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[2015] ZAGPPHC 116
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Lukhele v Fernbrook Estate and Others (61719/13) [2015] ZAGPPHC 116 (17 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 61719/13
DATE: 17 FEBRUARY
2015
IN THE MATTER
BETWEEN
LUKHELE SIFISO
FRED
.................................................................................................................
Applicant
and
FERNBROOK
ESTATE
........................................................................................................
First
Respondent
HOMEOWNERS
ASSOSICATION
REGISTRAR OF DEEDS,
PRETORIA
.............................................................................
Second
Respondent
THE STANDARD BANK OF
SOUTH AFRICA
LTD
........................................................
Third
Respondent
JUDGMENT
LEGODI. J
[1] In this matter,
the applicant Mr S F Lukhele initially asked for relief as follows:
“
1
.
That the claim by
the First Respondent for outstanding levies and penalties against
Ignatia Lindi Molefe, the current registered
owner of Erf 1198,
Moroeladal X36, Registration Division IQ, Gauteng, is declared to be
personal right.
2. The
endorsement of the right referred to in paragraph 1 above by the
Second Respondent against the title deed of Erf 1198, Moroeladal
X36,
Registration Division IQ, Gauteng is declared to be null and void,
alternatively, non-pro scripto.
3. The Second
Respondent is to remove from the Deed of Transfer T2976/05 the
condition(s)/endorsement(s) referring to the First
Respondent’s
right(s) referred to in paragraph 1 above.
4. The Second
Respondent is ordered to effect transfer of Erf 1198, Moroeladal X36,
Registration Division IQ, Gauteng, held by Deed
of Transfer T2976/05
to the applicant and his wife Xolile without requiring the consent of
the First Respondent.
5. In alternative
to paragraphs 1, 2, 3 and 4 above:
5.1 that against
payment by the Applicant to the First Respondent of the amount of
R147 000.00 the First Respondent be ordered to
issue the Applicant
with a clearance certificate and/or take such other steps as are
required by the Second Respondent in order
to effect transfer of Erf
1198, Maroeladal X36, Registration Division IQ Gauteng, held under
Deed of Transfer T2976/05, situated
at 14 Bushwillow Avenue,
Fernbrook Estate, Inchanga Road Craigavon, into the name of the
Applicant and his wife Xolile;
5.2 in the event
the First Respondent fails and/or refuses to issue the clearance
certificate in prayer 1 within fourteen calendar
days of payment of
the amount of R147,000.00 by the Applicant to the First Respondent,
that the Second Respondent hereby be ordered
to transfer Erf 1198,
Maroeladal X36, Registration Division IQ Gauteng, held under Deed of
Transfer T2976/05, situated at 14 Bushwillow
Avenue, Fernbrook
Estate, Inchanga Road Craigavon, into the name of the Applicant and
his wife;
5.3 that the
Sheriff of this Honourable Court hereby be authorised and directed to
sign such documents and to take such steps as
may be further required
for purposes of transfer of Erf 1198, Maroeladal X36, Registration
Division IQ Gauteng, held under Deed
of Transfer T2976/05, situated
at 14 Bushwillow Avenue, Fernbrook Estate, Inchanga Road Craigavon,
into the name of the Applicant
and his wife;
6. costs of this
application, only if opposed; and
7. further and/or
alternative relief’.
[2]
In the light of the decision in the unreported matter of
Willow
Waters Homeowners Association (PTY)Ltd v Jerry Sezde Koka NO and
others (768/13)[2014] ZASCA 220
handed
down on the 12 December 2014, the applicant confined himself to
relief sought in prayer 5 quoted above. The R147 000.00 tendered
in
prayer 5 is in respect of the amount which the applicant says is not
affected by prescription. A background to the dispute is
necessary:
One Ignatia Lindiwe Molefe (“Molefe”) is the registered
owner of property situated at Erf 1198 Maroeladal
X36, Registration
Division IQ Gauteng (“the property”). The mortgage bond
was registered against the property in favour
of Standard Bank, the
third respondent. Standard Bank is not participating in these
proceedings, although cited as a party. Molefe
defaulted in servicing
the bond and as a result default judgment was obtained against him.
Subsequent thereto, the property was
sold to the applicant at a sale
in execution on the 14 June 2011.
[3]
When the applicant wanted to have the transfer of the property to be
registered in his names, the first respondent refused to
issue a
clearance certificate in respect of rates, levies and other services.
Its contention being that until the arrear amount
owed to it in
respect thereof is paid, it was not prepared to issue a clearance
certificate. It took the point that, it has a real
right registered
in Deeds Registry. The first respondent’s right in this regard
also forms part of the conditions of sale,
in execution. That is, the
applicant is required,
inter
alia,
to
pay rates, taxes and other charges necessary to effect transfer
subject to all conditions specified in the deed of transfer of
the
property upon the request of Standard Bank’s attorneys.
[4] As on the 13
September 2013, the first respondent insisted that it was entitled to
payment of an amount of R339 104.44 which
included levies, penalties
and seemingly untaxed legal fees, which amount goes further back than
three years from the time the
figures were provided to the applicant.
The amount is said to increase by round about R7208.29 per month with
compounded interest
accruing on the balance.
[5]
Initially, the applicant saw the dispute as revolving around the
question whether the right of the first respondent is a real
right
against the home owner at the time the property is registered in his
or her name and as such capable of being registered
against its title
deed as a conditional endorsement and enforceable against subsequent
owners of the property. The question was
settled in the affirmative
in
Willow Waters
Homeowners Association (PTY) Ltd.
As
a result the applicant abandoned his main relief quoted in paragraph
1 above.
[6]
The second question is whether the normal prescription period of
three years applies to the charges levied as per annexure F,
being a
breakdown of the amount owed to the first respondent. This in my
view, was the only crucial issue to be decided in this
matter. Of
course, counsel for the first respondent persisted with his two
points in
limine
raised
in the first respondent’s heads.
[7] The point raised
was that the Standard Bank has not been served with the present
application. At one point, the submission moved
to the suggestion
that there has not been a proper service, in that the application was
not served by the Sheriff.
That is, every
initial legal process must be served by the sheriff on the party
against whom the process has been issued. I find
the point raised as
being on a fishing expedition. The application was served on Standard
Bank’s attorneys who are attorneys
of record in the action
proceedings instituted against Molefe. They were accepted and there
has not been any objection. But, most
importantly, the point was not
raised in the answering affidavit. The suggestion was that it was not
necessary as it was a point
of law that did not need to be raised in
the answering affidavit. In my view, there is no basis for the
submission. It is a factual
issue.
[8] The other issue
raised as a point in limine was the non-joinder of Molefe and the
Sheriff. It was urged that both of them have
substantial interest in
the relief sought by the applicant. That might be so, but I do not
think that the interest of Molefe or
the Sheriff is substantial or
material, seen in the context of the relief sought. The dispute is
between the first respondent and
the applicant. That is, whether the
applicant is obliged to pay to the first respondent an amount in
respect of levies, rates,
taxes and other services before clearance
certificate can be issued. In any event, insofar as Molefe is
concerned, she cannot be
traced. Perhaps that explains why judgment
and execution by Standard Bank proceeded without Molefe participating
in those proceedings
and why the first respondent never enforced its
claim against Molefe.
[9] Turning to the
prescription defence, the suggestion was that it is not available to
the applicant. The applicant is not a debtor
to the first respondent
Molefe is, so the argument went. That cannot be correct. Refusal to
issue clearance certificate required
for the purpose of having
transfer registered, is as a result of the Molefe’s
indebtedness to the first defendant. Therefore,
if in law, Molefe
would have been entitled to raise a prescription as a defence against
the first respondent’s claim, so
should the applicant.
[10] The amount of
R147 000.00 is said to have been calculated by the applicant’s
attorneys, based on the figures provided
by the first respondent. It
was calculated by adding the amounts for the three years directly
preceding the date upon which the
first respondent indicated its
refusal to give the applicant a clearance certificate without payment
thereof by the applicant.
The attorney is said to have prepared
Annexure A. the annexure was not part of the founding affidavit. The
first respondent therefore
did not have the opportunity to deal with
the correctness of the calculation based on the fact that
prescription applies. Therefore
the relief in prayer 5 cannot be
granted as it is.
[11] Inasmuch as
counsel for the first respondent sought to argue that the relief in
prayer 5 is not based on prescription, I find
it necessary to deal
with the concern before I conclude. The initial contention was that
no allegation of prescription was made
in the founding affidavit and
that it was only raised in the replying affidavit, to which the first
respondent had no opportunity
to respond thereto. Of course this is
not correct.
[12] In paragraph
5.2.2 of the founding affidavit the applicant raises one of the two
issues as follows:
“
Whether
the normal prescription period of three years applies to the charges
levied as per annexure F hereto’’
[13] Annexure F is a
printout from the first respondent. The amount outstanding and due to
the first respondent is indicated as
R333 553.66 dating as far back
as 1 March 2007. At that time, an opening balance was recorded as
R2884.52. Apparently, since then
there has never been any payment by
Molefe. So as on the 31 July 2012, the closing balance was R333 553
66.
The applicant
further in the founding affidavit deals with the prescription issue
as follows:
“
6.5.1
All the items listed in annexure F constitute an ordinary debt which
prescribes within three years”.
[14] I am therefore
satisfied that the prescription point was not raised for the first
time in the replying affidavit. In its answering
affidavit, the first
respondent and dealing with prescription, dismissed it as being
irrelevant, alleging that the applicant agreed
to payment thereof in
terms of the conditions of sale in execution. Similarly, in dealing
with paragraph 6.5.1 as quoted above,
the first respondent states:
“
25.2
The applicant has conveniently failed to appreciate that he agreed to
conditions of sale in so doing agreed to pay all the
amounts charged
owed in respect of the property. Similarly, the debt relates to the
property. Whether it is a real or personal
is with respect
irrelevant”.
[15] Of course the
debt owed to the first respondent by Molefe also relates to the
property in question. An undertaking by the applicant
to pay all
arrears, in my view, cannot be a waiver of the applicant’s
right to raise whatever defence is sustainable in law.
It cannot be
that by concluding the sale agreement in execution, the applicant,
revived all the claims that might have prescribed.
[16] Consequently, I
hereby make an order as follows:
16.1 The applicant
is hereby ordered to pay to the first respondent an amount to be
recalculated taking into account any amount
for rates, taxes, levies
and other charges etc. due to the first respondent which may not have
prescribed and calculated by adding
the amounts for the three years
directly preceding the date upon which the first respondent indicated
its refusal to give the applicant
a clearance certificate.
16.2 Upon payment
thereof, the first respondent shall within 15 days from date hereof
issue the applicant with a clearance certificate
and or take such
other steps as are required by the second respondent in order to
effect transfer of Erf. Maroeladal X36, Registration
Division IQ
Gauteng, held under Deed of Transfer T2976/05, situated at 14
Bushwillow Avenue, Fernbrook Estate, Inchanga Road Craigavon,
into
the names of the applicant and his wife Xolile.
16.3 In the event
that the first respondent fails and or refuses to issue the clearance
certificate referred to 16.2 above within
15 days upon payment
thereof, of an amount so calculated as in 16.1 above, the second
respondent is hereby directed to transfer
the said property held
under Deed of Transfer T2976/05 into the names of the applicant and
his wife.
16.4 The Sheriff of
this court is hereby authorised and directed to sign such documents
and to take such steps as may further be
required for the purposes of
transfer of the said property held under Deed of Transfer T2976/05
into the names of the applicant
and his wife.
16.5 The first
respondent to pay the costs of this application, such costs to
include the costs of two counsel.
M F LEGODI
JUDGE OF THE HIGH
COURT
FOR THE APPLICANT:
Adv. C F J BRAND SC
Adv. A GRANOVA
INSTRUCTED BY:
WARNER ATTORNEYS
C/O
GELDENHUYS-BOTHAT INC.
180 Vinko Street
Cnr Vinko & Kunene
Streets
Sinoville, PRETORIA
REF: J STEYN/MRS
HERTZOG/W128
TEL: 012 543 3235
FOR THE 1
ST
RESPONDENT: Adv. B W MASELLE
INSTRUCTED BY:
HEATHER VAN NIEKERK ATTORNEYS
Matter heard: 04
FEBRUARY 2015
Judgment handed
down: 17 FEBRUARY 2015