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[2013] ZAGPPHC 415
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Fisher and Others v Ekurhuleni Metropolitan Municipality and Another (25462/10) [2013] ZAGPPHC 415 (8 November 2013)
IN THE NORTH GAUTENG HIGH COURT, PRETORIA [
REPUBLIC OF SOUTH AFRICA]
CASE
NUMBER: 25462/10
DATE:
08 NOVEMBER 2013
In the matter between:
LORENZO
ENRICO FISHER
1
st
APPLICANT
COLIN
MARTIN ROWE
2
nd
APPLICANT
DANIEL
THEODORUS BRITS
3
rd
APPLICANT
MAZIMANI
SYTEVEN CHAUKE
4
th
APPLICANT
SANIEL
BENJAMIN
ROOS
5
th
APPLICANT
JOSPEHUS
JOHANNES PRETORIUS
6
th
APPLICANT
DEIDRE
BARNARD
7
th
APPLICANT
CAREL
JACOBUS
VERAMAAK
8
th
APPLICANT
HENDRIK
LEO DU PREEZ
9
th
APPLICANT
ARNOLDI
VAUGHAN
10
th
APPLICANT
M
ROOS
11
th
APPLICANT
And
EKURHULENI
METROPOLITAN MUNICIPALITY
1ST DEFENDANT
THE
REGISTRAR OF DEEEDS
2
nd
DEFENDANT
JUDGMENT
MAVUNDLA J
[1]
In casu,
the applicants withdrew their
application against the first respondents on the day of the hearing
thereof on the 3 June 2013, without
tendering costs, as it would
generally be expected. The parties having failed to reach an
agreement with regard to costs, the only
issue to be decided was,
therefore, the question of liability of the costs.
[2]
I am indebted to the counsel
for the respective parties for the comprehensive heads of argument
they have furnished me with. They
have also fully addressed me in
respect of why this court should make an order in favour of their
respective clients and against
the other party. I have since taken
the view that the dictates of fairness demand, in
casu
,
that in the exercise of my
discretion
[i]
,
I should order that each party should pay its own costs, for the
reasons mentioned herein below.
[3]
It is common cause that the applicants during June to July 2010,
entered into a written agreement of sale in respect of certain
immovable properties which relate to stands with existing dwellings
thereon, which they purchased from the first respondent’s
predecessor in title (The Greater East Rand Metro).
[4]
At the time of the conclusion of the said agreements of purchase and
sale, the applicants were in the employ of the first respondent.
The
agreements were made subject to a suspensive
[ii]
condition that, the relevant area within which the relevant
properties were situated would be proclaimed a township. The
suspensive
condition with regard to proclamation were fulfilled in
respect of all the agreements entered into by the applicants during
2008,
and the applicants were advised in 2008 that the first
respondent was in a position to transfer the above mentioned
properties
into their nam
es as per the agreement of sale.
[5]
The first respondent subsequently instructed its transferring
attorneys not to effect transfer of the purchased properties.
[6]
The applicants then brought an application against the respondents in
May 2010, for an order directing the first respondent
to transfer to
the respective applicants the relevant purchased immovable properties
sold to them by the first respondent. They
also sought rectification
of certain terms of the written agreements.
[7]
The applicants in their papers averred, inter alia, that the
agreements are valid and binding and that therefore, they are
entitled to specific performance and that the first respondent should
be ordered to have the immovable properties transferred to
them.
[8]
The first respondent filed its opposing affidavit in August 2010. The
thrust of the first respondent’s opposition to the
application,
was that the Council failed to: (i) affix a notice of the Council
resolution of 25 April 2000 to the public, on the
notice board of the
council, (ii) publish such notice in a newspaper; (iii) allow any
person, who may wish to do so, to object
to the exercise of the power
to dispose of its property; as required in terms of s79 (18) (b) of
the Local Government Ordinance
No 15 of '986 (“the Township
Ordinance”)] consequently the agreements were not valid and
enforceable against the first
respondent ab initio.
[9]
The first respondent further contended that the resolution of the 25
April 2000 which resolved to offer the sale of the properties
to the
emergency Services personnel, in circumstances where the Ordinance
does not provide for preferential treatment of employees
over the
general public in acquisition of the first respondent’s movable
property was discriminatory. The contracts concluded
with the fifth
and sev
enth to tenth applicants are not
valid,
as the option to purchase such properties were exercised after 31
December 2000 without them having been offered to the open
market.
[10]
The issue of validity of the agreement remained a mute point between
the parties. However, in the matter of Ferndale Crossroads
Share
Block (Pty) Ltd and Others v Johannesburg Metropolitan Municipality
and Otters,
[iii]
dealing with the validity of a lease agreement over immovable
property, which was concluded without compliance with the provisions
of s 79(18)(b), the Supreme Court of Appeal held that the lease
agreement was invalid ab initio. Similarly, where the sale of the
immovable property, as in casu, was made without compliance with the
provisions of s 79(18)(b), the purchase and sale agreement
was
invalid ab initio. That as much has since been, belatedly conceded,
by implication, through the very withdrawal of the action
by the
applicants. Consequently, I need not therefore decide the issue of
invalidity in casu. It suffices to state that the point
of invalidity
of the agreement was well taken by the first re
spondent and it
is held as such.
[11]
In my view, the applicants dragged the respondents to court. When
they brought the application, the applicants employed the
services of
the former legal employees of the first respondent, who, in my view,
ought to have known better that there had been
no compliance with the
provisions of s 79(18)(b) of the Ordinance and that the agreements
were therefore invalid. I am inclined
to suspect that the whole
process of the relevant sales was a deliberate exercise to fleece the
first respondent of its assets
to the advantage of the applicants and
discrimination against the general employees of the first respondent.
The applicants chose
not to withdraw their action up to the door
steps of the court on the hearing of the matter on the 3 June
2013.
[iv]
This as much is good reason to mulct the applicants with costs of the
application. On the other hand, the first respondent had
invited the
applicants to purchase the relevant immovable properties, without
having ensured that it had complied with its statutory
obligations
[v]
.
This is, however, regrettable
[vi]
but does not warrant, in my view that the
first
respondent should be mulcted with costs, as was contended on behalf
of the applicants.
[12]
It is common cause that in terms of the written agreement of
purchase and sale, all the applicants were responsible, at their
own
costs, for the maintenance of their respective properties. It is
common cause that there was no purchase price nor occupational
rental
paid by the applicants to the first respondent. The purchase price of
the respective properties varied from R185, 000. 00,
to R190, 000.
00. However, some of the respondents in anticipation of the property
being transferred into their names, effected
certain material
improvements on the properties which they believed to have purchased,
which improvements in some cases were in
excess of two hundred
thousand rand. This is the major consideration influencing me not to
visit the applicants with the costs
of this application. They have
already suffered financial prejudice, which could have been averted
much earlier had they been properly
advised of the invalidity of the
purported sales. I therefore take the view that the dictates of
equity, fairness and justice demand
that I should not mulct the
applicants with costs, although they are technically, by withdrawing
the application, in
the same position as
the loosing parties. In my view, as already indicated earlier herein
above, in the circumstances of this case,
it would be fair and just
to order that the respective parties should bear their own costs.
[13]
In the result it is hereby ordered that each party to pay their own
costs.
N.M. MAVUNDLA
JUDGE OF THE HIGH COURT
DATE
OF HEARING
:
06 / 06/2013
DATE
OF JUDGMENT
:
08/ 11 /2013
APPLICANTS’ ATT
:
LEN
DEKKER & ASSOCIATES
APPLICANTS’S
ADV
: ADV J. S. STONE
RESPONDENTS’S ATT
: NOZUKO
NXUSANI INC
RESPONDENT’S ADV
: ADV J.
R. PETER SC
w
ith
ADV C. GEOGIADES
[i]
Vide Affordable Medecine Trust v Minister of Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC) AT 296 H [138] -297H.
[ii]
Vide
Design & Planning
Service v Kruger
1974 (1) SA 689
(T) at 695
[iii]
201
1 (1) SA 24
(SCA) paras [21] -[22],
[iv]
Vide Biowatch Trust v Registrar, Genetic Resources
2009 (6) SA 232
-245 (CC)
[v]
Viking Pony Africa Pumps (Ply) Ltd t/a Tricon Africa Hydro-Tech
Systems (Pty) Ltd & Another
2011(11) SA 327 (CC).
[vi]
Eastern Cape Provincial Government and Others
v
Contractprops 25 (Pty) Ltd
2001 (4) SA 142
(SCA.