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[2013] ZAGPPHC 43
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Growthpoint Properties Ltd v Makhonya Technologies (Pty) Ltd and Others (67029/2011) [2013] ZAGPPHC 43 (12 February 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
No. 67029/2011
DATE:12/02/2013
In
the matter of:
and
GROWTHPOINT
PROPERTIES
LIMITED
..............................................................
Applicant
and
MAKHONYA
TECHNOLOGIES (PTY)
LTD
............................................................
First
Respondent
MICHAEL
TARUBING
DZIMBANETE
....................................................................
Second
Respondent
VENESSA
NANCY
ABRAHAMS
..........................................................................
Third Respondent
JUDGMENT
Van
der Byl AJ:-
[1]
In this matter, launched on 7 November 2012, the Applicant seeks an
order that a settlement agreement concluded between the
Applicant and
the three Respondents,
Annexure
D to the founding affidavit, be made an order of court.
[2]
As is apparent from the papers, it is not disputed -
(a)
that the Applicant and the First Respondent concluded two written
agreements of lease in terms of which the Applicant rented
three
retail premises to the First Respondent;
(b)
that the Second and Third Respondents bound themselves in two deeds
of suretyship as sureties and co-principal debtors, jointly
and
severally in solidum with the First Respondent to and in favour of
the Applicant for the due and proper fulfilment of all the
First
Respondent’s obligations in terms of and arising from the two
leases;
(c)
that during the period of the two leases the First Respondent
breached the two leases by failing to pay the monthly rentals,
utility charges and fell in arrears in a total sum of R203 608,45 by
virtue of which the Second and Third Respondents together
with the
First Respondent became liable to the Applicant for payment of that
amount;
(d)
that a dispute arose between the Applicant and the First Respondent
about the total arrear amount the First Respondent owed
the
Applicant;
(e)
that the dispute was eventually resolved and a written settlement
agreement (Annexure D) was concluded between the Applicant
and
Respondents.
[3]
The relevant material and express terms of the settlement of
agreement are, inter alia, the following, namely -
(a)
that the Respondents acknowledged to be truly and lawfully indebted
to the Applicant in the total sum of R203 608,45 in respect
of arrear
rental and other charges provided for in the two leases;
(b)
that the Respondents would pay that amount by way of monthly
instalments of R20 000, commencing on 7 July 2011 and thereafter
on
or before the first day of each and every month until the debt was
extinguished;
(c)
that the agreement did not constitute a novation of any claim and
constituted a confirmation of an existing debt;
(d)
that it was agreed by the Respondents that the agreement might be
made and order of court and that the Applicant might bring
an
application to make the agreement an order of court on an unopposed
basis.
(I
may point out that the papers contain no indication whether the
Respondents complied with the terms of the settlement agreement
by
making the payments they agreed to make as from 7 July 2011)
[4]
The Respondents, however, on this application having been served on
them, filed a notice in terms of Rule 6(5)(d)(iii) notifying
the
Applicant that they intend to raise a question of law.
[5]
In terms of the notice, in so far as it was persisted with in
argument at the hearing of this application, it is the contention
that this Court has no jurisdiction to hear an application of this
nature on the grounds thereof -
(a)
that no action or application was instituted prior to the signing of
the settlement agreement;
(b)
that no lis existed between the parties prior to the signing of the
settlement agreement;
(c)
that the Court cannot entertain an application to make the settlement
agreement an order of court where no proceedings are pending
between
the parties, particularly, because -
(i)
no provision is made in the Rules for such an order to be granted;
(ii)
the Court cannot merely rubberstamp the settlement agreement where
clause 11 thereof provides that it does not constitute a
novation,
but merely a confirmation of an existing debt.
[6]
In my view the contention that no provision is made in the Rules for
such an order to be made is in my view of no moment since
this
Court’s jurisdiction is not derived from the Rules.
[7]
This Court has, broadly speaking, inherent jurisdiction at common law
in all matters except where such jurisdiction is excluded
by statute
(see: section 19 of the Supreme Court Act, 1959) and, in the absence
of any jurisdictional limitations, subject to the
doctrine of
effectiveness (Cilliers, Loots and Nel, Herbstein & Van Winsen :
The Civil Practice of the High Courts of South
Africa, p. 63).
[8] Apart from questions relating to
this Court’s inherent jurisdiction, section 19 of the Supreme
Court Act, 1959, a high
court has jurisdiction "in its
discretion, and at the instance of any interested person, to enquire
into and determine any
existing, future or contingent right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon
the determination". Although there is on the
papers no dispute relating to the terms of the settlement agreement,
the Applicant
seeks an order determining a existing right the order
will be binding on the Respondents who do not dispute the existence
and terms
of the settlement agreement (see: Ex Parte Nell
1963 (1) SA
754
(A) at 759H).
[9]
Except for a decision in Mansell v Mansell
1953 (3) SA 716
(N) (to
which I will refer in a moment), I was not referred to (and I was
unable to find) any authority from which it appears that
this Court’s
jurisdiction is ousted to make an order of this nature in the
particular circumstances of this case.
[10]
In the Mansell case, supra, the court held that it has no
jurisdiction to make an agreement between the parties providing,
inter alia, for the payment of maintenance to the wife an order of
court because under Roman-Dutch Law an innocent wife has no
right to
claim maintenance after divorce,
[11]
I do not regard it necessary to go into detail with the legal
position relating to orders of maintenance, but the Mansell case,
supra, is in my view of no assistance to the Respondents as it gives
no guidance to the crucial issue in this matter, namely, whether
this
Court has jurisdiction to grant an order of this nature.
[12]
It is obvious from the papers that there was indeed a dispute between
the parties, albeit before any litigation was commenced
between the
parties relating to the amount payable to the Applicant in respect of
arrear rental which dispute was settled and embodied
in a settlement
agreement which the parties agreed may at the instance of the
Applicant be made an order of court on an unopposed
basis.
[13]
When the dispute existed between the parties, the Applicant was
entitled to have either launched an application or institute
action
against the Respondents to recover the arrear amount, but in order to
avoid litigation and costs the parties elected to
conclude a
settlement and to reduce it to writing.
[14]
If the Court has no jurisdiction to grant an order of this nature
simply because of the absence of pending proceedings, it
would mean
that legal proceedings would first have to be instituted, should it
then be resolved and a settlement agreement is
concluded,
only then the Court will be empowered to make such an order. This
will lead to an unnecessary duplication of legal proceedings.
The
term “inherent jurisdiction" refers to this Court’s
function of securing a just and respected process of arriving
at a
decision and it is not a factor which determines what order the Court
might make after due process has been achieved (Chunguete
v Minister
of Home Affairs 1990(2) SA 836 (W) at 841 A; Ngoweni v Bezuidenhout
1927 CPD 130
; De Wet v Western Bank Ltd 1977(2) SA 1033 (W) and
Moluele v Deschatelets 1950(2) SA 670 (T)).
[15]
In my view the underlying causa for the order sought is the
settlement agreement.
[16]
This is not a matter where the Court is asked, as was contended on
behalf of the Respondents, to “rubberstamp”
the
settlement agreement. It is no different than any other settlement
agreement which is concluded between parties
[17]
In the premises the following order is made:-
1.
THAT the settlement agreement concluded between the Applicant and the
First, Second, and Third Respondents (Annexure D to the
founding
affidavit) be made an order of Court.
2.
THAT the Respondents be ordered to pay the Applicant’s costs.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANT: ADV W WANNENBERG
On
the instructions of: BRITS VAN RHEEDE MULLER
Ref:
Mr H Muller/ek/GR01/0128
Tel
: 011 483 3211
c/o
HACK STUPEL & ROSS 2ND Floor, Standard Bank Chambers
Church
Square PRETORIA Ref: J Pretorius/tn/RF6867
Tel:
012 325 4185
ON
BEHALF OF THE DEFENDANT: ADV M SNYMAN
On
the instructions of: ALBERT HIBBERT ATTORNEYS
Office
105 Schindler House 459 Leyds Street Sunnyside
PRETORIA
Ref:
Mr Hibbert/SO/M171 012 343 0401
DATE
OF HEARING: 28 January 2013
JUDGMENT
DELIVERED ON:12 February 2013