About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2012
>>
[2012] ZAECELLC 12
|
|
CMB Components Assemblers CC and Another v Hongo (EL872/2012, ECD 1972/2012) [2012] ZAECELLC 12 (21 August 2012)
3
NOT REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
Case no:
EL872/2012
ECD
1972/2012
Date heard: 12 August 2012
Date
delivered: 21 August 2012
In the
matter between
CMB COMPONENTS ASSEMBLERS CC
.........................................
First
Applicant
BRIAN LINDILE NOMPOZOLO
....................................................
Second
Applicant
Vs
NIKIWE NOMAPHELO HONGO
............................................................
Respondent
And
EZO MEYER ATTORNEYS
.......................................................................
Garnishee
JUDGMENT
SMITH
J
:
[1] The applicants applied on an urgent basis for an order setting
aside a writ of execution issued on 27 July 2012 in case no
EL428/2010. The effect of the writ was to attach the sum of R378, 093
which was about to be paid into the trust account of the
garnishee,
Enzo Meyer Attorneys. The money is a portion of the proceeds of the
sale of immovable property owned by the first applicant
(“CMB
Components”). CMB Components is a close corporation of which
the second applicant (“Nompozolo”) is
the sole member.
[2] When the matter was heard on 12 August 2012, I reserved judgment
and ordered Enzo Meyer Attorneys to retain the money in their
trust
account pending delivery of my judgment.
[3] Nompozolo and the respondent were divorced on 9 September 2011 in
terms of a decree incorporating a deed of settlement which
provided,
inter alia
, that the respondent was entitled to be paid one
half of the value of Nompozolo’s member’s interest and
loan account
in CMB Components.
[4] The deed furthermore provided for CMB Components to be valued in
the following manner:
(a) It would be valued as at the date of divorce;
(b) Nompozolo was to provide the respondent with the books of account
within one month of the divorce;
(c) Nompozolo’s auditors would provide a valuation of his
member’s interest, and in the event that respondent did not
agree with such valuation, she would be entitled to appoint her own
auditors to prepare a valuation.
[5] Nompozolo had failed to provide a valuation, and on 28 March 2012
the respondent obtained her own valuation from her auditors,
Moore
Stevens, Chartered Accountants. In terms thereof Nompozolo’s
member’s interest was valued at R756, 186. It was
on the basis
of that valuation that the respondent proceeded to issue the writ in
respect of her half share.
[
6]
Mr. Silandela, who
appeared for the applicants, submitted that the respondent was not
entitled to issue the writ because the valuation
had not been
finalised, and the respondent’s claim was therefore not
liquidated. He argued that the writ had therefore been
issued
prematurely, and falls to be set aside on this basis.
[7] Mr. Clark, who appeared for the respondent, on the other hand
submitted that it was an implied term of the settlement agreement
that if Nompozolo failed to provide a valuation, or to challenge the
respondent’s valuation, he would be deemed to have waived
his
rights in this regard, and the respondent’s valuation would
then become final.
[8] It is trite law that a writ can only be issued
in pursuance of a court judgment and in respect of a liquidated debt.
Where the
amount payable in terms of the judgment can only be
ascertained after further legal issues had been resolved, the
judgment debtor
is not entitled to issue a writ. (
De
Crespigny v De Crespigny
1959
(1) SA 149
(N) at 151.)
[9] It appears that even though Nompozolo had failed to provide a
valuation by his own auditors, he had all along disputed the
respondent’s valuation. As recently as 18 July 2012 he had sent
an e-mail to the respondent’s attorneys wherein he:
attempted
to explain the reasons for his failure to provide a valuation;
challenged the bases on which the respondent’s valuation
had
been prepared; and stated that he still intended to instruct his
auditors to provide the valuation.
[10] Even if Mr. Clark is correct in his submission that it was an
implied term of the deed of settlement that Nompozolo had to
provide
the valuation within a reasonable period of time, I am not persuaded
that his delay was of such a nature that he should
be deemed to have
waived his rights in this regard. The contents of the email of 18
July 2012 in my view militate against such
a conclusion. Though
unconvincing Nompozolo’s reasons for his failure to provide the
valuation might have been, in my view
the respondent was not entitled
to simply unilaterally assume that her valuation had become final,
and to issue the writ on that
basis.
[11] Having said that, I must state that I am not entirely convinced
that the application was bona
fide
. The applicants have been
deliberately coy about the details of the sale transaction, and it is
clear from the papers that Nompozolo
had unfairly delayed the
finalisation of the valuation to the respondent’s detriment.
[12] Unfortunately the deed of settlement is silent on how this
impasse is to be resolved,0 and no clear time frames had been
prescribed. It was for this reason that I have considered issuing an
order putting the parties on terms in this regard, and preserving
the
funds in the trust account of Enzo Meyer Attorneys until such time as
the valuation had been finalised. I am however of the
view that, in
the absence of a counter application to this effect, I would be
exceeding the reasonable boundaries of my judicial
authority if I
were to make such an order
mero motu
.
[13] For these reasons I am constrained to find that the writ had
been issued prematurely.
[14] In the result the following order shall issue:
The writ of execution issued in case no EL428/2010; ECD928/2010 is
hereby set aside; and
The respondent is ordered to pay the costs of this application.
_________________
J. SMITH
JUDGE OF THE HIGH COURT
Appearing on behalf of applicants: Advocate Silandela
Instructed by: Jama Mama Attorneys
Appearing on behalf of respondent: Advocate Clarke
Instructed by: Drake Flemmer and Orsomond