment against the first respondent for payment of the
said amount. The first respondent did not want
to settle the debt.
Accordingly her reason for refusing to pay the judgment debt by
Legodi J was to retain the said amount of
R543,312.23 until the
applicant had paid Standard Bank the said amount of R366, 451.72 or
to use the part of the money to pay
Standard Bank's debt. That this
was so is clear from the following paragraph:
"In
opdrag is die bedrag nou deur ans klient verskuldig aan Standard Bank
plus rente en koste welke deur u klient verkry
is at te trek van die
vonnisbedrag en aan u oar te betaal met rente tot op hede. Die
uitstaande balans deur u klient verskuldig
op 4 June 2014 het die
bedrag
van R366,451.00 beloop en sal ans u
eersdaags voorsien van
die voile uitstaande
balans."
[1O]
As indicated earlier upon receipt of the aforementioned letter, the
applicant contacted the Standard Bank's attorneys and
negotiated a
settlement of the debt owing and payable by the first respondent to
it. In terms of the settlement agreement, Standard
Bank was prepared
to accept the once-off payment of R202,685.00 in full and final
settlement of the debt of R405,361.11 provided
the said amount was
paid on or before 22 June 2016. The applicants requested the
Standard Bank attorneys to send a written confirmation
of the
settlement to his attorneys and Standard Bank's attorneys obliged.
[11]
On 29 June 2016 the applicant's attorneys sent a letter to the first
respondent's attorneys. In the said letter the applicant
demanded
payment of an amount of R394,232.09 being the amount of R595,917.08
less the sum of R202,685.00. In the same letter
the applicant gave
the first and second respondent's letter an authority to settle,
from the funds they had, the Standard Bank
debt. In the alternative
the applicant demanded payment of the full amount with the
undertaking that he would settle the debt
of Standard Bank and
having done so provide them with proof of payment. Despite the
applicant's attorney's demand for payment
of the said amount by
close of business day on 20 June 2016, the respondents still failed
to comply with the court order or the
demand.
[12] Instead
of complying with the terms of the applicant's attorneys' letter
dated 29 June 2016, the first respondent's attorneys,
in their reply
dated 29 June 2016 to the applicant's attorneys' letter dated 29
June 2016, attached a copy of the summons issued
by Standard Bank of
South Africa Limited against the first respondent but still refused
or failed or neglected to comply with
the court order and the demand
made by the applicant's attorneys on 29 June 2016. This time the
reason they gave for failing
to do so was as follows:
'U
klient het ans klient se goeie naam en eer skade aangedoen met sy
hande/ing en word
daar voile
regte
voorbehou
hierin.
Ons
sal nie afwyk van ans voorstel van 28 Junie 2016 nie en moet u nou
aandui of u die stappe wat u beoog teen ans firma oar te
hou
aanhangende die betekening van die dagvaarding en hangende van die
saak ,alternatiewelik, of u verlang dat ans die interdik
bring vir
opskorting van stappe ten einde ans klient se eis teen u klient af
te dwing.
"
[13]
On 30 June 2016 the applicant's attorneys wrote a letter to the first
respondent's attorneys. In their said letter, the applicant's
attorneys pointed out to the first respondent's attorneys that:
"4.
Op 29 deser skryf ans aan u en fewer bewys dat Standard Bank 'n
bedrag van R201,685.00 sal aanvaar fer voile en finale
vereffening
mits die bedrag teen 30 Junie 2016 betaal word. In hierdie skrywe
merk ans dat die bedrag van R201,685.00 afgetrek
kan word van die
bedrag verskuldig aan ans klient, a/ternatiewelik, dat ans die
bedrag
sal betaal uit die fondse wat u aan ans klient
moet betaal ten opsigte van die kapitaal en
rente van
die
vonnisskuld.
5. Ons
skrywe van 29 deser is dus in /yn met die wese van u skrywe van 28
deser en dat die Standard Bank sku/d afgetrek word
van die
kapitaal en rente verskuldig aan ans
klient,
alternatiewe/ik dat hierdie skuld vereffen sal
word.
Verder
is dit gemene saak dat daar drie kostebevele teen u klient verleen
is en
welke koste nou getakseer staan te word en
welke koste betaalbaar is uit die fondse wat deur
u
ingevolge die hofbevel op trust gehou word. Hierdie kostebevele is
ten opsigte van
die aksie, die aansoek om verlof tot
appel en ten opsigte van die aansoek op spesiale
verlof
tot appel. Alhoewel die kosteberekening nag nie gefinaliseer is
me, sal
daardte kostebeve/e 'n astronomiese bedrag
beloop en heel waarskyn/tk meer as R250,000.00 (konserwatiewe
rowwe skatting).
Daar
is dus met respek, gegewe die voormelde, geen rede waarom u nie
aan
ans aanmaning en voorstel van 29 deser kan
voldoen nie. U word nou finaal versoek om
die
betalings (op enige van die twee alternatiewe basisse soos vervat
in ans skrywe van 29 deser) te bewerkstellig voor 13:00
vandag, 30
Junie 2016 by versuim waarvan ans instruksie by die klient sal
bekom insake verdere aksies."
[14]
Instead of complying with the court order or acting in accordance
with the demand contained in the applicant's attorneys
letter dated
29 July 2016, the first respondent's attorneys demanded payment from
the applicant of a sum of R500,000.00 being
in respect of damages
allegedly suffered by the first respondent
"as herm good
name and a fama was destroyed as well as
her ability to
buy movable and fixed
property in future
... "
Furthermore
they stated as follows in the same letter:
"Further
our client is indebted to Standard Bank to the amount of R366,451.
72
together with interest and cost plus future cost towards the
amount of R30,000.00 in order to rescind the judgment entered
against
her
name.
We
hereby demanded (sic) from you to pay the total of R896,451.
72
into our bank account as specified below within 10 days from
the date
hereof
Failing
which
summons will
be
issued."
[15]
It was when all else had failed that the applicant approached this
court for the relief that he seeks in the notice of motion.
[16]
Needless to say, the first respondent launched against the
applicant, a counter- claim in which she seeks an order in terms
of
which the funds already kept in the trust account of the second
respondent are detained in the said trust account pending
the
finalisation of the litigation between Standard Bank of South Africa
Ltd and the first respondent as well as the litigation
proceedings
between the first respondent and the applicant which she will
institute within 30 days of the order, if granted.
The first
respondent also opposes the application of the applicant by way of a
document she calls an answering affidavit, (and
I will explain later
why I say a document that the first respondent calls an answering
affidavit).
[17]
The first respondent states that the judgment that Standard Bank
obtained against her was obtained in her absence and without
her
knowledge. She contends that the said judgment stands to be
rescinded on various grounds. She proceeded in the said document
to
set out the grounds on which the said judgment will be attacked. The
said judgment had, according to the said document, seriously
prejudiced and negatively affected her credit worthiness, her good
name and reputation.
[18]
Furthermore she states in the said document that once the said
judgment was rescinded Standard Bank would be entitled to
continue
with its action against her and the close corporation; that she
would have to file a plea to the claim. For that reason
her ability
in respect of which she might be held liable by Standard Bank in
terms of the particulars of claim was an amount of
far higher than
the amount claimed by the applicant or to be transferred to the
applicant. Then she contends that she has recourse
for the
undetermined amount that she has to pay Standard Bank in respect of
the applicant's debts, in terms of the deed of settlement
and that
at their divorce action in which the applicant undertook to be
liable for all the debts of the close corporation and
in terms of
which furthermore, the applicant indemnified her from any liability
in respect of the debts of the close corporation.
For this reason
she states that under the circumstances the amount that is currently
in her attorney's trust account should remain
in trust pending that
action as the applicant may have to pay her if she is found to be
liable.
[19]
Secondly, she states that she may have to institute an action
against the applicant for defamation and the prejudicial effect
the
judgment has had on her good name and reputation as well as her
credit worthiness. She claims to sue the applicant on the
aforegoing
basis for R500,000.00.
[20]
Thirdly, she has a further claim against the applicant of
R160,000.00 in respect of the outstanding maintenance.
[21]
Fourthly, she has been advised that the settlement agreement she
entered into with the applicant and which was confirmed
by the
divorce court did not reflect their true intention and for that
reason it should be rectified. She will approach the court
and seek
rectification of the said settlement agreement.
[22] Fifthly,
and lastly, the first respondent states in the said document that on
his own version, the applicant points herself
in a precarious
financial position; that he is suffering from financial hardships
and that most probably he will not be able to
pay any amount of the
claim of Standard Bank in respect of Standard Bank or in respect of
any other claims to be instituted against
him.
[23] In
his replying affidavit the applicant took the points firstly, that
the first respondent's "answering affidavit"
has not been
commissioned, which is correct and secondly, that the verifying
affidavit of Eben Smith was signed and ostensibly
commissioned by a
commissioner of oath in Polokwane, already on 11 July 2016 before the
date on which the first respondent would
have signed her founding
affidavit. It is crucial to point out that although these points
were raised in the replying affidavit,
Mr. du Plessis who appeared
for the first respondent did not, both in his argument and heads of
argument deal with these two
crucial aspects. There are material
defects in both the document filed on behalf of the first respondent
and the affidavit of
Eben Smith. I have persistently referred to the
document that the first respondent referred to as an answering
affidavit as a
document. It is a document that was designed to be an
affidavit. It is not an affidavit because it has not been
commissioned.
In the absence of a properly commissioned affidavit
there is no evidence before the court. See in this regard
Wingaartd
vs Grabler
2010(6) SA 148 ECG at 150 par. 8
thereof.
''An
affidavit is a written statement sworn to before a commissioner of
oath. The oath
is administered in terms of the
recommendations made in terms of
s.
1O
of the Justices of the Peace Commissioners of Oath Act 16 of 1963.
In terms of Rule 61 of the rules of
this Court a
notice of motion must be supported by "an affidavit as to the
facts upon which the applicant relies
for relief'.
As such, an affidavit constitutes
the factual
evidence before a court, upon which matter is to be adjudicated.
See Minister of Land
Affairs and
Agriculture
and Others
vs D
&
F
Wevell
Trust and Others 2008(2)
SA
184 SCA
at 200 D. The same
principle applies in the
magistrate's court. See Joes and Barcal Civil Procedure of the
Magistrates Court of South Africa 9h
Edition, volume 2 at 55-12A.
It follows that if there
is no affidavit before a
court in application proceedings in support of the relief claimed,
there is no evidence upon which
the relief can be
granted.
9. It
is trite that in certain circumstances a court has the discretion to
condone strict compliance with the regulations prescribing
the
administration of oaths, but, where no oath were administered,
there is no evidence before the court and the unattested
statement
is pro nonscripto, and incapable of condonation. The
second and third appellants
are accordingly not before
this court, and they were also not before the court a quo."
Secondly
the affidavit of Eben Smith is useless in the light of the fact that
it contains untruths. On this basis alone there
is no reason why
this application should not succeed and the counter-application
should not be dismissed. Thirdly, even if the
document filed by the
first respondent was an affidavit it would be bad in law because it
contains numerous conclusions and not
facts.
[24]
Even if the affidavit were properly commissioned, the respondents
were clearly in contravention of a court order. An order
of court
rightly or wrongly granted must be obeyed. The respondents opt to
have shown respect not only for the order of this
court but also for
the fact that the Supreme Court of Appeal has dismissed their
petition. The attorney acting for the first respondent
ought to have
advised her that it was only proper for her to comply with the court
order. We live in a country where the Rule
of Law reigns supreme.
Our courts cannot accommodate people who flaunt the law openly. The
respondents have intentionally defied
the court order. Their
defiance of the court order by raising excuses after excuses to
frustrate the applicant were not lawful
and justifiable.
"All
orders of this Court, whether correctly or
incorrectly
granted, have to be obeyed until they are properly set aside."
See
Culverwell vs Beira
1992(4) SA 419 WLD at
page 494 A.
[25]
Accordingly I make the following order:
1.
the application is granted;
2.
it is hereby declared that the applicant is entitled to
payment forthwith from the funds held in trust with the second
respondent
in the amount of R343,312.23 and R200,000.00, together
with interest on both the aforesaid amounts at the rate of 15.5%
per
annum reckoned from 13 November 2015 to date of final payment,
against the payment by the applicant to Standard Bank in the
amount
of R202,685.00;
the
second respondent are hereby directed to forthwith effect payment
from the funds kept in trust account pursuant to the
court order
under case number 74739/2013, to the trust account of the
applicant's attorneys of record, De Bruin Oberholzer
Attorneys,
Polokwane in the sum of R343,312.23 and R200,000.00, together with
interest on both the aforesaid amounts at the
rate of 15.5% per
annum reckoned from 13 November 2015 to date of final payment;
the
second respondent be and are hereby ordered to retain the balance
of the funds in trust, after payment of the amount referred
to in
prayer 3 supra, pending taxation of the cost orders granted
against the first respondent;
5. the applicant's
attorneys are hereby ordered to effect payment to Standard Bank,
[account nr. 030....], held in the name
of Comclin CC, in the
amount of R202,685.00 from the funds paid pursuant to the
applicant referred to in paragraph 3 supra;
6. the first respondent
is hereby ordered to pay the costs of this application on
attorney and client scale;
7.
the counter-application is hereby dismissed with costs.
Appearances:
P.M.MABUSE
JUDGE OF THE HIGH
COURT
Counsel
for the
applicant:
................
…
Adv. SG Gouws
Instructed
by:
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,...
De
Bruin Oberholzer
Attorneys
c/o AL
….............................................................
.
Maree
Inc.
Counsel
for the
first
respondents:
…..
Adv. R du Plessis (SC)
Instructed
by:
..........................,,,,,,,,........
Smit
& Maree
Attorneys c/o
Joubert &
…................................................................
Scholts
Attorneys
Date
Heard:
..............................................
19
July 2016
Date of
Judgment:.
.................................
22
July 2016