TODAY'S ALERTS

Facts and issue: The main claim is a claim for damages arising from the conduct of the defendants in seizing and subsequently declaring a commercial vehicle belonging to the plaintiff forfeit to the State. When the vehicle was returned to the plaintiff, it is their case that the vehicle had been damaged whilst in storage. The first claim is a claim for the income lost from the date of seizure up to the date the repairs on the vehicle had been effected and the vehicle was again suitable and fit to generate an income. The second claim is for the cost of transporting the vehicle from the place where the defendants stored the vehicle to the place where it could be repaired and for the costs of such repairs. The defendant raised a special plea of prescription in respect of both claims.

Discussion: The relevant period of three years contemplated in section 11(d) of the Prescription Act 68 of 1969, in respect of the claim for the necessary transport and repairs, had not lapsed from the debt becoming due to the date of service of the summons. Accordingly, this claim relating to the transport and repair of the vehicle has not prescribed. Ms De Kock submitted that, the plaintiff himself pleaded in a way that demonstrated that he had knowledge of the facts that were required to prosecute his claim on the 12 October 2009 being the date on which the relevant vehicle was seized near Upington. Mr Ackerman for the plaintiff initially argued that the seizure and forfeiture of the relevant vehicle was a unitary or single ongoing injury to the plaintiff. That the plaintiff could only institute the action once the ongoing injury had been ended by the judgment reviewing and setting aside the forfeiture order. That prescription would only run from the date that the application for leave to appeal the review judgment was refused alternatively from the date that the possession of the vehicle was restored to the plaintiff.

Findings: Debt’ as it is used in the said Chapter of the act has two elements to it. Firstly, an obligation that must be fulfilled or paid, depending on the circumstances. Secondly, a duty to fulfil that obligation or make the relevant payment as circumstances dictate. Mr Ackerman submitted that after the forfeiture order the defendants were no longer obliged to pay plaintiff any damages he suffered whilst the forfeiture order was in force. In these circumstances prescription could not run against the plaintiff as the defendants would not be obliged to pay the plaintiff’s claim while the forfeiture order stood. In other words, no debt as contemplated in Chapter III of the Act existed whilst the forfeiture order was in place. That this remained the position until the forfeiture order was reviewed and set aside. Whilst the forfeiture order stood, there can be no question of the defendants having an obligation to pay the plaintiff’s claims. It follows then that Chapter III of the Act can have no application whilst the forfeiture order stood. Extinctive prescription could not run whilst the forfeiture order was in place.

Order: The plaintiff’s claim for loss of income generated from the relevant vehicle for the period from 12 October 2009 up until the 14 October 2010 has become prescribed. To this extent the Special Plea is upheld. The plaintiff’s claim for loss of income from the 15 October 2010 up until the vehicle was returned to service has not prescribed. The plaintiff’s claim for transport of and repairs to the relevant vehicle has not prescribed.

Facts and issue: The applicant (Nedbank) and the second applicant (the Body Corporate) seek an order against the respondent (Mr Hassan) in accordance with Uniform Rule 49A(9)(e) read with (d). This subrule governs the situation where a court has previously ordered execution against the primary residence of a judgment debtor and has set a reserve price, and the reserve price is not achieved at a sale in execution. In these circumstances the Sheriff must submit a report to the court containing various details concerning the conduct of the auction. Thereafter, the court may order that the property be sold to the person who made the highest offer or bid.

Discussion: The market value of the immovable property, according to Nedbank’s March 2018 valuation was R700,000 and the municipal value as at July 2018 was R622,000. The sale in execution was scheduled at the premises of the Sheriff. On this occasion no bid that matched or exceeded the reserve price was achieved. The property was subsequently sold to the second respondent, Mr O.J. Chukwu for the sum of R201,000. Mr Chukwu signed the Conditions of Sale on 1 October 2019. The Body Corporate expresses its concerns about the impact of non-payment of levies for the property in question and asks for either of the alternates set out in Nedbank’s notice of motion. It supported the wish for the property to be disposed of as soon as possible, and the preference that the existing sale be confirmed. This was for largely practical reasons, including the desire to avoid the further costs of a second sale in execution conducted by the Sheriff and the increasing charges against the property.

Findings: Both Nedbank and the Body Corporate have placed evidence regarding the previous sale process, the growing unpaid charges concerning the property and the prejudice to all parties, including Mr Hassan, if the sale is further delayed. Mr Hassan’s contentions regarding the likelihood of an increased price being achieved on a forced sale are unsupported. Having taken all factors into account, it is in the best interests of all parties that an order be granted confirming the sale and directing that Mr Chukwu’s bid of R201,000 should be accepted on the basis of the Conditions of Sale signed by him on 1 October 2019.

Order: The Sheriff is authorised to accept the highest bid, which was achieved in the amount of R201,000 at the sale in execution conducted on 1 October 2019 in respect of the immovable property, which has already been declared specially executable.

Facts and issue: This is the extended return day of a provisional order of liquidation granted against the respondent, Redant. The applicant, Anthill, moves for a final order of liquidation. Anthill avers that Redant conducts business in a state of commercial insolvency and is factually insolvent as envisaged in section 345(1)(c) of the Companies Act 61 of 1973. It submits that it would be just and equitable that Redant be finally wound-up in terms of sec 344(h) of the Act, based thereon that a deadlock exists between the directors and shareholders and that Redant’s substratum has disappeared.

Discussion: It is submitted that Redant has no secured creditors and as such all its creditors, including both Anthill and Stelero, stands to receive a sizeable dividend which is a demonstratable advantage to Anthill, Redant and other possible creditors. Stelero resists the final relief claimed, relying thereon that Redant’s indebtedness to Anthill is disputed on bona fide grounds. Anthill avers that Redant’s indebtedness reflected as a loan account in the amount at the time of R6,995,156 is expressly and unambiguously recorded, and there cannot exist any dispute that Mr Le Roux signed these statements. It concludes therefore that Redant’s failure to respond to the demand in any way whatsoever, is by operation of law deemed to be unable to pay its debts and is therefore in a state of insolvency. Moreover, the insolvency is apparent from its financial statement which reflects losses for the financial years ending February 2021 and 2011. The respondent is not able to liquidate its assets (in the form of erven), rendering it just and equitable that Redant be wound-up.

Findings: There is no genuine factual dispute regarding the existence (and correctness) of the Anthill’s claim. The debt is not bona fide disputed on reasonable grounds by Stelero. Anthill has proven on a balance of probabilities that it has the necessary locus standi as creditor of Redant to have petitioned to the court, that Redant is indebted to it in the amount as claimed, is unable to make payment thereof despite demand, and that there would be an advantage to the general body of creditors. Anthill has made out a case for a final order of liquidation.

Order: The respondent company Redant Developments (Pty) Ltd is placed under final liquidation in the hands of the Master of the High Court (Free State Provincial Division).

Facts and issue: The current review seeks clarity of a legal impasse on whether a criminal trial proceedings which commenced at the Magistrate court before an Acting Magistrate whose acting stint or term expired prior to finalization of a trial, should be declared a nullity, such that it should be ordered to start de novo before another presiding officer, alternatively, whether the concerned and available Acting Magistrate, whom by law is deemed to be seized with the said partly-heard matter, should be invited by the Head of that particular court to come and finalize the pending or unterminated trial.

Discussion: The accused has already pleaded to the charge, and the State has already adduced and led extensive evidence against him. It is impermissible, irregular and untenable in law for a partly-heard matter to be rendered a nullity and to start de novo before another presiding officer for any other reasons other than that which is provided for in terms of the law. Unauthorized and unlegislated demands of whatever form by an office-bearer cannot be considered a reason to abandon the duties and responsibility any officer of the court is entrusted with, not unless as in this instance, the “unavailability” of a Magistrate could be due to special circumstances such as death, recusal, dismissal, resignation and/or mental incapacity, which is not the case in casu.

Findings: The current review does not warrant a consideration to have the pending proceedings herein declared null and void, such that they must be set aside and ordered to commence afresh. Mr. Mmakola, Mrs. Langley, the court administration support staff and the legal representatives involved in the matter, are directed to be informed of the judgment in order to put all systems in place as soon as possible and make sure that the pending criminal trial resumes and is finalized in the best way possible without further undue delay.

Order: The accused’s pending criminal trial be resumed as soon as it is reasonably possible or with immediate effect before Acting Magistrate M.K Mmakola.

Facts and issue: The applicants seek an interdict against the respondent from claiming to be, or purporting to be, a legitimate representative of the community. The interdict also seeks to prevent the respondents from convening community meetings to discuss developments and projects of the community. The applicant was issued with a Certificate of Recognition by the Premier of the North West Province as the lawful Acting Kgosi of the community.

Discussion: The respondent claims that the applicant is no longer the Acting Kgosi as the Certificate of Recognition has lapsed with the passing of the respondent’s father. The applicant has been duly appointed as the Acting Kgosi of the Traditional Community and Traditional Council. The Certificate of Recognition as issued by the Premier cemented that position and has not been withdrawn. The applicant approaches the court for an interdict to prevent the first respondent from purporting to be a community leader and to prevent the first respondent from calling community meetings. Section 18(1)(g) of the North West Traditional Leadership and Governance Act 2 of 2005 provides the right to call meetings of the traditional community, exclusively to the applicant. The respondent thus does not have the right to call any community meetings. The applicant has established a clear right to the relief sought.

Findings: When the respondent issues a notice in calling a community meeting, it appears on the face of it that the respondent, as some type of community leader, is calling the meeting. The Act does not make provision for any concerned community member to call for a community meeting. Since it is only the Acting Kgosi or Kgosi that is legislatively empowered to call a community meeting, the respondent’s conduct in calling a community meeting is disruptive to the duties of the Acting Kgosi or Kgosi. The applicant has established a clear right to the relief sought, a reasonable apprehension of irreparable harm in the event that the relief is not granted, and the applicant has successfully established that there is no alternative relief available to him.

Order: The respondent and any other person or group of people acting at their behest or as their agents, or on their own, individually or as a group in association with the respondents, are interdicted and restrained from claiming and/or purporting to be legitimate representatives of Bahurutshe boo Manyana Traditional Community.

Facts and issue: A decree of divorce was granted between the parties, and judgment was reserved in respect of the patrimonial consequences of the divorce. The marriage was concluded out of community of property, without an accrual (the agreement). In respect of her claim for a redistribution order, the plaintiff prays for an order that the defendant transfers to her one half or such portion of the defendant's estate as this court may find just and equitable in terms of section 7(3) of the Divorce Act 70 of 1979.

Discussion: The plaintiff contends that her claim for redistribution arises out of the contributions she made to the growth and/or the increase of the defendant’s estate, during the subsistence of the marriage, whether such contributions were made directly or indirectly. It was argued on behalf of the plaintiff that neither party presented any written agreement in terms of which they agreed to any form of distribution of assets during the marriage, and that neither of the parties led any evidence regarding a verbal or informal agreement that they reached in respect of redistribution of assets during the marriage. It is accordingly submitted, that based on the common cause facts, that the plaintiff meets the minimum requirements to institute a claim for redistribution in terms of Section 7(3), read with sub-sections (4), (5) and (7) of the Act. It is the plaintiff's submission that her contribution in the form of physical work done as well as financial contributions towards the household, directly contributed towards the defendant, saving the costs of employing a fulltime domestic worker to assist with these household tasks.

Findings: The parties tendered different versions as to the conclusion of the agreement. The plaintiff’s version overall was more probable. She explained that her parents were not able to advise the parties on the conclusion of such an agreement, given their scholastic qualifications. The plaintiff met the minimum requirements to institute a claim for redistribution. The plaintiff directly contributed towards the growth of the defendant's estate. Her contributions assisted him in saving expenses that he would otherwise have had to incur. Those savings directly contributed to him building a substantial pension and investment portfolio. The plaintiff has proved an entitlement to a redistribution order.

Order: A redistribution order is issued in favour of the plaintiff, directing the defendant to pay to the plaintiff 35% of the defendant's estate. The defendant is ordered to pay spousal maintenance to the plaintiff in the amount of R18,000 per month until he reaches retirement age, whereafter spousal maintenance shall be paid to the plaintiff in the amount of R25,000 per month.

Facts and issue: The plaintiff and the defendant were married in community of property and one adult child aged 25 was born from the marriage. The parties have not been living together as husband and wife for the last five years and it is common cause that there is a complete breakdown of the marriage, and a decree of divorce should be granted. The only dispute is if there must be a division of the joint estate or forfeiture as pleaded in her counterclaim by the defendant.

Discussion: The defendant has been working fulltime for the last 28 years, keeping the household intact, bringing in the salary to finance and pay for monthly expenses and hoping things will change, but it never did. The court also recognized the contribution by the plaintiff in kind, during the years of the marriage which the role of the homemaker, father and husband, the renovator and maintenance man, and should not be undervalued, because it is not measurable in terms of money. The decision made for the plaintiff to resign and start a business 20 years ago was a joint decision. There is no proof in the court documents or the oral evidence by both parties that any substantial misconduct by the plaintiff or adverse deliberate financial abuse of the joint estate can be considered.

Findings: The plaintiff and defendant started with nothing and both efforts accumulated two properties and the defendant’s pension fund. The immovable properties that are jointly owned by the parties be sold and the net proceeds be divided equally between them. The plaintiff is to be awarded 50% of the defendant’s interest in the pension fund.

Order: A decree of divorce is granted. An order is granted for the division of the defendant’s interest in the ESKOM Pension Fund. The immovable properties that are jointly owned by the parties be sold and the net proceeds be divided equally between the parties subject to any outstanding monies, or loans accruing to the joint estate to be deducted.

Facts and issue: The respondent wife obtained an order against the applicant husband in her application in terms of Rule 43. The order was obtained on an unopposed basis. The husband failed to deliver his replying statement within the prescribed 10-day period. This Rule 43 order forms the subject matter of the husband’s application for a rescission thereof, as well as the wife’s counterapplication for contempt of court.

Discussion: The wife was procedurally entitled to approach the court without further notice to the husband in the absence of his replying statement being delivered. Thus, the Rule 43 order cannot be termed erroneously sought. The court is not satisfied that the husband has met both elements of ‘good cause’ nor that it would be in the interests of justice to grant the rescission sought. The wife seeks an order that the husband be convicted of the offence of contempt of court for his wilful and mala fide non-compliance with the Rule 43 order. The wife asserts that the husband failed to pay the cash maintenance in full, failed to return the Range Rover Autobiography to her, did not pay the contribution towards her legal costs, and failed to make such payments in respect of the Range Rover (it is not clear which of the two) as he was ordered to do. The husband’s response is simply that he cannot afford to make the payments.

Findings: On condition that the amount of maintenance payable is certain or easily ascertainable, execution by way of a writ is generally the most appropriate manner to enforce compliance with a maintenance order. By way of a writ, the maintenance creditor is more likely to receive payment of the arrears than should the maintenance creditor be incarcerated. The husband has paid at least a portion of the maintenance due in terms of the order, and the vehicle has been delivered. If there were material changes in the husband’s financial circumstances since the granting of the Rule 43 order, he is at liberty to approach the court for a variation or a maintenance court of competent jurisdiction. Until the Rule 43 order is varied, he must comply with its terms, in full and on time.

Order: The husband’s application for rescission is dismissed. The wife’s counterapplication for contempt of court is dismissed.

Facts: The plaintiff and the defendant met in 2003 in Uzbekistan and had a romantic relationship out of which their two children were born and one has attained the age of majority. The plaintiff was a contract electrical engineer for Alstom and the only family breadwinner. In 2021 the defendant vacated the matrimonial home with the children and relocated to KwaZulu-Natal to reside with her sister. In October 2021 the plaintiff instituted this divorce action.

Claim: When the matter eventually came to trial almost all of the issues in dispute had been settled by the parties who also agreed on the orders to be made in respect thereof. The only issues remaining in dispute are in essence the spousal maintenance and the quantum in respect of the maintenance of the minor child.

Plaintiff: the plaintiff confirmed that he had received a letter from his employer, General Electric, that his employment contract would cease from November 2024 and his final employment month would be December 2024. He further stated that this meant that he would no longer have any income from December 2024. He further stated that he has no retirement annuity or any other investments and that the house he is currently residing in as well as his vehicle belong to his employers and will cease to be available to him after the cessation of his employment in December 2024. The only assets he is left with are, according to his testimony, a television and an air-fryer.

Defendant: The defendant has not disputed that the couple had about R440,000 in their bank account which had been earned by the plaintiff. She however failed to explain what she did with the money to which only she had access. There is no doubt that she could have invested or used these funds to set up a business or assist her in these times of need. She did not testify as to what she does with the additional money of about R7,000 per month meant for the eldest major child, which she has ostensibly been receiving for some 14 months now. The fact that she cannot use English fluently is not a good ground why she cannot seek and find employment. The court has to take into account that the defendant benefited as she took possession of the couple’s assets when she vacated the matrimonial home. The plaintiff is only left with television set and an air-fryer.

Findings: The plaintiff, as the only bread winner, provided for the defendant and the children. He further provided her with opportunities which she squandered. The plaintiff’s situation has changed and he is now 65 and about to retire with no source of income. While the couple may have lived comfortably, it is now clear that their standard of living has to change. It must further be considered that the defendant is only 45 years of age whereas the plaintiff is 65 and about to retire in six months’ time or so. While she may not necessarily be able get the type of employment she wants, it is however common cause that the defendant can still work for a period of 20 years from now. The defendant has failed, on a balance of probabilities, to discharge the onus of proving that she is entitled spousal maintenance.

Order: An adjustment is to be affected in favour of the defendant on division of the joint estate in the amount of R125,000 in terms of section 15(9) of the Matrimonial Property Act 88 of 1984. The maintenance in respect of the minor child is to continue in terms of the existing order. The defendant’s counterclaim in respect of spousal maintenance is dismissed.

Facts and issue: The respective applications for the voluntary surrender of the estates of the applicants follows shortly on the dismissal of previous applications by the applicants for the voluntary surrender of their estates. The applicants have not appealed the orders handed down in the previous applications. The applicants instead have approached the court with applications which have been supplemented in circumstances where applications for postponement to supplement the failed applications was refused. The issue in the applications under consideration is with the substantive requirements.

Discussion: The applications beg the question whether sufficient facts demonstrative that the estates of the applicants is insolvent, that the applicants own realizable property of a sufficient value to defray all costs of the sequestration which will in terms of the Insolvency Act 24 of 1936 be payable out of the residue of his estates; and that it will be to the advantage of the creditors of the applicants if their estates are sequestrated. The main bone of contention is with the last of these substantive requirements, whether it will be to the advantage of the creditors of the applicant if their estates are sequestrated. The present applications seek to address concerns raised in the previous failed applications in what can only be described as an abuse of process considering the fact that the indulgence of a postponement was refused in those applications.

Findings: The applicant is seeking a proverbial second bite at the cherry, has still failed in demonstrating that the surrender of his estate would be to the benefit of his creditors. Save for the very broad allegation, the court is not privy to a call log of the numerous phone calls alleged by Mr Maritz. The court is also not furnished with detailed statements from the creditors to appreciate the extent of the inability to service the debts. Ms Le Roux similarly fails to set out with specificity the nature of the debts and steps taken by her creditors to recover same. The applicants’ have failed to make a full and frank disclosure of material facts as in their previous applications. The present applications constitute nothing more than an abuse of the court process.

Order: The respective applications for the voluntary surrender of the estates of the applicants is dismissed.