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[2016] ZAGPPHC 644
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Moditlo Estate Homeowners' Association (NPC) v Venter (28796/2015) [2016] ZAGPPHC 644 (4 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 28796/2015
4/8/2016
Reportable
Of
interest to other judges
Revised
In
the matter between:
MODITLO
ESTATE HOMEOWNERS' ASSOCIATION
(NPC) Applicant
and
PIETER
JOHANNES JACOBUS
VENTER Respondent
Reasons
for JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
This is the extended return day of a provisional
sequestration order granted on 23 July 2015 in respect of the
respondent.
2.
The aforesaid return day was extended a number of
times at the behest of the respondent.
3.
When the matter was called and heard on 28 July
2016, I granted a final sequestration order and indicated that I
shall deliver my
reasons in due course. These are my reasons.
4.
The applicant is Moditlo Estate Homeowner's
Association that attends to the management of an estate type
development, known as Moditlo
Eco Estate and situated close to the
towns of Phalaborwa and Hoedspruit in Limpopo Province.
5.
The respondent is the registered owner of Portion
89 of Farm 82, Hoedspruit. The said property is situated within the
boundaries
of the Moditlo Eco Estate and as such, the respondent is a
member of the applicant.
6.
As a member of the applicant, the respondent is
obliged to make payment of contributions levied by the applicant. The
respondent
has failed to pay the contributions. The respondent does
not deny his obligations in this regard and admits that he has
not
paid any contributions.
7.
Various attempts were made by the parties to come
to an arrangement in respect of the unpaid contributions. The
respondent reneged
on his undertakings and remains in arrears.
8.
The applicant on two occasions instituted legal
proceedings to recoup · contributions owing to it by the
respondent. In both
instances the applicant obtained judgment against
the respondent and attempted to enforce the said judgments, resulted
in returns
of
nulla bona
in
each instance.
9.
The
respondent unconvincingly attempted to attack those returns of
nu/la
bona.
In
this regard the respondent bears the onus of proving that the returns
of
nu/la
bona
are
to be impugned.
[1]
He has failed
to do so. The attempt by the respondent to dispute his indebtedness
to the applicant is without merit and of no substance.
10.
None of the other defences raised by the
respondent have any substance. Mr du Toit, who appeared on behalf of
the respondent, did
not, and wisely so, press any. Mr du Toit faintly
attempted to rely on the alleged deposit of an amount of R 170 000.00
into the
trust account of the respondent's attorney of record.
11.
In this regard Mr Vorster, who appeared on behalf
of the applicant, submitted that the defence of the alleged deposit
has no substance.
In this regard he submitted that
(a)
no deposit slip in respect of the alleged deposit
has been attached to the answering affidavit;
(b)
no printout of the respondent's attorney's trust
account to indicate that the alleged deposit had been made;
(c)
no affidavit by the respondent's attorney has
been supplied to confirm or verify the alleged deposit;
(d)
no explanation is provided by the respondent why
the amount of R170 000.00 is not utilised to defray the amount of
R165 000.00 in
respect of arrear contributions.
12.
There is merit in the submission of Mr Vorster.
13.
The respondent is at pains to explain why he did
not honour his undertakings and stated emphatically that he did not
have the money
to make payment of the substantial amount required by
the applicant, which was far less than the amount now tendered. That
statement
by the respondent is further at odds with the allegation of
the alleged deposit of the amount of R170 000.00.
14.
No explanation is provided from where that amount
originates, or why such a large amount is suddenly available, or why
that amount
cannot be utilized to defray the arrears due to the
applicant. There is furthermore no confirmation that the amount of
R170 000.00
is solely earmarked for the payment of any arrear amount
due to the applicant.
15.
It follows that the respondent has failed to
provide adequate reasons why a final sequestration order should not
be granted.
16.
The applicant has complied with the requirements
for the grant of a final sequestration order.
________________________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION
On
behalf of Applicants:
J Vorster
Instructed
by:
E Y Stuart Inc.
On
behalf of Respondents:
Mr D R du Toit
Instructed
by:
Hartzenberg Inc.
[1]
Van Vuuren v Jansen 1977(3) SA 1062 (T) at 1062H -1063C