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[2015] ZAGPPHC 37
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Willow Acres Home Owners Association v Busisiwe (37889/2013) [2015] ZAGPPHC 37 (30 January 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER:
37889 / 2013
DATE: 30 JANUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
WILLOW ACRES HOME
OWNERS
ASSOCIATION
........................................................
APPLICANT
And
MOALE
BUSISIWE
..............................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA, J.
[1]
The applicant was granted a
rule
nisi
for
the provisional sequestration of the estate of the respondent on the
8 November 2013, calling upon the respondent to appear
and show cause
on the 14 February 2014 why a final order of sequestration should not
be made final.
[2]
It would seem that the
rule
nisi
was
extended on several occasions and the matter eventually came before
this court on 4 December 2014 for the confirmation or discharge
of
the
rule nisi.
The
respondent had filed an affidavit opposing the confirmation of the
rule nisi and declaring her sequestration be made final.
I extended
the
rule nisi
to
the 30 January 2015, to afford myself time to prepare a written
judgment.
BACKGROUND FACTS
[3] The respondent,
a single mother of two girls aged 19 and 12 respectively, is a
registered owner of Erf 316, Hadeda Crescent,
Willlow Acres
residential estate and is as such a member of the applicant
association and obliged to pay monthly levies of the
applicant.
[4] It is common
cause that the respondent fell in arrears with her levy account and
consequently, the applicant caused summons
to be issued and served on
her aforesaid Erf 316, Hadeda in the estate for payment of the amount
of R18 845, 86 plus interest and
costs on a scale between attorney
and client, in respect of which the applicant took default judgment
against her on the 5th March
2013.
[5]
The applicant, in an effort to execute and attach the movable assets
of the respondent received a
nulla
bona
return
from the sheriff, which stated that the plot 316 Hadeda Crescent,
Willow Acres was a vacant plot.
[6] The applicant
subsequently brought an application for the sequestration of the
respondent on the strength of the aforesaid nulla
bona. The
application was personally served on the respondent at 3011 Section K
Mamelodi West Mamelodi on 13 July 2013.
[7] The respondent
did not file her notice of intention to oppose, as a result, a
provisional sequestration order was granted on
14 February 2014. The
respondent only filed her notice of intention to oppose three months
later, on the 12 May 2014.
[8] The respondent
subsequently filed her opposing affidavit. It is common cause that
the application for sequestration was served
on a vacant plot, while
the applicant was well aware of the respondent's physical address in
Mamelodi. The respondent averred that
the said sequestration papers
never came to her attention.
[9]
It is common cause that the trigger for the sequestration of the
respondent application was the
nulla
bona
which
was predicated on the judgment debt in the amount of R18 845, 86. The
applicant must on a balance of probability satisfy the
court that the
respondent is insolvent. The Court has a discretion to confirm or
discharge a
rule
nisi
on
the return date, in terms of sl2 (1) of the Act;
vide
Ex Parte Van DerMerwe
1962
(4) SA 71
(O.P.A) at 73 D-E;
Ben-
Tovim v Ben-Tovim and Others
200
(3) SA 325
at 330 H-331.
[10]
The applicant has attached to its papers,
inter
alia,
annexure
"AA2" which is a provisional statement of levies raised
against the respondent during the period of 01 / 08 /
2009 to 01 / 06
/ 2014, reflecting a total amount of R47 220. 63. A close scrutiny of
the statement reveals that the respondent
has been in some instances
double charged, for instance:
2010/11/01
Cutting of grass
04/10/ 2010
R326.00
2010/11/01
Cutting of grass
04/10/ 2010
R326.00
2010/11/01
Cutting of grass
4/ October/ 2010
R325.00
2011/ 01/01
Cutting of grass
04/10/ 2010
R326.00
[11] In some other
instances the respondent was slapped with various monthly building
penalties of R5 000. 00 and R8 000. 00. In
other instances she was
slapped with monthly arrear interest ranging from R361. 89; R1131 .16
and R1 428.02. In other instances
she was debited with untaxed
attorneys' fees.
[12]
The amount of R18 845, 86 forming the basis of the default judgment,
in my view, was premised on,
inter
alia,
duplicated
amounts debited against the respondent's account.
[13]
It is common cause that the applicant levied the respondent with the
above mentioned amounts on the basis that clause 6 of
the memorandum
of Incorporation of the applicant makes provision for the applicant
to charge levies. I however do not understand
the relevant clause to
permit for duplicating of charges nor onerous interest rates and
untaxed attorney's fees. In any event,
duplicating of debts, borders
on the verge of dishonesty or overreaching. The applicant is in my
view, not different from a person
occupying a nominee stature and a
position of trust. He must not only act in its own interest but also
in the interest of all and
sundry of its members, including the
respondent. Certainly overcharging the respondent does not,
demonstrate the fiduciary duty
the applicant holds towards the
respondent. Such conduct was frowned upon in the matter of
Phillips
v Fieldstone Africa (Pty) Ltd and Another
2004
(3) SA 465
(SCA) at 478H-I/J.
[14]
In
casu,
it
would seem that the respondent is desirous of contesting the levies
she has been burdened with. Confirming the
rule
nisi,
would
invariably deprive her of that opportunity; which in my view, regard
to the fact that in other instances she has been double
charged and
that would not accord with interest of justice. The courts should
refuse to confirm a sequestration order where there
is a whiff of
dishonesty or overreaching, as is the case,
in
casu,
in
my view. I further deem it not necessary to decide the question
whether the respondent is solvent or otherwise, for the reason
stated
herein above.
[15]
With regard to costs, I am alive to the fact that mulcting the
applicant with costs, would invariably burden its general membership.
However, in is trite that costs follow the event. In circumstances
such as
in casu,
as
pointed herein above, I see no reason why the respondent should not
be entitled to a costs order, on attorney and client scale.
[16] In the result
the following order is made:
1.
That the
rule nisi
granted
on the 8 November 2013 against the respondent is hereby discharged;
2. That the
applicant is ordered to pay the costs of this application on attorney
and client scale.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE OF HEARING :
04 DECEMBER 2014
DATE OF JUDGMENT
: 30 JANUARY 2015
APPLICANT'S ATT :
EDUARD DE LANGE ATTORNEYS
APPLICANT'S ADV :
ADV M COETZEE
RESPONDENTS'ATT :
HAHN & HAHN ATTORNEYS
RESPONDENTS'ADV :
ADV. A JANSE VAN VUUREN