Cline v Cline and Others (2022-039758) [2023] ZAGPJHC 966 (25 August 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case Number: 2022-039758

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

DATE: 28 August 2023

SIGNATURE

In the matter between

CLINE,

GREGORY BOBBY Applicant

and

CLINE,

MICHAEL SOLOMON

First Respondent

CLINE,

BRADLEY IRA

Second Respondent

FEIGIN,

PETA IRA Third

Applicant

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by e-mail. The date and time for hand down is deemed to be 14h00 on 25 August 2023.

JUDGMENT

MUDAU, J:

[1] On 19 July 2023, I made the following order:

“1. The First Respondent shall pay to the Applicant an amount of R 7 000 000 (SEVEN MILLION RAND).

2. The First Respondent shall pay interest to the Applicant on R7 000 000 (SEVEN MILLION RAND) at the prime rate of interest charged by Investec currently at 9.5% per annum from 17 August 2022 to date of final payment.

3. The First Respondent shall pay the costs of suit and all other costs incurred by the Applicant on the scale as between attorney and own client.

4. The following immovable properties are declared specially executable: —

4.1 Erf 1[...] Stand 3[...] situated at 3[...] R[...] Road, Plettenberg Bay, Western Cape held under title deed R[...] (the "Plett

Property”).

5. No reserve price is set in respect of the Plett Property.

6. The application in respect of declaring the immovable property situated at Lot 8[...] D[...] situated at 6[...] K[...] Road,

Dunkeld, Johannesburg held under title deed T[...] (the "Dunkeld Property”) valued specially executable, is postponed sine die”.

[2] The matter served before me as a default judgment application. The facts are uncontroverted. The applicant issued summons against the first respondent seeking payment in the amount of R7million; interest on R7million at the prime rate of interest charged by Investec, from 17 August 2022 to date of final payment; Costs of suit on an attorney and client scale; and an order declaring the following immovable properties executable. These properties are, Lot 8[...] D[...], at 6[...] K[...] Road, Dunkeld, Johannesburg (the "Dunkeld Property") valued at R25 333 000.00; Erf 1[...] Stand 3[...] situated at 3[...] R[...] Road, Plettenberg Bay (the "Plett Property").

[3] The first respondent, Michael Solomon Cline, resides at 6[...] K[...] Road Dunkeld, Johannesburg and is the father of the applicant. The second respondent, Bradley Ira cline, is the brother of the applicant. The third respondent, Peta Ira Cline, is the sister of the applicant.

[4] The second and third respondents were cited insofar as they may have a direct and substantial interest in the outcome of the action. All three respondents opposed the action. However, the respondents failed to deliver a plea timeously. Consequently, on 18 January 2023, a notice of bar was served on the respondents. The Respondents failed to react to the notice of bar and were, accordingly, ipso facto barred from filing a plea.

Background facts

[5] The applicant averred that the debt of R7million arises out of a settlement agreement concluded between the parties in respect of monies allegedly misappropriated by the first respondent from the applicant's mother’s deceased estate. This is not in dispute. The settlement agreement contemplated

that mortgage bonds would be registered over the Dunkeld and Plett Properties as security for discharge of the debt, which was not done. The applicant received payment of R450 000.00 from the first respondent, as contemplated in the settlement agreement, but the remaining R7million.

[6] Clause 4 of the settlement agreement stipulates that: “The Parties agree that the Covering Bonds over Plett and Dunkeld in the sums of R2,000,000.00 (two million Rand) and R5,000,000.00 (five million Rand) respectively, shall be registered as to Plett within 120 (one hundred and twenty) days from the date of signature of this agreement in regard to Dunkeld unless Plett is sold and the bonds on Dunkeld defrayed and then the covering shall forthwith be registered over Dunkeld as well.. The total Covering Bonds to be registered shall be for an amount of R7,000,000.00 (seven million Rand). Should either the Covering Bond for Plett not be in place forthwith (and in any event within 120 (one hundred and twenty) days) or the Covering Bond for Dunkeld not be in place within 12 (twelve) months of the signing of the agreement, MSC (the first respondent) will be in breach thereof. Breach will occur if either of the Covering Bonds are not registered timeously”.

[7] On the eve of hearing this application, the respondent launched an application in terms of rule 30A(2) of the Uniform Rules of Court ("the Rules" ) seeking an order to strike out the applicant’s notice of motion re: Default judgement application issued on 25 May 2023 and served on 26 May 2023, on the basis that they were given 5 days to respond indicating their intention to oppose instead of 10 days, in accordance with Rule 6(5)(b)(ii) of the Uniform Rules of Court.

[8] According to counsel who appeared on behalf of the respondents, a 'with prejudice offer” was made on 18 July 2023, to the applicant to tender performance, with costs on a party and party scale, in accordance with the contract and thus settle the matter. The respondents expressed fear that the primary residence of the first and third respondents will be sold in execution.

[9] There was no attack on the settlement agreement or any genuine defence being raised. The terms of the order specifically address the fear expressed by the respondents. I could find no material prejudice to the respondents occasioned by the application. The set down date did not prejudice the respondents. It is for the above reasons that the order was made.

TP MUDAU

JUDGE OF THE HIGH

COURT

JOHANNESBURG

APPEARANCES

For the Applicant: Adv. Adv. K Sila Instructed by: Rothbart Incorporated For the Respondent: Adv. J Hoffman Instructed by: Stan Fanaroff & Associates Date of Hearing: 18 July 2023 Date of Judgment: 25 August 2023