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[2015] ZAGPPHC 539
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G.T.L v N.E.L (57534/14) [2015] ZAGPPHC 539 (19 June 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION.
PRETORIA)
CASE NO: 57534/14
DATE: 19 JUNE 2015
IN THE MATTER BETWEEN
[G.........] [T................]
[L...........]
...............................................................................................
Applicant
And
[N............] [E.........]
[L.................]
.........................................................................................
Respondent
JUDGMENT
LEGODI J
[1] In this application a relief is
sought as follows:
“1.That Rynhart Kruger Attorney
of 658 Wainright Street, Moreleta Park, Pretoria be appointed as
Liquidator and Receiver of
the immoveable property situated at 1…….,
Diepkloof, Zone …., Johannesburg in the joint estate of the
parties
and to effect the division of the proceeds thereof in
accordance with Powers and Duties of Liquidator (Annexure “X”).
2. Costs of this Appiication to be paid
by the Respondent in the event that the Respondent opposes this
application, alternatively
that the costs of this application are to
be costs in the liquidation of the immoveable property of the joint
estate in the event
of the Respondent not opposing this application;
3. Further and/or alternative relief’.
[2] The respondent, the ex-husband of
the applicant, is opposing the application on the basis that the
settlement agreement which
was made an order of the court contains
specific provisions dealing with the manner in which their joint
estate is to be wound
up and divided and that the route followed by
the applicant is not provided in the agreement.
[3] The parties divorced on the 16 May
2012 and settlement agreement was made an order of the court. In
terms of clause 2.1.2.1
of the agreement, the parties agreed that
their joint immovable property shall be evaluated by three valuators
or reputable estate
agents, which valuators or estate agents shall be
nominated by an attorney recommended by the Law Society of the
Northern Provinces
and the applicant’s attorneys of record were
to request the Law Society to make such recommendation within
fourteen days
after the decree of divorce was received from the
Registrar of the divorce court.
[4] On 22 May 2012 the applicant’s
attorneys requested the Law Society to nominate an attorney to
appoint three estate agents,
to evaluate the immovable property of
the parties. There was no response to this letter.
[5] On the 31 October 2012 the
respondent’s attorneys addressed a letter to the applicant’s
attorneys and recorded as
follows:
“7. Our client is willing to pay
your client out in terms of the settlement relating to the immovable
property situated at
1…… Diepkloof Zone ……
Soweto.
2. We enclose herewith the valuation by
the bank FNB and the estate agent GM Real Estate being R460 000-00
(four hundred and fourty
thousand).
3. The bond outstanding as at date of
divorce is approximately R75 000.00
4. The lights outstanding is R19 131-60
and the rates and water is R15 841-00.
In the circumstances our client offers
your client the sum of R165 013-70
- R440 000-00
- R 75 000-00 mortgage bond
- R 19131-60 electricity
- R 15 841-00 rates, water & refuse
R330 027-40 -2
R165 013.70
[6] On 28 November 2012, the
applicant’s attorneys responded to the letter of 31 October
2012 as follows:
“We refer to the above and your
letter dated 31 October 2012
Kindly be advised that our client does
not accept the valuation as calculated by your client. Our client
will proceed to obtain
a valuation of the property and we request
that your client co-operates in granting access to the valuator to
inspect the property
for such purpose.
Your client is not entitled to deduct
the electricity account from such value as he has been solely
responsible for such use and
non-payment.
We shall revert to you as soon as the
valuation has been done in order to calculate the average value with
that of GM Real Estate".
[7] On the 15 January 2013 the
applicant though her attorneys made proposal to the respondent as
follows:
7.1 That the respondent pays R250 000
in respect of the applicant’s share of the immovable property,
7.2 That the respondent be responsible
for any amount due on the property including the outstanding bond,
water and electricity,
7.3 That the respondent should advise
the applicant when it would be suitable for the valuator to inspect
the property, should the
respondent not accept the offer for
division.The respondent was further requested to provide about three
days on which the valuation
could be made.
[8] A response by the respondent to the
letter of the 15 January 2013 was that the house’s value was
R440 000 which valuation
was already rejected by the applicant. The
respondent however, failed to respond to provide dates on which the
house could be valued
by an estate agent. Instead, on the 7 February
2013 a letter was addressed to the applicant’s attorneys in
which it was recorded:
“We refer to our letter dated 24
January 2013.
We await a response to our letter or we
would be applying to appoint a receiver or liquidator should we not
receive a response on
or before 15 February 2013”.
[9] On the 25 February 2013 the
applicant’s attorneys addressed a letter to the respondent’s
attorneys and recorded:
“We refer to the above matter.
Our client obtained a valuation despite your failure to provide us
with dates and times suitable
for the valuator to enter the
residence.
Please find attached hereto the
valuation as obtained by our client for the said immovable property.
We refer you to the provisions of the
settlement agreement regarding the valuations and purchase of our
client’s half share
therein. We further refer you to the
provisions regarding debts payable by the respective parties of debts
in his or her name.
We await your client’s
confirmation of purchase of our client’s 50% share. Should your
client still dispute this, we
shall proceed to enforce the provisions
of the settlement agreement at your client’s cost. There is no
need for a liquidator
as a settlement agreement exists and
furthermore, we have dealt with several liquidators who take 10% of
the value involved. Hence
your proposed liquidator requesting 30% is
unacceptable.
We await to hear from you”.
[10] The value indicated as per the
valuation certificate referred to in the letter of 25 February 2013
was R650 000. On 18 March
2013 the respondent’s attorneys
addressed a letter to the applicant’s attorneys advising that
in the light of the valuation
obtained by the applicant, the
respondent could not buy out the applicant and instead, suggested
that the applicant should buy
out the respondent. This proposal was
not acceptable to the applicant. She therefore suggested that the
house be sold and an undertaking
was also sought from the respondent
that he will not frustrate the efforts to ensure that valuators or
estate agents are given
access to the house to have it valued. It was
further suggested to the respondent that if the property is not sold
within six months
from the 25 March 2013, a liquidator be appointed
to sell the house.
[11] Instead of responding positively
to the proposal, the respondent on the 12 April 2013 caused a letter
to be written to the
applicant’s attorney in which it was
simply recorded as follows:
“The above matter refers.
Kindly be advised that our client is
willing to offer your client R220 000.
We await your response. ”
[12] A response to the letter 12 April
2013 is contained in a letter from the applicant’s attorneys in
which is recorded:
“We refer to the above matter.
Our client has advised us that she is
willing to settle as follows:
1. Your client shall pay our client an
amount of R250 000.00 in respect of her share of the immovable
property.
2. Your client shall be solely
responsible for any amounts due on the property, including the
outstanding bond, water and electricity,
of which he has had the sole
use and failed to pay for such use, as well as any rates and taxes.
Should your client not accept the
above, kindly advise us if our client can proceed to appoint estate
agents to sell the said property.
Should your client hamper the
selling of the property, our client shall proceed to approach the
court for the appointment of a
liquidator in order to sell the
property without interference from your client so that the proceeds
may be divided”.
[13] On the 20 May 2013 the respondent
replied and stated:
“We refer to your letter dated 3
May 2013 received on 6 May 2013.
We have consulted our client herein.
Your client is responsible and liable for the 50% of the electricity
and water, rates and taxes
as up to the date of divorce. The child is
living with our client and using the lights and water. Your client is
also liable for
1A the value of the house, less your client’s
share of the liabilities as at date of divorce.
Kindly furnishes us with your
reciprocal valuations as per the settlement agreement’1.
[14] In dealing with the letter of the
20 May 2013, the applicant in her answering affidavit states:
"... On 20 May 2013, the
Respondent's attorneys addressed a further letter, which I attach
hereto as Annexure “O”,
in which they now attempted to
reduce the amount further by claiming I was responsible for half the
bond payments from the date
of issuing the summons, which argument is
bad in law, as I had vacated the property and the electricity and
water accounts which
the Respondent had failed to pay I can also
mention that I moved out of the communal home on 3 March 2008 due to
the Respondent’s
violence and he has since that date, he
enjoyed the exclusive use of the property. The utilities accounts
were in his name and
it was agreed in paragraph 3 of Annexure “B”
that each party was to pay the debts in his or her name. Therefore
his
argument carried no weight. He also had a tenant, his brother,
living with him, who he admitted, under oath, contributed to the
expenses”.
[15] The applicant sees the conduct of
the respondent as being indicative of a person who is not willing to
cooperate. Many attempts
to sell the house are said to have been
deliberately frustrated by the respondent. For example, two
interested buyers offered to
buy the house in excess of R600 000 but
that did not happen as the respondent is said to been uncooperative
in allowing access
to the house. The Respondent was warned that if
the parties did not resolve the dispute, the court would be
approached for the
appointment of a liquidator.
[16] In paragraph 12 of the founding
affidavit, the applicant states:
“On 12 June 2013, the
Respondent’s attorney of record responded, I attach hereto a
copy thereof as Annexure “Q”
In the last paragraph of the
said letter the Respondent’s attorney advises that a liquidator
would take 30% of the estate
as his fees. It is clear from this
response that there will be no resolution. She further estates that
the taxed costs would also
be paid within the next week”.
[17] I gave background in the preceding
paragraphs so that the respondent’s main defence can be seen in
context. In paragraphs
5.1 and 5.2 of the respondent’s written
heads is contended as follows:
“5.1 In casu, the Applicant have
failed to implement the terms of their settlement agreement and yet,
it is the applicant
who has come to this court to ask for a
settlement of the mode of which the property is to be divided (which
had already been determined
and agreed upon by the Respondent);
5.2 The Applicant had refused to
cooperate or abide by the provisions of the settlement agreement The
mode of division had been
agreed upon an attorney appointed by the
Law Society in terms of 2.1.2.1 of the settlement agreement has to be
appointed”
[18] I am satisfied that the parties
are unable to resolve the dispute under discussion. Furthermore, it
is not like in terms of
the agreement, the applicant is not entitled
to approach the court. In clause 2.1.2.6 of the agreement and in
particular the last
sentence, it is recorded:
“Should the Defendant in any
obstruct such sale, the plaintiff may approach a court having
jurisdiction in order to appoint
a divider to take control of and to
sell the property, in which case the Defendant shall be liable for
the costs of such application"
[19] In the circumstances of the
present case, there can be no defence to this quotation and “obstruct
such sale” should
be understood to refer to every step leading
to the actual sale and when such steps are delayed, frustrated and or
obstructed,
the applicant should be entitled to approach the court.
[20] Consequently, I make an order as
follows:
20.1 Rynhart Kruger Attorney of 658
Wainright Street, Moreleta Park, Pretoria is hereby appointed as
Liquidator and Receiver of
the immovable property situated at 1……,
Diepkloof, Zone ………., Johannesburg in the joint
estate
of the parties and to effect the division of the proceeds
thereof in accordance with the Powers and Duties of Liquidator
(Annexure
“X”);
20.2 The respondent to pay the costs of
this application.
M F LEGODI
JUDGE OF THE HIGH COURT
FOR THE APPLICANT: NICOLE MITCHELL
Attorneys for applicant 49 Newark
Villas 7 Findel Crescent Highvel, Centurion PRETORIA Tel: 071 1551315
FOR THE RESPONDENT: KRISHNEE PILLAY
ATTORNEYS
c/o STRIJDOM ATTORNEYS
Suite 230, 2nd Floor
Van Erkom Building
217 Pretorius Street
PRETORIA
Tel: 012 329 7503
Ref: KPillay/L5183/12/ps
HEARD ON: 25 MAY 2015
JUDGMENT HANDED DOWN: 19 JUNE 2015
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER:
In the matter between:-
GRACE THOBILE LEBUSHA Applicant
And
NKGELE EDWARD LEBUSHA Respondent
POWERS AND DUTIES OF LIQUIDATOR
1. The Liquidator shall take over the
parties immoveable property situated at 1……, Diepkloof,
Zone ……,
Johannesburg and shall enjoy all the powers as
administrator thereof. Without derogating from the generality of the
aforegoing,
the Liquidator shall also be entitled:-
1.1 to obtain the outstanding amount
due to FNB on the mortgage bond registered over the immoveable
property with account number
00………. directly
from First National Bank;
1.2 to instruct or appoint any estate
agents or valuators to obtain a valuation of the parties immoveable
property;
1.3 to instruct or appoint any estate
agents to sell the parties immoveable property;
1.4 to sell the immoveable property of
the parties immediately by private sale or by private or public
auction;
1.5 to obtain market related valuations
of all assets referred to in Annexure “L1” of the
Settlement Agreement, Annexure
“B”, excluding items 1, 3
and 9 and to, at his discretion, attach a market related replacement
value to each item which
the Respondent refused to hand over to the
Applicant and to allocate such values to the Applicant from the
proceeds of the sale
of the immoveable property from the Respondent
share of his 50% share of the nett proceeds;
1.6 to pay, from the gross proceeds of
the sale of the immoveable property, the following:
1.6.1 the balance of the mortgage bond
at FNB;
1.6.2 the taxed costs of this
application in accordance with the order of this Honourable Court,
whether it be from the Respondent’s
50% share of the nett
proceeds or from the gross proceeds;
1.6.3 any estate agent or auctioneers
commission;
1.6.4 any valuators utilized;
1.6.5 the liquidation fees, to a
maximum of 10% of the value of the immoveable property and valuation
allocated for the assets in
paragraph 1.5 above;
1.7 to submit, after completion of his
duties referred to above, a full report of his allocations to both
the Applicant and the
Respondent and to pay to the parties the
following:
1.7.1 50% of the nett proceeds to be
paid to the Applicant;
1.7.2 the amount allocated by him of
the assets listed in Annexure “L1” not received by the
Applicant in accordance
with the provisions of paragraph 1.5 above to
be paid to the Applicant from the Respondent’s 50% share of the
nett proceeds;
1.7.3 the balance of the Respondent’s
50% share to be paid to the Respondent.
1.8 to sign any documents on behalf of
the Applicant and Respondent as may be necessary to effect the sale
and transfer of the immoveable
property to the purchaser thereof;
1.9 to give the Respondent a first
right to purchase the immoveable property, which right must be
exercised within 14 (fourteen)
days
after the liquidator has advised the
Respondent of the valuation of the property and assets in Annexure
“L1”, in which
case the Respondent must pay to the
liquidator 50% of such valuation together with any additional amount
and/or costs as calculated
by the liquidator, which amount must be
paid to the liquidator within 60 (sixty) days after exercising his
right to purchase the
immoveable property, failure of which the
liquidator shall proceed immediately with the sale of the property by
private sale or
private or public auction.
1.10 to apply to this Court for any
further directions as he shall or may consider necessary and to
recover such costs from one
or both parties or from the proceeds of
the sale of the immoveable property;
1.11 to instruct and appoint attorneys
and/or counsel to institute legal proceedings, including an
application for the eviction
of the Respondent if the Respondent
refuses to co-operate with the sale of the immoveable property or
obstructs the liquidator
in the course of performing his duties to
sell the immoveable property;