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

 

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

Case number: 93393/2015

Date: 2/12/2015

In the matter between:

 

ARNOLD FRANCOIS PIETERSE

APPLICANT

 

And

 

BELINDA JACOBA PIETERSE

FIRST RESPONDENT

ZELDA KARELSEN N.O

SECOND RESPONDENT

THE DEEDS OFFICE

THIRD RESPONDENT

FIRST NATIONAL BANK

FOURTH RESPONDENT

JAMES HENRY LE ROUX

FIFTH RESPONDENT

MARIA ELIZABETH LE ROUX

SIXTH RESPONDENT

JUDGMENT

PRETORIUS J,

(1) The applicant and respondent were married, but the marriage relationship was dissolved on 4 September 2015.  The deed of settlement between the parties was made an order of court.

(2) In terms of the settlement agreement it was agreed that the respondent in the present application has a 100% ownership of the immovable property situated at […], Garsfontein, Pretoria.  The applicant resides in the property and pays the monthly bond.  The parties agreed to market the property, with the purpose of selling it for profit.  The agreement entailed, inter alia, agreeing to a selling price and that thereafter the parties would:

“…thereafter consider all reasonable offers to purchase the property and on condition that both parties agree in writing to the selling price, which agreement shall not unreasonably be withheld, the Defendant shall take all necessary steps to ensure that the sale and transfer of the immovable property is completed”

(3) On 22 July 2015 the applicant and respondent agreed to market the property for R1 600 000.00, where after, if the property was not successfully sold for that amount within three months, the price would be lowered to R1 400 000.00.  The fifth and sixth respondents initially submitted an offer for buying the property for R1 400 000.00, but as they did not qualify for a 100% loan, the respondent did unilaterally and without obtaining the respondent’s written consent enter into a sale agreement with the fifth and sixth respondents for the sale of the property for R1 250 000.00 on 13 November 2015.

(4) On 16 November 2015 the applicant’s attorney informed the respondent that the decreased selling price was not acceptable.  The respondent relies on a statement made on 12 November by the applicant to the respondent’s attorney.  It is quite clear from the statement that the applicant was angry and emotional and in any event there was no consent in writing as stipulated in the settlement agreement.

(5) It is so that the respondent will be able to affect transfer without the applicant’s consent, as she is the owner of the property.  This will lead to the applicant suffering a loss, as according to the settlement agreement the amount of R350 000.00 will be paid to the respondent, irrespective of the selling price of the property.  The applicant is thus the only party that will suffer due to the decrease of the price.

(6) It is quite clear that the respondent has breached the settlement agreement, which is a contract and has been made an order of court.  In these circumstances I find the matter to be urgent.  On 22 July 2015 the applicant suggested that the property be marketed for three months for R1 600 000.00 after which the price will be reduced to R1 400 000.00.  The date for marketing the house for three months, expired on 22 October 2015.  Thereafter the house had to be marketed for R1 400 000.00.  This suggestion was accepted by the respondent.

(7) I find that the respondent did not adhere to the provisions of the settlement agreement and therefor no valid agreement could have been entered into with the fifth and sixth respondents.

(8) Due to the respondent’s vexatious and wilful conduct I can find no reason for the applicant to be mulcted with costs.  Therefor the respondent is liable for the costs of the applicant.

(9) I make the following order:

1. The first respondent is prohibited from continuing with the sale of the immovable property known as […], Garsfontein, Pretoria, Gauteng for the amount of R1 250 000.00 as agreed in writing between the first respondent, fifth respondent and sixth respondent.

2. The third respondent is prohibited from transferring the immovable property known as […], Garsfontein, Pretoria, Gauteng without the written consent of the applicant.

3. The order in paragraph 1 above is of full force and effect until such time that the first respondent comply with the terms of the settlement agreement which was made an order of this court under case number 63378/2013 on the 4^th of September 2015 attached to the applicant’s founding affidavit as annexure “AFP2”.

4. The offer to purchase entered into between the first, fifth and sixth respondents entered into on 12 November 2015 and 13 November 2015 respectively for the purchase price of R1 250 000.00 and attached to the applicant’s founding affidavit as annexure “AFP4” is declared null and void.

5. The first respondent is ordered to pay the costs of this application on a scale as between attorney and client.

6. The counter-application is postponed sine die.

 

_____________________

Judge C Pretorius

 

Case number: 93393/2015

Matter heard on: 1 December 2015 

For the Applicant: Adv L van der Westhuizen

Instructed by: Van Schalkwyk Attorneys

For the Respondent:

Instructed by: DF Ossthuizen Inc

Date of Judgment:

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