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2026
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[2026] ZAGPJHC 281
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Jay Mothobi Incorporated v Midvaal Local Municipality (2024/072183) [2026] ZAGPJHC 281 (10 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 2024-072183
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
10
March 2026.
In
the matter between:
JAY
MOTHOBI INCORPORATED
Applicant
and
MIDVAAL
LOCAL MUNICIPALITY
Respondent
JUDGMENT
CRUTCHFIELD J
[1]
The applicant, Jay Mothobi Incorporated, claims payment of
R171 187.10 together with costs. The respondent, Midvaal
Local
Municipality, opposes the application.
[2] The applicant
is a commercial law firm incorporating a conveyancing department. The
applicant’s case is that one
of its employees in the
conveyancing department (“the conveyancing secretary”),
mistakenly overpaid the respondent.
[3]
The respondent is the local municipality tasked with issuing so
called “rates clearance figures” and certificates
necessary to obtain the transfer of an immovable property.
[4]
The applicant alleges that it incurred a
loss pursuant to a mistake by the conveyancing secretary who overpaid
the respondent in
error, repayment of which is sought by the
applicant in this application.
[5]
The applicant, acted in pursuit of its mandate from the seller of the
relevant immovable property, the liquidator of a
company referred to
as Mystic Blue Trading (“the seller”), for the transfer
of the latter’s property to a purchaser
referred to as Stoncor
Group (“Stoncor”).
[6]
The applicant, on 18 March 2024, requested
rates clearance figures in terms of s 118(1) of the Municipal Systems
Act, 32 of 2000
(“the Act”).
[7]
The respondent on 5 April 2024 or
thereabouts, provided the requested rates figures and distinguished
in its email between
the amount due for the preceding two years and
the historical amount owed to the municipality in respect of the
property.
[8]
The amount owing to the respondent in
respect of the rates clearance figures for the preceding two years,
counting from April 2024
backwards, was R632 279.30. The
respondent did not provide any evidence in support of its averment.
[9]
The conveyancing secretary however mistakenly paid the sum of
R832 279.30, resulting in an erroneous overpayment of
R200 000.00
to the respondent.
[10]
The applicant duly requested a refund of the overpayment of
R200 000.00, only to receive R28 812.90 from the
respondent, resulting in a deficit of R171 187.10 claimed in
this application from the respondent.
[11]
The applicant alleges that the sum of R171 187.10 is due, owing
and payable by the respondent to the applicant.
[12]
On 18 April 2024, the conveyancing secretary dispatched email
correspondence to one Tsoaeli of the respondent, informing
the
respondent of the overpayment and requesting a refund of the sum
overpaid.
[13]
The respondent, on 3 May 2024, replied and advised that the
respondent would only refund the amount of R37 457.00
to the
applicant.
[14]
The respondent contends that in order for a rates clearance
certificate to be issued, the seller of the property is liable
for
the full outstanding indebtedness, including debts owed on the
property for the preceding two years as well as those debts
older
than the two year period referred to in s118(1) of the Act.
[15]
The respondent alleges that the property rates in terms of s118(1) of
the Act in respect of the preceding two years amount
to R632 279.30.
Furthermore, the respondent alleges that the debts extending on the
property beyond the preceding two year
period, being the historical
debt on the property, are R264 869.98. The total debt on the
property is thus an amount of R897 144.28.
[16] The respondent
contends further that in order for a certificate of balance to be
issued and regard being had to clause
24 of the conditions of sale,
the full amount of R897 144.28, outstanding as at 5 April
2024, had to be paid in order
for the issue of a clearance
certificate and for the purchaser to take transfer of the property.
[17]
The conditions of sale are between the purchaser, the seller and the
auctioneer. The respondent is not a party to the conditions
of sale
and cannot rely thereupon. In addition, the seller’s obligation
in terms of clause 24.1 of the conditions of sale,
to pay all rates
and taxes and levies in terms of s118(1) of the Act and to supply a
clearance certificate to effect registration
of transfer, is an
obligation owed to the purchaser and can only be enforced by the
purchaser against the seller. The respondent’s
remedies do not
arise in terms of the conditions of sale.
[18]
Furthermore,
the respondent’s stance was disposed of effectively in
City
of Tshwane Metropolitan Municipality v Mathabathe
[1]
,
in which the SCA dismissed the municipality’s argument, holding
that whilst the municipality was obliged to collect monies
that
became payable to it, it was obliged to issue a clearance certificate
if payment in respect of the preceding two years prior
to date of the
application for the rates clearance figures, was paid.
[19]
The
municipality may not demand payment of all debts, including the
historical debts on the property, in order to issue a certificate.
[2]
[20]
The conveyancing secretary made an error. The respondent should not
be entitled to benefit from an error such as that
occurred in this
matter.
[21]
The respondent sought condonation for the late delivery of the
answering affidavit. The delay was not intentional. There
is no
reason not to grant condonation.
[22]
The applicant omitted to claim interest on the outstanding debt in
the notice of motion. The applicant’s claim
is liquidated and
the applicant made demand on the respondent by way of correspondence
served by the sheriff on 24 May 2024. The
demand served to place the
respondent in
mora
and interest runs accordingly from 24 May
2024.
[23]
The costs of the application will follow the order on the merits. The
respondent will pay the costs of the application.
Scale B is
justified in that both parties used counsel and the respondent should
not have sought to take advantage of the applicant’s
error.
[24]
In the circumstances, I grant the following order:
1. The respondent’s
late delivery of the answering affidavit is condoned.
2. The respondent
is ordered to repay R171 187.10 to the applicant.
3. The respondent
is ordered to pay interest a
tempore morae
to the applicant on
the amount of R171 187.10 to the applicant from 24 May 2024 to
date of final payment both dates inclusive.
4. The respondent
is ordered to pay costs of the application including the costs of
counsel on scale B.
CRUTCHFIELD
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
For
the Appellants:
Mr N Alli instructed by Jay Mothobi Inc Attorneys.
For
the Defendant:
Mr W F Wannenburg instructed by Blignaut
Neerahoo Attorneys.
Date
of the hearing:
5 August 2025.
Date
of the judgment:
10 March 2026.
[1]
City of
Tshwane Metropolitan Municipality v Mathabathe
2013 (4) SA 319
(SCA) (“Mathabathe”).
[2]
Mathabathe
id at para [9] and [12].