Lukhele v Fernbrook Estate and Others (61719/13) [2015] ZAGPPHC 116 (17 February 2015)

Lukhele v Fernbrook Estate and Others (61719/13) [2015] ZAGPPHC 116 (17 February 2015)

The court held that the applicant is only obliged to pay amounts for rates, taxes, levies, and other charges due to the first respondent which have not prescribed, calculated by adding the amounts for the three years directly preceding the date upon which the first respondent refused to issue a clearance certificate. The applicant's undertaking in the conditions of sale does not constitute a waiver of the right to raise prescription. The court rejected the respondent's points in limine regarding service and non-joinder, finding them without merit. The relief sought by the applicant was granted in part, subject to recalculation of the amount owed in accordance with the prescription period.

Citation
[2015] ZAGPPHC 116
Parties
Applicant: Lukhele Sifiso Fred; Respondent: Fernbrook Estate; Respondent: Registrar of Deeds, Pretoria; Respondent: The Standard Bank of South Africa Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 February 2015
Case Number
61719/13
Procedural Posture
Civil Application / Judgment
Outcome
Application granted in part; orders made for recalculation of the amount due, issuance of clearance certificate, and transfer of property subject to payment.
Judges
M F Legodi
Legal Topics
Clearance Certificate, Prescription of Debt, Transfer of Property, Sale in Execution
Land and Property Civil Procedure Clearance Certificate Prescription of Debt Transfer of Property Sale in Execution

Case Brief

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Parties

Lukhele Sifiso Fred

Applicant

Fernbrook Estate

Respondent

Registrar of Deeds, Pretoria

Respondent

The Standard Bank of South Africa Ltd

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the applicant is obliged to pay all arrear levies, rates, taxes and other charges before a clearance certificate can be issued for transfer of the property.
  2. 2 Whether the normal prescription period of three years applies to the charges levied by the first respondent.
  3. 3 Whether the applicant, as purchaser at a sale in execution, may raise prescription as a defence to the first respondent's claim for arrears.

Ratio Decidendi

The court held that the applicant is only obliged to pay amounts for rates, taxes, levies, and other charges due to the first respondent which have not prescribed, calculated by adding the amounts for the three years directly preceding the date upon which the first respondent refused to issue a clearance certificate. The applicant's undertaking in the conditions of sale does not constitute a waiver of the right to raise prescription. The court rejected the respondent's points in limine regarding service and non-joinder, finding them without merit. The relief sought by the applicant was granted in part, subject to recalculation of the amount owed in accordance with the prescription period.

Court Disposition

Application granted in part; orders made for recalculation of the amount due, issuance of clearance certificate, and transfer of property subject to payment.

Orders

  • The applicant is ordered to pay to the first respondent an amount recalculated to include only rates, taxes, levies, and other charges due within the three years preceding the refusal to issue a clearance certificate.
  • Upon payment, the first respondent must issue a clearance certificate and take steps required by the second respondent to effect transfer of the property into the names of the applicant and his wife within 15 days.