About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 397
|
|
Kuppusamy v Pillay (56587/14) [2015] ZAGPPHC 397 (12 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: 56587/14
DATE: 12 JUNE 2015
In the matter between:
MARLYNI LOGANATHAN
KUPPUSAMY
...................................................................
APPLICANT
And
AVENDARAM
PILLAY
.................................................................................................
RESPONDENT
Coram: HUGHES J
JUDGMENT
Delivered on: 12 June 2015
Heard on: 11 June 2015
HUGHESJ
1. In this application, the applicant
sought that a liquidator, Jacobus Frederick de Beer, be appointed for
the purpose of the sale
of the immovable property; to collect debt
due to the joint estate, to prepare a final account and to divide the
excess of the
joint estate after payment of liabilities.
2. The respondent resisted the
appointment of the liquidator on the grounds that;-
(a) The applicant had embarked on the
wrong cause to bring this matter by way of motion proceedings and
ought to have proceeded
by way of action by issuing of summons;
(b) From the powers attributed to the
liquidator, the content of the founding affidavit, the answering
affidavit and the replying
affidavit, it was evident that this matter
had a number of disputes of fact that needed to be ventilated by way
of evidence; and;
(c) That the applicant was seeking for
final relief without requesting that the matter be revered for oral
evidence.
3. Briefly, the parties were divorced
on 1 October 2004 in the Durban and Coast Local Division. The parties
concluded a settlement
on 29 September 2004. In the aforesaid
agreement at paragraph 4 the immovable property of the estate was
dealt with. This paragraph
reads as follows;
u4. IMMOVABLE PROPERTY
It is agreed that the immovable
property situated at Unit 60 San Pablo Pretoruis Street, Vorna Valley
Midrand is to be sold and
the proceeds are to be used to liquidate
all the debts of the joint Estate. The Profits received are to be
divided between the
parties. ”
4. To date the parties have not
complied with paragraph 4. In the interim the property has been
leased, vacant for 10 months, the
respondent lived on the property
and finally the property was leased again.
5. During the aforesaid periods, the
respondent was in control of the property. He collected the rentals,
paid the bond and rates
attended to the maintenance thereof and cause
improvement to be conducted. I must hasten to add that the applicant
did at some
stage made contributions to the bond and rates payment.
6. Mr De-Oliweira argued that this
application be dismissed with costs. He stated that the applicant
should have taken her queue
from the respondent’s answering
affidavit and should have foreseen that there were disputes of fact
that needed to be addressed.
She should have also gleaned that there
would be a counter initiated by the respondent. Lastly, it was clear
from the liquidator’s
duties on the applicant’s own
version that if a party is not happy with his determination that
party was free to come back
to court. This he contended clearly
indicates that the appointment of the liquidator would ultimately
serve no particular purpose
to have the resolution sought in
paragraph 4 of the settlement agreement.
7. Mr Saaiman conceded that in the
circumstances the matter should be referred to trial for the disputed
issues to be adjudicated.
Further, this should not be held against
the applicant, as the respondent had for a while done nothing to
ensure that paragraph
4 of the agreement was complied with and was
content to handle the matters of the property as his own.
8. In considering this matter I am
mindful of Rule 6(5)(g), which I set out below for early reference:
‘Where an application cannot
properly be decided on affidavit the court may dismiss the
application or make such order as
to it seems meet with a view to
ensuring a just and expeditious decision. In particular, but without
affecting the generality of
the aforegoing, it may direct that oral
evidence be heard on specified issues with a view to resolving any
dispute of fact and
to that end may order any deponent to appear
personally or grant leave for him or any other person to be
subpoenaed to appear and
be examined and cross-examined as a witness
or it may refer the matter to trial with appropriate directions as to
pleadings or
definition of issues, or otherwise."
9. On the papers, the applicant did not
seek for this court to invoke Rule 6(5)(g) however, in argument Mr
Saaiman conceded that,
that would be the correct route to proceed,
after this was pointed out by this court. Mr De-Oliveira submitted
that the circumstances
where the applicant did not even seek that
Rule 6(5)(g) be invoked it was undesirable to do so mero motu.
10. I refer to the dicta in Joh-Air
(Pty) Ltd v Rudman
1980 (2) SA 420(T)
at 428H- 429B:
“It requires in my view a bold
step, by a presiding Judge in an opposed application, to refer the
matter to evidence or trial
mero motu, because it is a real
possibility that the applicant had decided not to ask for such
procedure to be followed because:
he may not want to be involved in
the cost thereof; his prospects of success, after studying the
answering affidavits, may be slender;
it may possibly lead to an
undesired protracted hearing; the amount involved may be small; the
respondent may be a man of straw
or on account of any of the other
usual considerations in deciding whether or not to apply for the
provisions of Rule 6(5)(g) to
be invoked.”
11. In my view, this is such an
instance where I use my discretion to ensure that a just and
expeditious decision comes to the fore.
The estate of the parties, in
respect of the immovable property has not been finalised from 2004,
some 11 years later the respondent
is administering the property as
if it is his own. The applicant has indicated in the papers that no
matter what she sought finality;
she needed her share from the sale
of the property as she planned for this to be her pension; the
respondent in all decision-makings
in relation to the property had
ousted her.
12. On the other hand, the respondent
in his papers complains that he has been left with the responsibility
of maintaining the property
with no assistance forth coming from the
applicant and he needs to be reimbursed for it. The respondent also
states that he does
not earn much of a salary and had to make do with
the rental he received to cover the expenses in respect of the
property. Is was
done without the assistance from the applicant and
as such he contends that she is not entitled to 50% of the market
related value
of the property as set out in the settlement agreement.
13. I believe that in the circumstances
of this matter it is proper and just to mero motu refer the matter to
trial, in order to
obtain an expedient and just decision. Further, it
is in the interest of justice that the initial intention of the
parties is fulfilled.
On conclusion of the settlement agreement in
September 2004, the parties resolved that the property be sold. To
this end, they
even concluded a purchase and sale agreement with a
prospective purchaser at the very same time that they concluded the
settlement
agreement. Both parties are frustrated in one-way or
another and from the argument advanced by both representatives, for
applicant
and respondent, both are keen to put this issue to bed. In
the circumstances, justice should prevail over the situation that has
been let to develop. This court needs to take a robust approach and
bring to finality the situation that prevails between the parties.
14. Turning to deal with the issue of
costs, the respondent sought that a cost order be award in his favour
as the applicant had
not sought that the matter be referred to trial
from the onset, the applicant when she received his answering
affidavit should
have appreciated that there were disputes of facts
that emerged and should have abandoned this application and lastly
the cause
embarked on by the applicant from the outset was bad in
law. The applicant submitted that the costs should be costs in the
course.
The applicant stated it was the respondent’s attitude
and manner in which he dealt with the issue that brought them to
court
in the first place. In addition, that which the respondent
sought to reduces the applicant right of 50% of the market value of
the property, were issues that were in dispute. The determination
thereof would be an indicator of who was the party that was to
bear
the costs of the application.
15. It should be born in mind that the
decision to refer the matter to trial was made mero motu by the
court. The practicality of
the order sought by the applicant was
taken into account together with the fact that there are disputes of
fact that require adjudication.
It would only become clear after
evidence is lead as to whom the successful party is in respect of
these disputes raised.
16. In my view, the correct order will
be for the costs to be costs in the cause. The trial court after
hearing the evidence would
be in a better position to deal with the
issue of costs.
17. In conclusion I make the duly
attached order marked as “X” an order of court.
W. Hughes Judge of the High Court
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. 56587/2014
Before the Honourable Hughes J
On the 11 of June 2015
In the matter between:
MARLYNI LOGANATHAN
KUPPUSAMY
.........................................................................
Applicant
And
AVENDARAM
PILLAY
........................................................................................................
Respondent
DRAFT ORDER
Having read the papers filed of record,
heard argument in and considered the matter, the following is hereby
ordered:
1. The application is referred to
trial;
2. The Applicant's Notice of Motion
dated 28 July 2014 shall stand as the Applicant's Simple Summons;
3. The Respondent's Notice of Intention
to Oppose datd 25 August 2014 shall stand as his Notice of Intention
to Defend;
4. The Applicant shall deliver her
Declaration within 15 days from the date of the grant of this Order,
whereafter the ordinary
rules applicable to pleadings and trials
shall apply; and
BY ORDER REGISTRAR