SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 13717/24
In the matter between:
O[...] A[...] M[...] Applicant
and
B[...] M[...] First Respondent
ALL OTHER OCCUPIERS OF 6 […] T[…]
CRESCENT, WELLAY PARK, DURBANVILLE Second Respondent
CITY OF CAPE TOWN Third Respondent
HORIZON HOMES (PTY) LTD Fourth Respondent
Coram: NUKU J
Heard on: 6 February 2025
Delivered on: 24 February 2025
JUDGMENT
NUKU, J
[1] The applicant and the first respondent were previously married to each other,
and they owned an immovable property situated at 6 […] T[…] Crescent, Wellway
Park, Durbanville ( the Property ). Their marriage was dissolved by a decree of
divorce granted by this court on 1 August 2022. For some reason the court, in
granting the divorce decree, did not deal with the proprietary consequences relating
to the property.
[2] The first respondent remained in occupation of the property post the divorce.
Attempts to find an amicable way of dealing with the property failed and the applicant
instituted an application for the division of the property which was granted on 27
November 2023. In the relevant part, the order granting the division of the property
reads:
‘1. The joint ownership of the immovable property described as ERF 1 […],
situated at 6 […] T[…] Crescent, Wellway Park, Durbanville, Western Cape
(“the property”) be terminated.
2. The property be so ld on the open market for a fair and reasonable
price of an amount of at least R2 900 000.00.
3. The Respondent be directed to allow potential purchasers and estate
agents access to the property at all reasonable times.
4. The parties are directed to si gn all documents and to do all things
necessary to give effect to the sale and transfer of the property.
5. In the event that either party fails to comply with paragraph 4 above
within 3 days of being called upon to do so, then the Sheriff of the above
Honourable Court shall sign any documentation to give effect to the sale and
transfer of the property, on the defaulting parties behalf.’
[3] The fourth respondent made an offer to purchase the property which was
accepted. The transfer of the property was scheduled for 31 May 2024 but there
were some delays including the fact that the first respondent had not signed the
power of attorney to pass transfer, which she only did on 6 June 2024. The property
was intended to serve as a home of the Erasmus family d espite the property having
been purchased in the name of the fourth respondent, a company.
[4] The Erasmus family had been residing in Durban, KwaZulu -Natal province
and it intended to move into the property. The intention was that Mr Erasmus would
be the first to relocate with the furniture on 7 June 2024 and thereafter the remainder
of the fam ily to move in on 15 June 2024.
[5] The applicant’s attorneys had been in contact with the first respondent’s
attorney regarding the anticipated date of the registration of the transfer of the
property. On 20 May 2024. The first respondent’s attorney sent the applicant’s
attorney a voice note confirming that the first respondent would cooperate so as not
to frustrate the transfer of the property. This voice note was confirmed, in writing, by
the applicant’s attorney in a letter dated 23 May 2024 that the f irst respondent
‘agreed to give her full and immediate co -operation not to frustrate the sale of the
property …, and vacant occupation of the said property on the 31st instant .’ In return,
the first respondent’s attorney also confirmed this in writing on the same day, that is
23 May 2024.
[6] The applicant’s attorney made unsuccessful attempts to contact the first
respondent’s attorney on 30 May 2024 and 4 June 2024 to make arrangements for
the signature of the transfer documents. On 6 June 2024, the fir st respondent signed
the transfer documents that the sheriff had brought to her.
[7] In what can only be described as a volte face , the first respondent’s attorney
called the applicant’s attorney, on 7 June 2024, suggesting that the first respondent
was s till residing on the property. The first respondent’s attorney also made various
demands unrelated to the transfer and giving vacant possession of the property to
the fourth respondent.
[8] As a result of the first respondent’s changed stance regarding gi ving vacant
occupation of the property to the fourth respondent as well as knowledge of the fact
that the Erasmus family had structured their affairs in anticipation of moving into the
property on 15 June 2024, the applicant, on 12 June 2024 launched the p resent
application which was set down for hearing in the fast lane on 14 June 2024.
[9] On 14 June 2024, the matter came before Wille J who granted a rule nisi
returnable on 25 July 2024 and which required the first respondent to show cause
why she should not be ordered to give vacant occupation of the property to the fourth
respondent.
[10] No formal notice of opposition was delivered on behalf of the first respondent,
but her attorney was in court on 25 July 2024 and sought a postponement of the
matter. Kantor AJ postponed the application for hearing in the third division on 28
August 2024, extended the rule nisi accordingly and directed the first respondent to
deliver her answering affidavit on or before 8 August 2024. He also ordered the first
respond ent to pay the costs occasioned by the postponement.
[11] The first respondent did not deliver her answering affidavit on 8 August 2024. It
is not apparent from the file when she delivered her answering affidavit, which is
dated 11 August 2024. She stat ed in her answering affidavit that she vacated the
property when its transfer was registered in the name of the fourth respondent on 11
July 2024. This notwithstanding, she persisted with her opposition of the application
and an order dismissing the applic ation with costs.
[12] The application came before Pangarker AJ on 28 August 2024 who
postponed it for hearing on the semi -urgent roll to 16 October 2024 and directed the
applicant to deliver his replying affidavit on or before 13 September 2024. In the
answering affidavit, the applicant stated that he could not understand the first
respondent’s continued opposition of the application in circumstances where she had
given vacant occupation of the property to the fourth respondent on 12 July 2024.
[13] Heads of argument were filed on behalf of the applicant in anticipation of the
application being heard on 16 October 2024, but none were filed on behalf of the first
respondent. No judge was allocated to hear the matter on 16 October 2024 and the
matter was postponed to 6 February 2025 and the first respondent was directed to
file her heads of argument by 31 January 2025.
[14] The matter came before me on 6 February 2025 when Mr Baba appeared on
behalf of the first respondent. As no heads of argument had bee n filed, I sought to
establish from him the reasons for the first respondent’s failure to deliver heads of
argument when she had been ordered to do so. All that Mr Baba could do was to
apologise saying that he had forgotten to prepare and file the first re spondent’s
heads of argument, an explanation I found perplexing. He, nevertheless, and in the
absence of the first respondent’s heads of argument, insisted on the matter
proceeding. Asked whether the first respondent was persisting with the defence on
the merits or whether the court was only required to deal with costs, he could not
give a clear answer.
[15] On my reading of the papers it was, however, clear that but for the allocation
of costs, the matter had become moot. I asked the parties’ legal repres entatives to
address me on the issue of costs.
[16] The nub of the submissions made on behalf of the applicant was that the
applicant was forced by the conduct of the first respondent to institute the application.
Reference was made to undertakings to giv e vacant occupation which were
honoured in the breach, the first respondent’s continued or feigned occupation of the
property beyond the date which she knew that the property had to be vacated, the
first respondent’s lack of cooperation in signing the tran sfer documents. These
matters had indeed been dealt with in the applicant’s founding affidavit.
[17] When the time came for Mr Baba to address the court, he sought to lead
evidence from the bar seeking to justify the first respondent’s lack of cooperatio n as
well as seeking to suggest that the applicant’s legal representatives launched the
application at a time when he was away and hence could not deal with same.
[18] This court has a discretion when it comes to the allocation of costs. In matters
where the substantive relief that had been sought has become moot for whatever
reason, the court in the exercise of its discretion is entitled to consider whether the
applicant would have been successful, whether the applicant had been justified in
instituting the proceedings as well as the conduct of the respective parties.1
[19] There can be little doubt that the applicant was justified in commencing these
proceedings. Through his efforts, which the first respondent appears to have been
intent to frustrate in any manner possible, the applicant obtained an order for the
sale o f the property. The first respondent was aware that the property had been sold
and that they were required to give vacant occupation of the property to the
purchasers. The first respondent’s legal representative had even given an
undertaking that the first respondent would co -operate to ensure that vacant
occupation is given to the fourth respondent on 31 May 2024.
[20] Despite all of the above, the first respondent had not only not signed the
transfer documents by 31 May 2024 but was also still claiming to be occupying the
property. The applicant being aware of the arrangements that the Erasmus family
had made in anticipation of taking occupation of the property during the first half of
June 2024, found himself obliged to approach this court on an urgent ba sis as he
would not risk losing a purchaser or even worse having to deal with a damages claim
from the fourth respondent.
[21] That the first respondent can state, under oath, that she was still in occupation
of the property until 11 July 2024, which is m ore than a month from the date that she
had undertaken to vacate the property is another indication that the applicant was
justified in commencing this application.
[22] As regards the merits of the application, it is clear that the first respondent had
no valid defence to the application and none was pleaded. This is not surprising if
one has regard to the fact that the first respondent’s legal representative had given
1 Erasmus v Grunow en ‘n Ander 1980 (2) SA 793 (O) at 798 D; Johnson v Minister of Home Affairs
and Another 1997 (2) SA 432 (C) at 434B , Thusi v Minister of Home Affairs 2011 (2) SA 561 (KZP)
para 64
an undertaking that the first respondent would vacate the property on 31 May 2024,
only to make an about turn on 7 June 2024. In my view, the applicant would have
succeeded and as such would have been entitled to costs.
[23] As to the conduct of the respective parties, the first respondent’s conduct
coupled with that of her legal represent ative has been reprehensible. This is an
application that could have been avoided. That it persisted with opposing until
argument, in my view, brings it within the extended meaning of vexatious litigation
contemplated in In Re Alluvial Creek Ltd 1929 CPD 5 32 at 535 that is deserving of
this court’s censure. In my view costs on an attorney and client scale are warranted.
Order
[24] In the result, the first respondent is ordered to pay costs on an attorney and
client scale.
_______________________ __
LG NUKU
JUDGE OF THE HIGH COURT
APPEARANCES:
For the Appellant : Adv. J P Steenkamp
Instructed by : Abrahams and Gross Inc, Cape Town
For the First Respondent : Mr A V Baba
Instructed by : A V Baba Attorneys, Cape Town