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[2013] ZAGPPHC 89
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Sheriff of the High Court Johannesburg East v Kathrada (7151/08) [2013] ZAGPPHC 89 (2 April 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 7151/08
DATE:02/04/2013
In
the matter between:
THE
SHERIFF OF THE HIGH
COURT
..........................................................................
Applicant
JOHANNESBURG
EAST
and
MOHAMED
ISMAIL KATHRADA
In
respect of:
FIRST
RAND BANK
LIMITED
.........................................................................................
Plaintiff
and
MAKADIKWA
VICTOR
MAKATE
...................................................................................
First
Defendant
MANOKO
ELIZABETH
MAKATE
...................................................................................
Second
Defendant
JUDGMENT
R
D CLAASSEN J:
1.
Before
starting with my judgment I need to apologise to the parties for the
long delay in delivering this judgment. A full explanation
will be
given at the end of this judgment.
2.
The
Applicant sold the property in execution to Respondent at the
instance of an execution creditor i.e. First National Bank, for
an
amount of R61,000.00. The Applicant now applies to have the sale
cancelled due to certain alleged breaches of contract by the
Respondent. The application is brought in terms of High Court Rule
46(11).
3.
The
Application was launched because Respondent refused to pay the
conveyancing attorney’s fees of R11,000.00 odd which included
an amount of R700.00 incurred by his agent to obtain clearance
certificates and figures from the Johannesburg City Council (“JCC”).
Respondent denied that this fee was payable by him, because his own
attorney obtained same. It also included an amount of R4,221.31
being
rates payable to the JCC.
4.
Applicant’s
affidavit is in essence only a “report back’ to the
Court, in terms of Rule 46(11). In terms thereof,
a judge in chambers
may summarily cancel such a sale on the report of the Sheriff, which
is what the Applicant is seeks to do.
5.
The
sale took place on the 9th December 2010. The Respondent paid a 30%
deposit of R18,300.00, as well as the Applicant’s
commission.
On 12 January 2011 he paid the balance of the purchase price to the
Applicant in trust. On 23 June 2011 the conveyancing
attorney
(“Applicant’s attorney”), sent a demand to the
Respondent by registered post to pay all the charges
of the attorney
and sign and return the transfer documents within 7 days, failing
which, Applicant intended to cancel the contract.
Respondent’s
answer was a denial of any breach, and stating that he would oppose
any cancellation. His attorney was appointed
as his “domicile”
for purposes of any application in terms of Rule 46(11).
6.
Respondent’s
answering affidavit was filed late and he applied for condonation
therefore, which was granted. In the affidavit
he states that the
rates payable to the JCC was obtained and paid by his own agent. He
also stated that he had signed the transfer
documents after it was
first returned to him, being unsigned/attested to, unsigned, and then
“prompt/y” sent it back.
Attached to his answering
affidavit he attached two receipts allegedly obtained from the JCC as
proof of his payment of his rates.
He does not deny the amount
payable to the JCC. However the receipts were 2 for R100.00 each.
Whatever they were obtained for,
it did not prove payment of the
rates. Furthermore, the allegation that he promptly signed and
returned the transfer documents
was a blatant lie. It transpired
later that they were in fact signed a few months later. However,
whatever the cause and results
of these events were, there is no way
that it can be relevant at the time of the hearing because the
Applicant waived the claim
for R700.00 and the rates were eventually
paid.
7.
In
the answering affidavit Respondent raised a new issue i.e. the
clearance certificate from the body corporate in which the property
was situated. Respondent states that at the time that the application
was launched the Applicant’s attorney were not ready
to lodge
for transfer, because he had not obtained the necessary clearance
certificate from the body corporate. Therefore the application
had to
be dismissed out of hand.
8.
During
the process of exchanging affidavits, this issue was raised between
the parties. Eventually Respondent undertook to obtain
same. However,
there again Respondent did not act with any kind of diligence or
haste. In fact, it was eventually the Applicant’s
attorney that
had to obtain a clearance certificate from the body corporate. This
emerged from the replying affidavit. The certificate
showed that an
amount of R16,000.00 was due to the body corporate.
9.
In
view of the new issue of the body corporate’s certificate,
Respondent applied and was granted permission to file a further
affidavit to explain his situation. His stance was that the
certificate was not valid because it did not have the official stamp
or letterhead from the body corporate. He also raised various other
issues in relation to the so-called certificate from the body
corporate. He, in fact, attaches deposit slips to prove that payments
were made which in total, according to him, adds up to more
than
could possibly be owed to the body corporate. He also alleges that
the body corporate was not properly constituted, therefore
could not
issue same and he therefore refused to pay any of it.
10.
By
the time the hearing took place this last issue was the sole issue to
be determined. On this basis Respondent argued that it
was not an
issue raised in the founding affidavit hence the application had to
be dismissed.
11.
First
of all, it is clear that the issue of the body corporate’s
certificate was only raised by Respondent in his answering
affidavit.
This affidavit was filed, as indicated, way out of time. A lot of
water had gone under the bridge by that time. Respondent
says, in the
answering affidavit (paragraph 3.9) that all the delay was caused by
the Applicant’s attorney, by not obtaining
the said
certificate. He says he pointed it out to the attorneys time and
again without any result. Respondent, however, again
fails to put
forward any kind of evidence to show how, where and when this was
done. He further states that the Applicants attorney
later threatened
him to cancel the sale if he did not sign the transfer documents. He
then says he signed “under coercion
and fear” of a
possible cancellation.
12.
Respondent
goes on to state that after receiving the letter of demand (paragraph
9.3 of the answering affidavit, dated 23 June 2011,
page 19) his
attorneys had in fact made application for a rates clearance
certificate, and once obtained, same was paid. He then
refers to
Annexure “H” at page 58 of the papers, being his
attorney’s answer to the letter of demand. The letter
unfortunately states that their client (Respondent) had already paid
the clearance amount. Again no evidence of this was forthcoming.
This
letter is dated 15 July 2011. He then denies being in breach, the
breach being on the side of the Applicant’s attorneys,
for not
obtaining the body corporate’s clearance certificate. As
stated, however, he does not state how, where and when he
told the
Applicant’s attorneys to get the certificate.
13.
Respondent
then closes off with allegations of mala tides on behalf of the
Applicant and the Applicant’s attorney, relating
to three
previous sales in execution of the same property, that were
cancelled. What this has to do with the issue at present,
escapes me
and I will not refer to any of it any further.
14.
Then
comes the replying affidavit, also filed way out of time, due to the
negotiations between the parties, which I might add were
instituted
and driven by the Applicant’s attorney. On 28 January 2012 the
Applicant’s attorney sent a letter to Respondent’s
attorney, without prejudice, offering a certain basis for settling
the matter and continuing with the transfer (page 81, Annexure
“A”).
The attorney’s fees for obtaining the JCC clearance
certificate, and the costs for the application for
the certificate,
and the costs of the certificate, amounted to R1,038.55. It states
further that the Respondent indicated that
he had agreed that he
himself would obtain the clearance certificate from the body
corporate. On receipt of same, they would be
ready to lodge for
transfer.
15.
Three
further letters were sent by the Applicant’s attorney
requesting the clearance certificate from the Respondents. The
second
letter stated that if it was not received within 7 days, the
application to cancel the sale would proceed (the letters are
Annexures “A” and “B” at page 81 to 83 and
the letters are dated 24 January 2012, 7 February 2012, 24 February
2012). On 12 March 2012 the Applicant’s attorney sent a letter
to the Respondent’s attorney stating that they had not
received
the clearance certificate. On 16 March 2012 Respondent’s
attorneys replies that he is informed that his client is
making every
endeavour to obtain same. On the same date, Applicant’s
attorneys sends a letter to Respondent stating that
they themselves
obtained a clearance certificate, amounting to R16,000.00. He
requested payment within 7days. Because the previous
clearance
certificate from the JCC would expire by the end of March 2012, a new
certificate would again have to be obtained. The
attorney stated that
he is applying for extended clearance figures from the JCC.
16.
On
26 March 2012 the Applicant’s attorney again sent a letter to
the Respondent’s attorney after certain discussions
between
them had taken place. The details of the person who produced the
certificate, was given. The letter states that unless
payment is
made, or proof to the contrary gthat same were paid, or no amount is
outstanding, is received within 3 days, they will
continue with the
cancellation process. On 2 March 2012 the Respondent’s
attorneys writes that R13,000.00 of the R16,000.00
is disputed. This
of course contradicts that Respondent had paid more than the R16 000
allegedly outstanding. He also states that
the body corporate is not
properly constituted, and requires the minutes of the body corporate
showing the appointment of their
trustees.
17.
Respondent
sets out levies that were in fact paid to the body corporate, and
attaches the relevant pay slips. He, in fact, says
there was an
overpayment. He is therefore unwilling to pay any amount whatsoever
in respect of the body corporate levies. Finally
his stance can be
summed up as follows:
17.1
Applicant’s attorney was not ready to lodge for transfer at the
time the application was launched, because they did not
have the
clearance certificate from the body corporate or the amounts owing.
This was only obtained two months later;
17.2
He is not willing to pay for the attorney for obtaining the clearance
certificates, and only tenders the amount of R51.95 in
respect of the
second clearance certificate;
17.3
He disputes the body corporate’s figures of R16,000.00 and says
it was only obtained by fraudulent means. He, however,
does not state
by whom or how the fraud was perpetrated;
17.4
The application should be dismissed with costs, alternatively
referred
to oral evidence.
18.
In
argument, Applicant’s stance was firstly that this application
requires a discretionary decision by the Court, exercised
judicially.
The following points are made to show that the Court should exercise
its discretion against the Respondent:
18.1
If Respondent was serious and bona fide about wanting to get
transfer, he could and should have paid the body corporate levy
under
protest and later fight the issue with the body corporate in a
separate case. He refused to do that;
18.2
He undertook to obtain the body corporate’s certificate’s
figure but did nothing, and now blames the Applicant’s
attorney;
18.3
He has not acted bona fide or truthfully, e.g.
18.3.1
He lied about when he eventually signed and returned the
transfer
documents. They were resent to him on 14 July 2011, but only returned
on 20 August 2011. This is not clarified in the supplementary
affidavit;
18.3.2
His allegation in paragraph 3.9 (page 39) that the Applicant’s
attorneys “adamantly refused’ to obtain
the necessary
certificate. The opposite is true when regard is had to Annexures “M”
and “N”, pages 133
to 134, where they were specifically
requested from the body corporate and obviously obtained by him.
18.3.3
Respondent on several occasions attached wrong and confusing
documents, especially to his answering affidavit and more
specifically
Annexure “G”, which is a registered slip of
a document sent by Applicant’s attorneys to Respondent and not
wee
versa as alleged by him;
18.3.4
Raising points of mala fides concerning previous execution sales of
the property, which has no bearing or relevance whatsoever
on the
present issue except to create negative impressions;
18.3.5
His allegations that he signed the documents under “coercion
and feaf\ It must be obvious that if he really wanted
transfer of the
property there was no question of any coercion or fear for signing
the transfer documents.
19.
Furthermore,
Respondent states that he had paid the clearance amount to the JCC.
Therefore Applicant had no valid cause of action
at the time of the
issue of the summons. The fact is, however, that the Respondent paid
the amount due only after Applicant had
opted to cancel the contract
and proceed with the application.
20.
Furthermore,
there is no relevant dispute of fact that needs to be referred to
oral evidence. It is only used to delay the matter
further.
21.
Finally,
if Respondent was serious in obtaining transfer, he could easily have
put the Applicant and/or his attorneys on terms to
finalise the
transfer and/or pay damages. He has not even suggested this at any
stage. It is clear that he was all along willing
to simply ride the
tide, as it were. That is not the attitude of a man who is serious
about obtaining transfer of the property.
22.
For
the reasons set out above I am not in a position to exercise my
discretion in the Respondent’s favour. Furthermore, Applicant
had and still has a valid ground for cancellation and has elected to
pursue same. The Applicant must therefore be granted in favour
of the
Applicant.
23.
The
issue of costs remain. There is no claim for costs in the Notice of
Motion. Applicant, however, now requests such an order.
This is
requested under alternative relief, as well as the Court’s
inherent discretion to rule on the issue of costs.
24.
As
has been shown above, Respondent has wilfully delayed this matter
inordinately. He placed irrelevant issues before Court, and
made
unsubstantiated claims of fraud on the part of the Applicant and his
attorneys. Furthermore, he lied in several aspects and
refused to
expedite the matter by paying, under protest, to the body corporate
or alternatively at least try and resolve the issue
of outstanding
levies with either the body corporate or the Applicant’s
attorneys. Then he also expected Applicant’s
attorneys to do
his work (in terms of an agreement) for him, by obtaining the body
corporate’s clearance certificate. For
those reasons I am not
inclined to deny the Applicant his costs.
25.
The
following order is therefore made:
1.
An order in terms of prayer 1, 3 and 4 of the notice of motion.
(Applicant did not ask for prayer 2);
2.
Respondent to pay the costs of the application.
R
D CLAASSEN
JUDGE
OF THE HIGH COURT(RET.)
26.
EXPLANATION
:
The
delay in delivering this judgment was unfortunately caused by the
following circumstances. This application was heard on the
penultimate day of my term as a Judge, just before I retired. It was
a rather hectic week with many opposed motions, several of
which had
to be reserved for judgment. This was one of them. In clearing out my
office this file was most likely in my Registrar’s
office and I
overlooked in taking it home for judgment. Several months afterwards
I was asked about this case but could not recall
it at all. Only a
couple of weeks ago the file was brought to me and after consulting
my bench book, I realised that this judgment
was in fact reserved.
That is why the judgment is only delivered now. I greatly and
sincerely apologise to the parties for the
inconvenience caused by
this serious delay. It was all along my practice to grant judgment in
any case as soon as possible, and
this is by far the longest delay of
any of my
judgments.
Again, I apologise sincerely to all the parties and everybody
concerned.
R
D CLAASSEN
JUDGE
OF THE HIGH COURT(RET.)
REPRESENTATION:
APPLICANT:
Counsel: AdvW Gibbs
Attorneys:
Coetzer & Partners Pretoria
Mrs
A Coetzer/TF 0222
RESPONDENT:
Counsel: AdvYBhamjee
Attorneys:
Brian C Clayton & Co
c/o
Mohammed Seed at Attorneys
Pretoria
MS/K11/KP