Body Corporate Ruby Court v Boyce

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Yende AJ
• Judgment Date: 07 September 2023
• Citation: 2023 JDR 3403 (GP)
• Hearing Date: 31 May 2023
• Docket Number: 55013/2020
• Court: Gauteng Division, Pretoria

Yende AJ:

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Yende AJ

Introduction

[1]

This is an opposed application to declare the respondent’s immovable property specially executable with the Reserve price of R500,000,00.

Factual matrix

[2]

The respondent is the owner of an immovable property being a Flat [. .] of the Sectional Title Scheme SS RUBY COURT, Scheme Number [. .], situated at [. .] Silver Bell Street, Eco Park, Highveld Ext 51, in the extent, 82 square metres, held under Deed of Transfer No, ST7 [. .] (‘the Property’). [1] There is a bond registered in favour of Standard Bank LTD over the property in the amount of R648 000.00.

[3]

By virtue of owning the said immovable property within the Sectional Title Scheme SS Ruby Court, the respondent is liable to make contributions towards the applicant who is THE BODY CORPORATE RUBY COURT, a Body Corporate duly registered by the Registrar of Deeds, Pretoria, in terms of section 36 of the Sectional Titles Act (Act 95 of 1986 under the Scheme Number [. . .] and with its chosen Domicilium citandi et executandi at Pretoria le Roux Inc, Hilda Chambers, [. . . . .] Pretoria.

[4]

In terms of a resolution taken by the members of the applicant each year at a General meeting, the respondent is liable for levies payable in respect of the unit in

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Yende AJ

terms of the said Act, which amount is payable to the applicant on the 1st day of every month, in advance, as well as interest on the arrear levies at the rate determined from time to time by the trustees of the applicant in terms of Section 37(2) of the Sectional Tittle Act, 95 of 1986.

[5]

As a result of the respondent’s failure to make regular monthly payments towards the above mentioned levies, contributions, and charges, and after demanding such payments from the respondent, the applicant issued summons against the respondent.

[6]

Summons under the above-mentioned case number was issued and served on the respondent at his Domicilium address. The return of service states that the summons was served on 26th October 2020 by affixing same to the principal door. The tenant, Mrs N Xulu, did not want to accept the service and upon various attempts by the sheriff to contact the respondent was unsuccessful.

[7]

In terms of Section 4(5) of the Sectional Title Schemes Management Act, 2011 (Act no 8 of 2011), the Domicilium citandi et executandi of each owner shall be the address of the section registered in his/her name and the owner is entitled to change his/her said address within written notice to the Body Corporate and no such notification was received from the respondent.

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Yende AJ

[8]

The respondent failed to enter appearance to defend the action despite proper service of the summons. The applicant obtain default judgment against the respondent on or about 1 June 2021 for the amount of R 40 651.01 (Forty Thousand Six Hundred and Fifty- One Rand and One Cent). The amount has increased to R 73 838.17 (Seventy- Three Thousand Eight Hundred and Thirty- Eight Rand and Seventeen Cents) during November 2021 and has currently increased to a R111 775. 95 (One Hundred and Eleven Thousand Seven Hundred and Seventy -Five Rand and Ninety- Five Cents).

[9]

A Warrant of Execution was then issued against the movable property of the respondent and same was served at the Domicilium address of the respondent. The Sheriff of the Court on the 8th of July 2021 found the respondent at the Unit. The respondent indicated to the Sheriff that he does not own movable or immovable property and the Sheriff could not make an attachment as the goods in the unit were not sufficient to satisfy the Warrant.

[10]

The Sheriff provided a Nulla Bona Return, and the respondent signed the original Warrant. The respondent arranged in October 2020 to make payments of R 3000.00 per month over and above the normal monthly levy and the arrangement was accepted by the applicant. However, the respondent did not make payment as agreed with the applicant on the 18th December 2020. The applicant then advised the respondent that due to his failure to comply with his own payment arrangement it will proceed with the legal action and the respondent agreed.

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Yende AJ

[11]

The applicant now seeks an order declaring the respondent’s immovable property specially executable.

[12]

It has been positively proven that the respondent is, however, the owner of another immovable property being Unit 134 in the Section Title Scheme SS Woodpecker, Schem No[. . . .], held under Deed of Transfer ST [. . .] [2] .

[13]

The applicant contends that the respondent immovable property be specially executable, and a reserve price of R 500 000.00 be set by the court.

[14]

The respondent fell into arrears with the applicant Body Corporate levies due to his divorce from his wife and his financial position was constrained and affected by the Covid 19 pandemic. The respondent avers that he attempted to expunge his arrears but due to the economic climate he was unable to do so.

[15]

The respondent contends that his immovable property should not be declared specially executable instead he must be given a 6 (six) months reprieve because of the fact that he hold a BCom Accounting degree and an MBA from Wits University and that he is a final semester law student who is left with 2 months to finish his studies and has already secured tentative position as a candidate legal...