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[2015] ZAGPPHC 500
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Kuppusamy v Pillay (56587/14) [2015] ZAGPPHC 500 (12 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number: 56587/14
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
HUGHES
J
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:
"4. IMMOVABLE
PROPERTY
It is
agreed
that
the
immovable
property
situated
at
Unit
60
San Pablo Pretoruis
Street,
Varna
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
TH
of June 2015 In the matter
between:
MARLYNILOGANATHAN
KUPPUSAMY Applicant
And
AVENDARAM P
LLAY
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 dated 25 August 2014 shall stand as his
Notice of Intention to Defend;
4. The Applicant
shall deliver her Declaration within 15 days &om the date of the
grant of this Order, whereafter the
ordinary rules applicable to
pleadings and trials shall apply; and
5. Costs of this
application are reserved for the trial court.
2015
-06- 1 1
BY
ORDER
______________
REGISTRAR