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
MPUMALANGA DIVISION, MBOMBELA
CASE: 1264/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE 06 March 2026
SIGNATURE
In the matter between:
CEBISILE R. MAMBWE 1ST APPLICANT
(Identity Number: 7[...])
ASTON MAMBWE 2ND APPLICANT
(Identity Number: Z[...] 3[...])
And
ANNEMARIE SWANEPOEL ATTORNEYS INC. 1ST RESPONDENT
WALTER AND STANDER ATTORNEYS 2ND RESPONDENT
SUMMER BREEZE HOMEOWNERS ASSOCIATION 3RD RESPONDENT
(Registration Number: 2005/022890)
2
PETER JOHN GIBSON 4TH RESPONDENT
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date and time for hand -down is deemed to be 06 March
2026 at 10h00.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
MANGENA AJ:
[1] Applicants were the registered owners of an immovable property, namely, Portion
514(A portion of Portion 502) of the Farm white River 64 JU Province of Mpumalanga. By
virtue of their ownership of the property, they became members of Summer Breeze
Homeowners Association (“HOA”).
[2] They concluded a deed of sale for the transfer of the property and appointed
Annemarie Swanepoel Attorneys Inc (transferring attorney) to attend to the transfer and
registration of the property into the names of the purchasers.
[3] In order to pass transfer, the transferring attorney had to obtain both a rates clearance
certificate as well as the homeowners association certificate confirming that there are no
charges or levies due and owing on the property.
[4] I interpose to mention that at the time of the conclusion of the deed of sale, applicants
were involved in a dispute with the Homeowners Association regarding the outstanding
amount for levies. The HOA had obtained judgment in the magistrate court and there was
a pending review in the High Court to have the proceedings set aside. In this regard, an
email was sent to the transferring attorney wherein the applicants stated through their
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attorney that "the statement presented by Summer Breeze estate is in its current
computation disputed. You cannot therefore proceed to pay as per the statement
presented to you when there is a pending review" . Several correspondences were
exchanged between the parties in an attempt to facilitate the resolution of the issue
around the clearance certificate by the HOA. On 25 October 2024, first respondent
enquired from the applicants if the dispute with Summer Breeze has been resolved and
reminded them of their contractual obligations in terms of clause 4.3 and 4.5 of the sale
agreement. On 06 November 2024 , another letter was sent to the applicants’ attorney
wherein it was indicated that if applicants are unwilling or unable to settle the amounts due
in respect of the HOA and municipal figures, guarantees will be issued and later deducted
from the proceeds of sale.
[5] The transferring attorney duly requested the clearance figures from the HOA and upon
receipt thereof requested the bond attorneys who were attending to the simultaneous
registration of the bond to issue guarantees in favour of the homeowners’ association. I
may just mention for completeness that first respondent was also the bond registration
attorney. Nothing really turns on this. Upon receipt of the guarantees that payment will be
made, the association issued a clearance certificate confirming that there are no levies
owing or that an arrangement has been made for their payment. The guarantees in
respect of the levies for HOA were to pay directly into the account of the second
respondent.
[6] Upon registration of transfer of property on 19 December 2024, the guarantees paid
directly into the account of the attorneys for Summer Breeze Homeowners Association
(Walter and Stander Attorneys who are cited as the second respondent) for the credit of
the account of the applicants.
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[7] The first respondent in her capacity as the transferring attorney reported to the
applicants and furnished them with a statement of account. In the email accompanying the
statement, the transferring attorney requested applicants to confirm if they agree with the
statement and should they not agree, to kindly contact or reply to the email with queries. It
was also recorded that payment will not be effected without having received confirmation
from the applicants that they agree with the statement.
[8] Applicants replied to the email under cover of the letter from the attorney wherein they
indicated their approval on all other items except that of Summer Breeze Homeowners
Association in the amount of R 1 445 390.48 as they are disputing the debt. They say in
the affidavit that " In essence, we advised the conveyancer to keep the money with her
until the hearing of the review application on the 21 of January 2025". The response by
the attorney was based on an erroneous understanding of how guarantees work. The
guarantees in this instance paid directly into the second respondent and there were no
funds held by the first respondent in respect of the levies due and payable by the
applicants to Summer Breeze.
[9] The transferring attorney informed them that the bank had paid directly to Walters and
Stander Attorneys, who were the attorneys for Summer Breeze Homeowners
Association.
[10] The applicants are aggrieved by this turn of events. They argue that this was done
contrary to their instructions and have approached this court for declaratory orders to the
effect that the conducts of both the first and second respondents are invalid and should be
set aside. They also seek an order that they are the lawful owners of the amount of R 1
445 390.48 as well as a consequential order compelling the third and fourth respondents
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to transfer the amount plus interest accrued from the date of transfer into their attorneys
trust account within 24 hours from the date of the court order.
[11] The application is opposed by all the respondents. The first respondent states in
opposition of the relief sought against her that she was mandated to effect transfer and is
not involved in the dispute between applicants and the Homeowners Association. She
says that she was given a power of attorney which authorised her to do whatever was
necessary to pass transfer into the names of the purchaser as the applicant s were in law
obliged to pass transfer upon the purchaser fulfilling his/her obligations in terms of the
deed of sale. Applicants have further authorised her to pay out of the proceeds of sale "all
rates, levies and other charges owing to any local authority or other relevant authority or
body corporate up to the date of registration of transfer as advised by such local authority
or body corporate.". The document states further that “should she be required to effect
payment of any such amounts prior to registration of transfer, we agree to pay such
amounts to you upon request for payment by you”.
[12] There was a furry of e -mails and letters exchanged between the office of the first
respondent as the transferring attorneys and applicant's attorneys and throughout she
maintained her position that she does not want to get involved in the dispute regarding the
outstanding levies due to Summer Breeze. She offered to assist in an independent
capacity and retain the disputed amount in trust pending finalisation of the litigation
proceedings. For this to happen, parties were required to enter into a formal agreement
and if no agreement was reached, she will have no choice but proceed with the guarantee
as per the Association's statement provided to her. She records that her position was that
applicants were obliged to pay the levies in order for transfer to take place as there was
applicants were obliged to pay the levies in order for transfer to take place as there was
no condition that the review application were to be heard first before transfer could take
place. When her letters and emails were not responded to, she proceeded to ask the bank
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to issue guarantees in favour of Summer Breeze or attorneys so that a clearance
certificate can be issued. Closer to lodgement she sent an email to applicants’ attorneys
advising of progress and how the proceeds of sale will be dealt with. Tellingly, prior to
registration she informed the applicants that the matter has been lodged and the
transaction will register in 2 to 3 weeks’ time. No objection was raised and her mandate
remained in tact.
[13] The second to fourth respondents oppose the application and have raised 2
preliminary points namely, misjoinder and lis pendens. The lis pendens may have fallen
by the wayside as the urgent application has been withdrawn. The deponent to the
affidavit is Mr Gibson who describes himself as the director of the third respondent,
Summer Breeze Homeowners Association and duly authorised to depose to the affidavit.
He takes issue with his citation in his personal capacity and argues that there is no legal
basis for his involvement in this dispute as no relief is sought against him in his personal
capacity. He says that he has no direct and substantial interest in this litigation and relies
on the provisions of Section 19 (2) of the Companies Act 71 of 2008 to support his
argument that he is wrongly cited. He is right and this point should not detain us longer
than is necessary. It is upheld.
[14] He also says that there is no legal basis upon which the attorneys for Summer Breeze
should be involved in these proceedings and once again contends that they also do not
have any legal interest which is direct or substantial arising out of any order this court will
grant. The applicants require declaratory orders regarding the funds paid and essentially
needs to be refunded an amount paid by the bond attorneys to Summer Breeze.
Accordingly, the inclusion of the second respondent constitutes a misjoinder. I agree. The
point in limine of misjoinder regarding the second respondent is upheld.
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[15] On the merits, the respondents argue that applicants sold their immovable property
and were in law obliged to pay the levies and other charges owed to the homeowners’
association before a clearance certificate could be issued. Applicants were duly notified
through their attorney that guarantees will be issued in favour of Summer Breeze in
respect of the levies and no objection was registered by them or their attorney. It is
contended on behalf of the second respondent that it had no obligation to keep the funds
upon receipt from the bond attorneys. There is accordingly no merit in the application, and
it should be dismissed with costs on a punitive scale
[16] Applicants seek declaratory orders against the first and second respondents.
Declaratory orders are regulated by section 21(1)(c) of the Superior Courts Act 10 of
2013. To succeed applicants must satisfy the court that they have an interest in an
existing, future or contingent right or obligation and once the court is satisfied of the
existence of the right, it should exercise its discretion either to refuse or grant the order
sought. See Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd, 2005
(6) SA 205 (SCA) at para 17 and 18.
[17] The applicants in this case have a dispute with Summer Breeze regarding the total
amount due and owing in respect of the outstanding levies. They clearly do not have any
right existing, future or contingent against the first and second respondents. On their own
version the applicants have authorised the first respondent to process the transfer of
property and undertook liability for payment of all outstanding levies due to the HOA and
the municipality. They were notified of the total amount required by the HOA and all
attempts to resolve this dispute failed. Nonetheless they kept their mandate to the first
respondent and never revoked it even when they were informed that guarantees have
respondent and never revoked it even when they were informed that guarantees have
been issued and will pay directly to the second respondent. It is also noteworthy that the
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guarantees were payable to the second respondent and not the transferring attorney as
this signify that there is no claim to be made against her for the repayment of the funds.
[18] With regard to the second respondent, applicants have no right whatsoever to claim
anything against her. The second respondent was merely a collecting agent for the funds
required for the issuance of the clearance certificate. They owed no obligation to the
applicants in relation to the received funds and have accounted to their client, Summer
Breeze, in respect of same.
[19] As stated earlier, the dispute is between the applicants and Summer Breeze HOA.
The prayers to declare the conduct of the first and second respondent s invalid is ill-
conceived, and no case has been made for it.
[20] Regarding the third respondent which is Summer Breeze HOA, applicants request an
order that the funds paid by the purchasers be paid into their attorney's trust account. The
basis upon which this request is made is startling when considered against the fact that
they do not dispute their liability to the HOA, but the total and actual amount owed. So,
once liability is admitted, there can be no basis upon which the funds should be paid into
their attorney's trust account. The HOA issued the clearance certificate on the basis that
the disputed amount will be paid to them in line with the guarantees provided by the
applicants’ own conveyancer. To the extent that applicants believe that they have
overpaid the HOA, they should present proof of payment in respect of the acknowledged
amount and how it was arrived at. This is called debatement of the account. They failed to
do so and there is no legally justifiable basis upon which this court should order Summer
Breeze to pay over the funds to the applicants’ attorneys.
[21] In the circumstances, the application fails and the following order is made:
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21.1 The application is dismissed;
21.2 Applicants are ordered to pay respondents costs on a party and party scale B of
the High Court tariffs.
_________________________
M I
MANGENA
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
APPEARANCES:
Attorney for the Applicants: Lukhele Z Attorneys
Office No. 141 First Floor
32 Bell Street,
Caltex Building
MBOMBELA
Cell: 079 271 9687
E-mail: lukhelezattorneys@gmail.com
Ref.: CAM/CIV/024
Attorney for the First Respondent: Savage Jooste & Adams Inc.
King’s Gate
5 10 Street
PRETORIA
Tel.: 012 452 8200
C/O Annemarie Swanepoel Attoneys Inc
10
Crn. Russel & Nel Street, Ground Floor
MBOMBELA
Ref.: Neethling
E-Mail: mariuss@savage.co.za;
alet@swanepoel.co.za
Counsel for the First Respondent: Advocate JS Griessel
Tel: 0124528764
Cell: 0829204743
Email: kgriessel@law.co.za
Attorney for the Second to Fourth Respondents: M. Nienaber (Mrs.)
25 Roodt Street
MBOMBELA
Tel.: 013 518 0216
Cell: 072 203 9494
E-Mail: monique@waltersstander.co.za
carmen@waltersstander.co.za
Date of Hearing: 05 March 2026
Date of delivery: 06 March 2026