S.S v Y.S (4165/2022) [2023] ZAMPMBHC 28 (15 May 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

(MPUMALANGA DIVISION, MBOMBELA)

CASE NO: 4165/2022

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: YES

(3) REVISED: YES

SIGNATURE:

DATE: 15/05/2023

In the matter between:

S[...] S[...]

Applicant

and

Y[...] S[...]

Respondent

J U D G M E N T

MASHILE J:

INTRODUCTION

[1] During divorce proceedings on 22 February 2019 between the Applicant and Respondent (“the parties”), this Court while still functioning as Mpumalanga Circuit Court, Mbombela, granted an order of divorce incorporating a settlement agreement (“the agreement”) concluded by the parties on 18 December 2018. In November 2019, the parties verbally varied the agreement. The Applicant avers that in consequence of the Respondent’s contravention of the verbal agreement, he cancelled it and seeks confirmation thereof. The verbal agreement is common cause between the parties except that the Respondent now alleges that there was an additional term, which the Applicant denies.

[2] Once cancellation of the verbal agreement is confirmed, the Applicant seeks relief that:

2.1 The Respondent be directed to sign any and all documentation necessary to give effect to the proposed sale and subsequent transfer of the immovable property, described hereunder, into the name of the prospective purchaser within 7 days of being presented with such documentation. Failing the aforesaid, the Sheriff of the High Court, L[...] be authorised to sign the required documentation;

2.2 The Respondent be ordered to give access to the immovable property to:

2.2.1 the draughtsman appointed by the Applicant to update the existing building plans and/or to draft new building plans depending on what might be necessary, such plans to be submitted to the Local Municipality for approval in compliance with the Thaba Chweu Local Municipality Spatial Planning and Land Use Management By-Laws; and/or

2.2.2 the valuer appointed by the financial institution where the prospective purchaser obtained a loan from if necessary and to give effect to the transfer of the immovable property into the name of the prospective purchaser.

FACTUAL MATRIX

[3] The parties were married out of community of property, with the inclusion of the accrual system. On 22 April 2015 and during the subsistence of their marriage, the parties purchased the immovable property described as:

PORTION 84 OF ERF 2[...] L[...] E[...] [...] TOWNSHIP REGISTRATION DIVISION J.T., PROVINCE OF MPUMALANGA MEASURING 990 (NINE HUNDRED AND NINETY) SQUARE METERS HELD BY DEED OF TRANSFER T[...](“the property”).

[4] The parties subsequently obtained a home loan from the Standard Bank of South Africa (“Standard Bank”) to enable them to acquire the property. On 29 March 2016, Standard Bank registered a mortgage bond in its favour for an amount of R1 040 000-00 under bond number: B[...]. The parties are jointly and severally liable to Standard Bank for this debt and there is still an outstanding amount of approximately R929 996.07.

[5] Clause 3 of the agreement entered into by the parties deals with the aspect of division of the parties’ property and it provides that:

“DIVISION OF ASSETS: IMMOVABLE PROPERTY

3.1 The Plaintiff has the option to buy the Defendant’s 50% share in their shared immovable property situated at 5[...] B[...] P[...] Street in L[...] at a price acceptable for the Defendant, in which instance a Deed of Sale must be drafted and signed within 30 days after the finalization of the divorce. The Plaintiff shall be liable for the mortgage payments, bills, up keep or maintenance of the property from date of signature of the Deed of Sale;

3.2 If no agreement is reached and signed within 30 days after the finalization of the divorce, the immovable property situated at 5[...] B[...] P[...] Street, L[...] will be sold and the profit shall be divided equally between the parties. If the house is leased, the lease amount will be shared equally between the parties after all necessary payments regarding the property has been made. Both parties will jointly be liable for all mortgage payments, bills, up keep and maintenance of the immovable property until the property is sold and transferred to the third party. All amounts due in terms of this clause by either party regarding the mortgage payments, bills, up keep or maintenance of the property will be deducted from their 50% share in the immovable property;

3.3 Both parties will sign all documentation for the transfer of the said property as soon as they are requested to do so.”

[6] When the divorce order was granted, the Applicant lived in the property together with two of the parties’ children. One child was still a minor and in school. The eldest child had attained majority and was attending University. The Respondent resided elsewhere with one of the parties’ children who was still a minor and home-schooled at the time. The Applicant alleges that he paid the bond instalments, municipal accounts, consumption charges, insurance and maintenance in respect of the property without contribution from the Respondent.

[7] The Applicant alleges further that this had to be the case as he lived in the property and had the benefit thereof. It was for this reason that Clause 3.1, he said, was included into the agreement. The Applicant initially continued to reside in the property after the lapse of the period mentioned in Clause 3.1 of the agreement and paid those expenses referred to therein. This was by agreement between the parties.

[8] The Applicant chose not to purchase the Respondent’s undivided half share in the property. As such and as per Clause 3.2 read with Clause 3.3 of the agreement, the property was to be sold. The Applicant states that he had intended to move to Mosselbay. During approximately June to August 2019, he advised the Respondent of his impending relocation.

[9] Shortly before the Applicant could move to Mosselbay, the Respondent made a proposal to him to move into the property with their minor child an avoid selling it. The Applicant agreed on the proviso that the Respondent would pay those expenses associated with the property. When the Applicant agreed, a verbal agreement in the terms stated below was concluded. On 15 November 2019, the Applicant vacated the property. On the same day, the Respondent took occupation. Neither

party still resides with the children because they have all attained majority.

[10] The terms of the verbal agreement that was entered into during November 2019 between the parties were that:

10.1 The Respondent together with one of the parties’ minor children, would reside in the property for an undetermined period;

10.2 The Respondent and the minor child would occupy the property and receive the exclusive use and benefit of the property;

10.3 The Respondent would be solely responsible for payment of:

10.3.1 the bond instalments to Standard Bank, inclusive of the insurance premium;

10.3.2 the municipal accounts, including rates, taxes and consumption charges; and

10.3.3 all costs associated with the maintenance and up-keep of the property, as well as any other charges associated with the property.

10.4 The Respondent would be responsible for the payment of those expenses associated with the property from 1 December 2019.

[11] The Applicant alleges that prior to moving out of the property, he had made certain that all expenses were settled up to and including 30 November 2019. This was to ensure that the Respondent and the minor child took occupation of the property without any lingering debts from the time of the Applicant’s occupation. This is denied by the Respondent though.

[12] The Applicant states that he observed all his obligations arising in terms of the verbal agreement. On 15 November 2019, he vacated the property whereupon the Respondent simultaneously took occupation. The Respondent failed to comply with the terms of the parties’ verbal agreement by failing to pay:

12.1 The monthly bond instalments timeously, in full and/or at all. The total monthly bond instalment in respect of the property currently amounts to R10 969-47 per month. This amount includes the monthly bond instalment of R10 178-14 and the insurance premium of R791-33 (“the bond instalments”); and

12.2 The municipal account to the Thaba Chweu Local Municipality timeously, in full and/or at all. The municipal account is in arrears with an amount of R9 441-52 as of 31 August 2022. The property is serviced with a pre-paid electricity meter and the Respondent purchases electricity on a

pre-paid basis, which purchases do not reflect on the municipal property account.

[13] From the Standard Bank mortgage bond statement it is evident that the Respondent would often pay less than the monthly instalment or pay nothing at all. She would then pay large sums of money to settle arrears instalments but ultimately remained in arrears. These irregular payments and constant arrears on the home loan account prompted Standard Bank to refer this account to its collections department.

[14] The Applicant states that he would receive notifications from Standard Bank every time the Respondent fell into arrears with the mortgage bond instalments. On numerous occasions, claims the Applicant, he made the Respondent aware to pay the bond instalments regularly to prevent possible legal proceedings being instituted against the parties. Notwithstanding these pleas, the Respondent still left the mortgage bond account to fall behind. The Respondent has made no payments whatsoever since April 2022. The last payment made to Standard Bank was on 8 March 2022 in the amount of R9 900.00.

[15] At the beginning of 2021 and following the Applicant raising complaints pertaining to the Respondent’s failure and/or refusal to pay the expenses associated with the property, the Respondent told the Applicant that she was planning to purchase the Applicant’s undivided half share in the property. The parties then agreed that she would have until 30 June 2021 to make an acceptable offer to the Applicant. The date came and passed without the Respondent coming forth with any offer. She continued to occupy the property.

[16] The defaults to Standard Bank and the municipality continued unabated. When this persisted, The Applicant instructed his erstwhile Attorneys, Jacobs Attorneys, to address correspondence to the Respondent, which they did on 2 August 2021 advising her:

16.1 Of her failure to pay the bond instalments and municipal accounts;

16.2 That her conduct affected his credit rating;

16.3 That her conduct activated the repossession of the property and the

consequences thereof;

16.4 That the Applicant intended to enforce clause 3.2 of the settlement

agreement;

16.5 That she was requested to co-operate to ensure that the property could be

marketed;

16.6 Payments of arrears owing to Standard Bank and Thaba Chweu Local

Municipality were demanded.

[17] The Respondent failed to reply to this letter but temporarily reverted to the adherence of the terms of the verbal agreement. She brought the arrears up to date and also paid what was due to Standard Bank. In consequence, the Applicant saw no need to proceed to market and sell the immovable property. The Respondent, however, soon fell into arrears with her monthly instalments for December 2021 and January 2022. She remained in arrears with the municipal accounts.

[18] In February 2022, the Respondent paid an amount of R15 000.00 to Standard Bank. Again, on 8 March 2022, she followed with another payment of R9 900.00. These payments were not adequate to cover the monthly instalments and the arrears on the home loan account at the time. The Respondent has since the payment of 8 March 2022 been in arrears with the mortgage bond. The municipality bills too remain in arrears and she never took any steps to settle the amount owed.

[19] Confronted with the Respondent’s continued failure to pay the monthly instalments, Standard Bank handed the home loan account over to its debt collection agents. On 6 July 2022, 12 July 2022, 20 July 2022 and 4 August 2022, Standard Bank advised the parties by email and/or SMS messages of the arrears on this account. The essence of the contents of the communication to the parties is that their home loan account was in arrears with an amount of R57 190.56. Standard Bank made the parties aware of the options to address this issue and, among others, to settle the arrears.

[20] The threat of Standard Bank instituting legal proceedings for the repossession of the property if no payment was received became very tangible. The Applicant discussed how the arrears have made the sale of the property inexorable and the risks attendant thereupon if they chose to retain it. The Applicant also told the Respondent that he had secured a purchaser for the property but she informed him that the buyer was not suitable and that she could not simply be forced out of the property without her consent.

[21] Noting that the Respondent would not settle the mortgage bond arrears or the municipal account and that she was steadfast on refusing to sell, the Applicant obtained a personal loan on 5 August 2022 to settle the entire arrears with Standard Bank in the amount of R57 190.56. Thereafter, the Applicant assured Standard Bank that he would adhere to effecting payment of the monthly installments. Additionally, the Applicant paid the most recent bond instalments of R10 970.00 each on 16 August 2022 and 6 September 2022 respectively.

[22] The potential purchaser secured by the Applicant has offered an amount of R1 800 000.00 for the property. This is approximately R800 000.00 and R900 000.00 more than what is outstanding on the mortgage bond. There is equity in the property if sold privately, which may not be the case if the property is sold on auction by Standard Bank.

ARGUMENTS ADVANCED

BY THE PARTIES

[23] The Respondent agrees that the factual background is largely common cause except that she alleges additional terms to the verbal agreement, which she says were either express or tacit or implied. Among these were that there was an amendment or a new verbal agreement was concluded or that there was an understanding.

[24] The amendment and / or new verbal agreement and / or understanding were / was firstly, that because the Applicant was indebted to her in the amount of approximately R250 000.00, the Applicant would pay the expenses associated with the property in the event that she could not do so. Secondly, she and the minor child would be allowed to reside in the property indefinitely.

[25] Additionally, she argued that contrary to the Applicant’s allegation, he did not clear all the costs associated with the property when he vacated. In essence this matter, she said, cannot be resolved on these papers because of the existence of disputes of fact.

[26] Lastly, the Respondent argued that these proceedings were practically proceedings to have her ejected from the property without following procedure as laid down in the prevention of Illegal Eviction Act, 19 of 1998 (the PIE Act”). Her argument in this respect, properly construed, is that the Applicant ought to comply with the PIE Act to have her out of the immovable property.

[27] Conversely, the Applicant contends that the disputes of fact raised by the Respondent are contrived. He rejected the Respondent’s assertion that he was inspired to conclude the agreement with the Respondent to take over the property expenses because he was indebted to her in the amount of approximately R250 000.00. The fact of the matter is that he could not afford to have his creditworthiness name disgraced in this manner. He flatly denied ever being indebted to the Respondent in any amount whatsoever.

[28] He was not as categorical that he had cleared all the costs associated with the property before he vacated. His attitude and counter argument was that assuming that such was correct, the amount proved to have been outstanding could easily be set-off by his share of the equity post the sale of the property. The issue of disputes of fact was fabricated and the Court should see it for what it truly is.

[29] He struggled to perceive these proceedings as an attempt to illegally evict the Respondent from the property. These proceedings, he said, are simply to ensure that the parties implemented the provisions of the court order that was granted on 22 February 2019.

ISSUES

[30] I agree with the Applicant that the issues to be determined by this Court are:

30.1 Whether or not there arises a real and genuine dispute of fact, to the extent

that this matter cannot be adjudicated on application;

30.2 Whether or not the agreement (incorporated into the Court Order) can be

enforced;

30.3 Whether or not the verbal agreement was lawfully cancelled;

30.4 Whether or not these proceedings are tantamount to eviction proceedings;

and

30.5 Whether or not the Respondent can apply set-off in these proceedings.

LEGAL FRAMEWORK AND

APPLICATION

DISPUTES OF FACT

[31] To the extent that the Respondent alleges that there are genuine disputes of fact in this matter such that it cannot be adjudicated under motion proceedings, it is necessary to refer to the case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd [1] where the manner in which disputes of fact can arise was described. Some of these are:

31.1 When the respondent denies all the material allegations made by the various deponents on the applicant’s behalf, and produces or will produce, positive evidence by deponents or witnesses to the contrary. He may have witnesses who are not presently available or who, though adverse to making an affidavit, would give evidence viva voce if subpoenaed;

31.2 When the respondent admits the applicant’s affidavit evidence but alleges other facts which the applicant disputes;

31.3 When the respondent concedes that he has no knowledge of the main facts stated by the applicant, but denies them, putting the applicant to the proof and himself gives or proposes to give evidence to show that the applicants and his deponents are biased and untruthful or otherwise unreliable, and that certain facts upon which the applicant relies to prove the main facts are untrue.

[32] Here the Respondent admits the terms of the verbal agreement but alleges that there was an additional term, alternatively a new verbal agreement concluded, further alternatively an understanding that Applicant would pay the expenses associated with the property, should she be unable to do so. The Applicant would take over the payments, she stated, because he is indebted to her in the sum estimated at R250 000.00. The disputes of fact comes into existence because the Applicant denies the additional term.

[33] At Para 12 of Wightman v Headfour (Pty) Ltd[2], the court restated the general rule as follows:

“Recognising that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must in the event of conflict, accept the version set up by his opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C.”

[34] From the latter part of the paragraph quoted above, it is manifest that a disputes of fact does not come into being by the mere say-so of a party. It is thus, necessary to first investigate whether or not such a dispute is not fictitious. In the case of Soffiantini v Mould[3], the Court stated the following:

“If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to Court on motion, then motion proceedings are worthless, for a respondent can always defeat or delay a petitioner by such a device. It is necessary to make a robust, common-sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over- fastidious approach to a dispute raised in affidavits.”

[35] The allegation that the Applicant owes the Respondent an amount of plus minus R250 000.00 requires closer scrutiny. The allegation by the Applicant that he advised the Respondent whenever Standard Bank alerted him that the mortgage bond account was in arrears is not denied by the Respondent. On the contrary, there is even proof that she replied to the messages sent to her by the Applicant stating that she would attend to the correction of the situation. This she endeavoured to do until her last installment in March 2022 when she could not pay anymore.

[36] The Respondent’s silence when told about the arrears ought to speak volumes. A person ensnared in such a situation, one would expect, would have demanded payment of the amount owed so that she could settle Standard Bank. Moreover, it is extraordinary that she does not even reveal how the Applicant came to be indebted to her in the amount that she claims from him. There is not even one occasion, other than in her papers, where she has demanded or threatened institution of legal proceedings for the recovery of the amount due to her by the Applicant. For this reason, this Court regards the allegation as bald and made solely to create fictitious disputes of fact. Accordingly, I hold that there was never any amount owed to her by the Applicant.

[37] I turn now to the amount that the Respondent claims were still owing to Standard Bank and / or the Municipality when the Applicant vacated the property on 15 November 2019. A situation where a party would emerge from the sale owing the other was anticipated. Clause 3.2 of the agreement pertinently addresses that issue by prescribing that the amount owed by such party would be deducted from his or her 50% of the proceeds of the sale. This is what the Applicant has proposed and this Court regards it as a valuable suggestion.

IS THE AGREEMENT

THAT HAS BEEN INCORPORATED INTO THE COURT ORDER ENFORCEABLE

[38] I note that this is an issue that was addressed by the Applicant but one that was not raised by the Respondent. I therefore do not intend delving extensively into it. Regarding the practice of incorporating settlement agreement into Court orders in divorce matters, the Applicant referred me to the matter of Thutha v Thutha[4] where the Court held that issues such as maintenance and custody should be expressly dealt with in an order of Court, and other

incidental matters arising from the divorce such as division of the joint estate, proprietary rights and the like should best be left in the terms of a settlement agreement upon which an aggrieved party may sue, rather than incorporating those issues into an order of Court.

[39] The Thutha case supra was, however, overturned by the full bench of the same Court in PL v YL [5] where the Court held that the practice of incorporating settlement agreements into divorce orders is salutary and in line with judicial

policy. The Court found that the contrary view expressed in Thutha v Thutha, namely that the practice of incorporation should be eschewed since an agreement should only be made an order of Court if the parties could on its strength proceed directly to execution “without redress to further litigation” — is unduly inflexible and restrictive, not only of the powers of the Court under s 7(1) of the Divorce Act, but also in relation to the inherent power of the Court to compel the observance of its own orders.

[40] I agree with the Applicant that the purpose of divorcing parties’ entering into an agreement of settlement is to end litigation or to prevent future litigation in respect to the issues between the parties, whether personal or proprietary. An agreement of settlement in a divorce action, entered into at any stage, is, therefore, a transactio or compromise. See, Gollach v Gomperts (1967) (Pty) Ltd v Universal Mills and Produce Co (Pty) and Others [6].

[41] In the matter of Blou Bul Boorkontrakteurs v McLachlan [7] it was held that a transactio is subject to the common-law principles applicable to contracts in general, which implies that the agreement may be enforced by any party thereto or resiled from by any party on the same grounds as those applicable to agreements in general. To enforce an agreement reached during litigation, the Court should be requested to make such agreement an order of Court. This is simply a matter of annexing a written agreement to the pleadings and seeking an order that such agreement be incorporated in the order of divorce. In this instance therefore the settlement agreement was indeed made an order of Court.

[42] An agreement that has been made an order of Court cannot be a hindrance to any party seeking not to be bound thereby on the ground of the common-law grounds available in terms of the law of contract. See, Rowe v Rowe [8]. It is trite that it is possible to resile from a settlement agreement on the grounds of fraud, iustus error, impossibility of performance, or lack of consensus. Outside of the allegation of an additional terms, which I have already found to be contrived, the Respondent makes no cogent reasons why the agreement should not be observed. As such the order incorporating the agreement stands.

WHETHER OR NOT THE

VERBAL AGREEMENT WAS LAWFULLY CANCELLED

[43] It is fairly apparent that the terms of the verbal agreement are indeed common cause save of course for the additional term alleged by the Respondent, which new term is denied by the Applicant. Understandably, the verbal agreement does not have ‘a no variation except in writing clause’, which means that it could be altered even if not reduced to writing for as long as the contravention committed is satisfactorily grave that could lead to a legitimate reason for such cancellation.

[44] An infringement will be regarded as sufficiently serious to justify cancellation if:

44.1 It goes to the root of the contract; or

44.2 It is so serious that the creditor would probably not have concluded contract had he/she foreseen the breach;

44.3 The debtor must have failed to perform a vital part of his/her obligations or an “essential” or “material” term of the contract; conversely, the right to rescind is excluded if there has been “substantial performance” of the contract. See, Van der Merwe et al Contract, General Principles 1st ed (1993) at 255.

[45] In Singh v McCarthy Retail Ltd t/a Mcintosh Motors[9], it was held that:

“[15] I perceive the correct approach to be as follows: The test, whether the innocent party is entitled to cancel the contract because of malperformance by the other, in the absence of a lex commissoria, entails a value judgment by the Court. It is, essentially, a balancing of competing interests - that of the innocent party claiming rescission and that of the party who committed the breach. The ultimate criterion must be one of treating both parties, under the circumstances, fairly, bearing in mind that rescission, rather than specific performance or damages, is the more radical remedy. Is the breach so serious that it is fair to allow the innocent party to cancel the contract and undo all its consequences?”

[46] As in Singh supra, the issue is whether or not the breach in this matter is so serious that it is reasonable to allow the Applicant, the innocent party, to cancel the verbal agreement and reverse all its consequences. The basis of the verbal agreement was that the Respondent would adhere to the payment of the expenses mentioned in sub-paragraphs 10.3.1 to 10.3.3 supra. A breach of this term is so central such that its contravention would qualify it to be adequately serious and going to the root of the agreement. It is such that its gravity would probably have persuaded the Applicant not to conclude the verbal agreement had he anticipated the breach.

[47] The Respondent has failed to perform in terms of the verbal agreement and persists that her obligations be carried out by the Applicant even though he is not enjoying occupation of the property. This is clearly untenable as the Applicant is the innocent party. Besides, he has stated that he has other financial commitments to which he is required to channel funds. It will be fair and just that the property be sold and the proceeds of the sale be equally shared. Against that background, this Court is constrained to confirm the cancellation of the verbal agreement.

ARE THESE

PROCEEDINGS TANTAMOUNT TO EVICTION PROCEEDINGS

[48] Here the Respondent asserted that these current proceedings amount to an application to evict her. How the Respondent leaps to that conclusion leaves this Court bewildered. The point is that this application has to do with the enforcement of a Court order granted on 22 February 2019. This is radically different from eviction in terms of the PIE Act. I agree with the Applicant that eviction proceedings may ensue once the property has been sold and the party in occupation refuses to relinquish possession. For these reasons the argument that this application is a disguised eviction must be rejected.

WHETHER OR NOT SET-OFF FINDS APPLICATION

[49] The Respondent, in a rather convoluted manner, seems to suggests that set-off of the amount allegedly owed to her by the Applicant is possible against the amount expended by the Applicant towards the costs of the property. The prerequisites for the application of a set-off are that:

49.1 The debts must exist between the same 2 persons in the same capacities;

49.2 The debts must be the same in nature;

49.3 Both debts must be due and enforceable; and

49.4 Both debts must be liquid.

[50] The Applicant has asserted that the set-off that the Respondent seeks to apply does not fit into the mold of the requirements described above because firstly, in casu the Applicant claims enforcement of a Court order and not payment of a sum of money. Secondly, to the extent that the Applicant seeks enforcement of the Court order while the Respondent ostensibly pursues compliance of a contractual obligation, the debts are not the same in nature. Thirdly, the debts are not liquid.

[51] The requirements for the set-off to find application are conjunctive. Accordingly, if anyone of those requirements are not met, set-off will be off the table. In this instance, three of the requirements are not present. In the circumstances, it should suffice to state that there is no merit to the set-off argument and it is refused.

COSTS

[52] There is no reason to depart from the general rule that costs follow result. The Applicant, as the triumphant party in this litigation should be awarded costs. The question here, however, is the scale at which those costs should be. I do not think that there is anything serious that would warrant mulcting the Respondent with punitive costs.

[53] In the result, the application succeeds and I make the following order:

1. Cancellation of the verbal agreement concluded by the parties during November 2019 is confirmed;

2. The Respondent is ordered to:

2.1 sign any and all documentation necessary to give effect to the sale of the property described as:

PORTION 84 OF ERF 2[...] L[...] E[...] [...] TOWNSHIP, REGISTRATION DIVISION J.T., PROVINCE OF MPUMALANGA, MEASURING 990 (NINE HUNDRED AND NINETY) SQUARE METERS, HELD BY DEED OF TRANSFER T[...] for an amount of R1 800 000-00 within 7 (seven) days of being presented with the Deed of Sale; and

2.2 sign any and all other documentation necessary to give effect to the transfer of the property described in paragraph 2.1 above, within 7 (seven) days of being presented with the necessary documentation.

3. Should the Respondent fail to comply with the provisions of prayer 2, inclusive of prayers 2.1 and 2.2 above, that the Sheriff of the High Court of South Africa, L[...] be authorised to sign any and all documentation necessary to give effect to the sale and subsequent transfer of the property described in prayers 2.1 and 2.2 above and upon presentation thereof.

4. That the Respondent be ordered to give access to the property to:

4.1 the draughtsman appointed by Applicant to update the existing building plans and/or to draft new building plans, depending on what might be required, to be submitted to the Local Municipality for approval and in compliance with the Thaba Chweu Local Municipality Spatial Planning and Land Use Management By-Laws; and/or

4.2 the valuer appointed by the financial institution where the prospective purchaser obtained a loan from, if necessary, and to give effect to the transfer of the property into the name of the prospective purchaser, at a time to be arranged between Applicant and Respondent.

5. The Respondent is directed to pay the costs of the Applicant.

B A MASHILE

JUDGE OF THE HIGH

COURT OF SOUTH AFRICA

MPUMALANGA DIVISION,

MBOMBELA

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be May 2023 at 10:00.

APPEARANCES:

Counsel for the Applicant: Adv HJ Basson Instructed by: Yvette Labuschagne Attorneys Counsel for the Respondent: Adv SC Neuland Instructed by: Du Preez (Morne) Attorneys Date of Judgment: 15 May 2023

[1] 1949 (3) SA 1155 (T)

[2] (66/2007) [2008] ZASCA 6 (10 March 2008)

[3] 1956 (4) SA 150 (E) at 154G–H

[4]2008 (3) SA 494 (TKH)

[5] 2013 (6) SA 28 (ECD)

[6] 1978 (1) SA 914 (A)

[7] 1991 (4) SA 283 (T)

[8] 1997 (4) SA 160 (SCA)

[9][2000] ZASCA 129; 2000 (4) SA 795 at par [12] - [15]