1198/97 in the High Court of South Africa

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1198/97 in the High Court of South Africa DISTRIBUTABLE CASE NO : 1198/97 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: J M MOTHUSI 1st APPLICANT LEROTHODI GARAGE (PTY) LTD 2nd APPLICANT UNCLE JOE'S BAR LOUNGE 3rd APPLICANT AND RESTAURANT (PTY) LTD and FEDMARK (PTY) LTD 1st RESPONDENT DIRK DU PLESSIS SCHOEMAN 2nd RESPONDENT WHITE RIVER CONSTRUCTION (PTY) LTD 3rd RESPONDENT SAMUEL DIKOTA 4th RESPONDENT JACOBUS COENRODUS STRAUSS 5th RESPONDENT THE DEPUTY SHERIFF, TAUNG AND GANYESA 6th RESPONDENT THE REGISTRAR OF DEEDS, VRYBURG 7th RESPONDENT THE STANDARD BANK OF SOUTH AFRICA LTD 8th RESPONDENT Application Waddington J Mafikeng Date of hearing : 5 February 1998 Date of judgment : 26 February 1998 For the applicants : J H L Scheepers For the first, second and third respondents : K J Kemp SC Waddington J: This application was the culmination of a number of separate applications which arose out of the sale in execution of a certain property previously registered in the name of the first applicant. The third respondent became the owner of that property via the sale in execution in question at the instance of the first respondent, the first applicant being the judgment debtor. It was common cause that the nature of the interest of the second and third applicants and of all the respondents save the third respondent is tangential to the essence of the dispute in the present application. In an effort to recover his lost ownership in the property in question, the first applicant brought an urgent application in this court on 9 May 1997. After a number of postponements of that application, the parties reached agreement which was made an order of court on 11 September 1997. I shall refer to that order as ªthe settlement.º The meaning of certain portions of the settlement became the subject of further dispute which has resulted in the bringing of the present application which was heard on 5 February 1998. The hearing was bedevilled by the failure of the respondents' attorneys to file a copy of the respondents' answering affidavit until the omission was discovered ten minutes before the hearing. To make matters worse, the applicants' attorneys had failed to ascertain whether the record was complete and paginated at least four days before the hearing. The result was that the papers were not complete until the answering affidavit was handed up to the bench by Mr Kemp who was embarrassed by the omission of his instructing attorneys. The papers were never paginated. Because counsel for the parties had travelled from afar, argument was heard despite all the difficulties. But for this consideration, the application would have been struck from the roll with no order as to costs as a result of the parties' failure to comply with the rules of court. THE SETTLEMENT It is necessary to set out the relevant portions of the settlement. ª1. Die applikante trek hiermee die aansoek (saaknommer 451/97) terug, en stem toe tot die opheffing van die tussentydse bevele, interdikte en bevele nisi. 1. Die derde respondent betaal aan die prokureurs van die eerste applikant `n bydrae tot die koste van die applikante in hierdie aansoek in `n bedrag van R30 000,00 welke bedrag as volg betaalbaar is: 2.1 R15 000,00 op of voor 7 Oktober 1997; en 2.2 R15 000,00 op of voor 7 November 1997. 2. Die eerste applikant betaal aan die vyfde respondent (Jacobus Coenradus Strauss) die bedrag van R465 000,00 (Vierhonderd vyf en sestig duisend rand) in volle en finale vereffening van enige gelde wat die eerste applikant aan die eerste en/of derde en/of vyfde respondent verskuldig mag wees uit hoofde van die skuldoorsake voortspruitend uit die voormelde Noor-Kaapse saaknommer 173/1988 en/of enige ander skuldoorsaak van watter aard ookal, en watter bedrag kapitaal, rente en koste insluit. 3. Die voormelde bedrag is betaalbaar in kontant nie later as 31 Desember 1997. 4.1 Die bedrag is betaalbaar aan die vyfde respondent per adres Standard Bank, Vanderbijlpark vir krediet van die vyfde respondent op kredietkaartrekening nommer 5221 2610 9083 5679. 4.2 Die bedrag is betaalbaar in kontant en nie per tjek of per bankwaarborg nie. .......................................... 4. Betaling van die bedrag van R465 000,00 voor of op 31 Desember 1997 sal geskied teen kansellasie van die beslaglegging en verkoping in eksekusie, en registrasie van die onroerende eiendom te wete Erf nommer 5 - Taung (Voorheen Lot 5 van Blok A) Geleë in die Afdeling vanVryburg Groot 4283 vierkante meter in die naam van die Eerste Applikant In sodanige geval, 6.1 word die sewende respondent gemagtig en gelas om by wyse van endossement die eiendomsreg in die voormelde eiendom te herstel in die naam van die eerste applikant; 6.2 in soverre dit nodig mag wees dat enige dokumente onderteken moet word ten einde registrasie van die eiendom te herstel in die naam van die eerste applikant, word die sesde respondent gemagtig en gelas om sodanige dokumente te onderteken; ..................................... 5. Indien die eerste applikant sou versuim om die voormelde bedrag van R465 000,00 aan die vyfde respondent te betaal voor of op 31 Desember 1997, 8.1 sal die applikante geen verdere aanspraak hê op, of enige reg hoegenaamd op die voormelde onroerende eiendom of die verbeterings daarop of die huurgelde betaalbaar ten aansien daarvan nie; 8.2 sal die applikante nie aanspreeklik wees vir betaling van enige gelde insluitende die terugbetalling van die bydrae tot die regskoste aan die eerste, tweede, derde of vyfde respondent voortspruitend uit hierdie aansoek of die voormelde Noor-Kaapse aksie of enige ander moontlik tans bestaande skuldoorsaak nie; 8.3 sal die derde (en/of tweede en/of vyfde) respondente na goeddunke met die aandele in die derde respondent en/of met die voormelde onroerende eiendom kan handel; 8.4 sal die applikante die eiendom onmiddelike ontruim in soverre hulle in okkupasie van gedeeltes daarvan is.º RELEVANT FACTS AND GENERAL BACKGROUND CONSIDERATIONS WHICH ARE COMMON CAUSE 6. The amount of R465 000,00 referred to in clauses 3 and 8 of the settlement was not paid by the first applicant on or before 31 December 1997. 7. Transfer of the property referred to in clause 8 of the settlement has not been effected to date. 8. A dispute as to the correct meaning of clauses 4, 6 and 8 of the settlement arose between the parties before 31 December 1997 in consequence of which the applicants brought an urgent application on 31 December 1997. An order by consent was then granted postponing the application and an undertaking was given by the respondents the general effect of which was to do nothing which might prejudice the applicants' interests pending the final determination of the application. THE RELIEF SOUGHT The applicants, in their amended notice of motion, seek a declaration to the following general effect That on a proper interpretation of the terms of the settlement - (a) The amount of R465 000,00 was payable by the first applicant to the fifth respondent only after the registration of the immovable property in question in the name of the first applicant; (b) the provisions of clause 8 of the settlement would be of no force and effect if the fifth respondent failed to register the immovable property in question in the name of the first applicant on or before 31 December 1997; Alternatively to paragraphs (a) and (b) above (1) The amount of R465 000,00 would be payable by first applicant to fifth respondent against registration of the property in the name of the first applicant only on the basis of clause 4 of the settlement; (2) the amount of R465 000,00 would be payable by first applicant to fifth respondent as contemplated by clause 8 of the settlement after the handing over by the fifth respondent to the first applicant of a certificate issued by the registrar of deeds of the registration of the property in question in the name of the first applicant; Alternatively to paragraph (2) (3) in the event of the court finding that the amount of R465 000,00 was not payable by first applicant to fifth respondent only after the handing over of a certificate as described in paragraph (2) above, what procedure was contemplated in clause 4 of the settlement that the first applicant was required to follow in effecting payment against registration of the property in question in order to secure registration; (4) the provisions of clause 8 of the settlement would be of no force and effect if the fifth respondent failed to register the immovable property in question in the name of first applicant on or before 31 December 1997. The remainder of the notice of motion was concerned with incidental matters calculated to ensure the position that the respondents would do nothing to prejudice the applicants' claimed rights pending the final determination of this application. These matters were adequately catered for, as already indicated, in the undertaking provided by the respondents on 31 December 1997. The response of the respondents who have answered the notice of motion as contained in the answering affidavit is that the object of the settlement was to put an end once and for all to the drawn-out dispute. The crux of the settlement, it was submitted, was that (as revealed by clauses 6 and 8 of the settlement) the first applicant was to pay fifth respondent R465 000,00 on or before 31 December 1997 against transfer of the property to secure the return to him of the property in question. Failing such payment by 31 December 1997, the first applicant would forfeit all expectations of retrieving the property in the manner contemplated in the settlement.
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