Dennegeur Estate Huiseienaarsvereniging v Zonnekus Mansion (Edms) Bpk
| Jurisdiction | South Africa |
| Judge | K Pillay AJ |
| Judgment Date | 08 May 2014 |
| Docket Number | 2024/2011 |
| Court | Western Cape High Court, Cape Town |
| Hearing Date | 06 February 2014 |
| Citation | 2014 JDR 0956 (WCC) |
Pillay AJ:
INTRODUCTION
This is an application for the Respondent's provisional liquidation.
The matter has a long history with proceedings having been instituted in February 2011.
THE PAPERS FILED OF RECORD
The application was instituted on the basis that the Respondent (which owns certain property at Dennegeur Estate) is indebted to the Applicant (which is the
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Dennegeur Estate Homeowner's Association) in an amount of R 103 708.90. [1] The debt was initially alleged to include an amount for arrear levies, penalty levies and legal fees, which indebtedness was alleged to be due, owing and payable.
In its answering affidavit, the Respondent avers inter alia as follows:
The actual monthly levy in respect of which Applicant purports to hold Respondent liable was R 456.00 from March 2008 and R 513.00 per month from September 2008 to the present. The monthly levy was paid by Respondent up to and including October 2008.
In September 2008 a charge of R 6 928.35 for rubble removal was raised against Respondent. Respondent was not prepared to pay this amount.
In June 2009 Applicant introduced a penalty levy of R 2 565.00. Interest, administration fees and other costs were also levied against Respondent. Respondent was not prepared to pay these amount (sic) and disputes its liability to do so.
In March 2009, Applicant, as Plaintiff, purported to cause summons to be issued out of the Somerset West Magistrates' Court against Respondent, as Defendant, in respect of the selfsame cause of action on which it relies for its alleged claim against Respondent in this application (the amount of the claim was then less). ...
Respondent, as Defendant, instructed attorneys to defend the aforesaid action ("the action") and a plea was served and filed in June 2009 in which Respondent set out its defence. ...
As appears from the Plea, Respondent does not accept that Applicant exists and requires Applicant to prove all technical and procedural aspects relating to the charges levied against Respondent.
Without admitting liability for the standard normal levy, Respondent was prepared on numerous occasions to pay same in settlement of the action and Applicant's alleged claim. Respondent has however always disputed the liability of all the charges levied.
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Applicant has not withdrawn the other action.
I deny that Applicant is entitled to levy the charges which have been levied by it, especially those over and above the standard levy. There are various factors in this regard:
Respondent disputes Applicant's existence.
Respondent never agreed to any Homeowner's Association Constitution or Development Control Parameters (as all homeowners were requested to do in writing).
Respondent disputes Applicant's authority to impose any of the charges sought to be imposed by it.
Respondent disputes any resolution in respect of the charges made against it.
Respondent disputes the amount of the penalty levy. This would have to be determined. The amount is therefore not liquidated.
Even were it to be entitled to levy further charges over and above the standard levy, these further charges would be a penalty which is not a liquidated amount and would have been subject to dispute by Respondent.
Applicant's alleged claim was being dealt with in the action. I am advised that a trial is the proper forum for the determination thereof and that liquidation applications are not the correct forum for the resolution of the dispute which exists between the parties herein. This will be dealt with further in legal argument to the extent necessary."
(Own Emphasis)
In addition, the Respondent provided some indication of the value of its immovable property, asserted that its movable assets are readily realisable "in an amount way in excess of Applicant's claim" and referred to the quantum of its long term liabilities.
In its Replying Affidavit, the Applicant stated inter alia as follows:
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In June 2009 word 'n sogenaamde "penalty levy" gehef van R 2 565.00. Hierdie heffing is ingestel weens die feit that die Respondent weens wanbetaling en ander problem wat dit skep, a groot administratiewe las op die Applikant plaas. In terme van die Applicant se konstitutsie is dit geregtig om hierdie heffing in te stel. Weereens is die enigste verweer wat die Respondent hierteen opwerp dat dit nie bereid was om die bedrag te betaal nie.
Die primere verweer wat die Respondent opwerp, word vervat in paragrawe 11 tot 14 me Cameron se verklaring. Die grondslag van hierdie verweer is dat die Respondent nie aanwaar dat die Applikant bestaan nie. Geen feitelike en/of regsbasis word verskaf vir hierdie bewering nie end sky dit bloot 'n gefingeerde en uit die lug gegrypte bewering te wees."
The replying affidavit was filed on 19 May 2011. On 2 December 2011, the Respondent filed a further affidavit. According to the further affidavit, the Respondent paid "under protest" the normal levy and the rubble removal portions of the Applicant's claim "in order to remove them from the arena of dispute"; this notwithstanding, it persists in disputing its liability to pay these amounts. The further affidavit also states that the Respondent has made available cash funds in an amount of R 79 000.00, which is the quantum of the balance of the claim.
On 3 February 2014 (two Court days before the hearing of this matter), the Applicant filed a supplementary affidavit. The following aspects of that affidavit warrant reference:
A printout of the Applicant's detailed ledger for the period 1 March 2013 to 28 February 2014 was attached which reflected the Respondent's indebtedness to the Applicant in respect of various levies, penalty charges and fees levied against it by the Applicant in the performance
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of its responsibilities in terms of section 2 of its Constitution in an amount of R 416 406.83.
A copy of the Applicant's Constitution was attached in confirmation of its existence and locus standi.
It was contended that the institution of these proceedings was authorised by the Applicant's Executive Committee and had the support of its members. Certain minutes of the Applicant's annual general meetings were attached in this regard.
A copy of the Respondent's title deed to Erf 13421 Somerset West was attached.
When this matter came before me on 6 February 2014, I granted an Order in terms whereof the Respondent was afforded an opportunity to answer to the Applicant's further affidavit. Both parties were also afforded the opportunity to file supplementary heads of argument.
Pursuant to my Order of 6 February 2014, the Respondent filed a further affidavit on 24 February 2014. In its further affidavit, the Respondent contended as follows:
The print out of the Applicant's detailed ledger constitutes hearsay evidence in that it was prepared by an entity styled Micsam Management and is presented in the absence of a confirmatory affidavit by the person responsible for its preparation. To this extent,
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the Respondent seeks to have the print out (as well as the supporting averment in the affidavit) struck out.
In the alternative, it is alleged that the print out is any event "nonsensical and ultimately of no use to this Honourable Court as a basis for establishing the Respondent's alleged indebtedness" towards the Applicant. In this regard it is averred that the print out commences with an opening balance as at 1 March 2013 in an amount of R 312 604.666 without any indication of the manner in which this balance had been arrived at. Furthermore, it is contended that the legal fees reflected in the print out are not chargeable to the Respondent's account.
The print out does not indicate on which basis the interest component of the amount claimed from the Respondent has been calculated, specifically in respect of the base amount and the interest rate employed.
The Applicant's "true case" on its version is that the Respondent's alleged indebtedness in respect of "ordinary monthly levies payable" over the book year in question, in the sum of R 6 600.00, which is slightly more than 1.5% of the total amount of R 416 406.83. In this regard the Respondent contends that it is eminently able to make payment of these levies and in fact did pay these levies in full. In amplification, it is further contended that the Respondent made payments totalling R 6 550.00 over the period in question which is just
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R 50 short of the "normal levies" claimed from the Respondent in that period. These payments were discontinued by the Respondent since September 2013.
Despite clause 10 of the Constitution, the Applicant has failed to present any documentary or other evidence as proof that the correct procedure was employed in the imposition of levies.
THE ISSUES IN DISPUTE
In the course of the affidavits that have been filed by both parties the issues have narrowed substantially in that:
The Respondent no longer disputes Applicant's existence.
The Respondent no longer contends that it had never agreed to any Homeowner's Association Constitution or Development Control Parameters (as all homeowners were requested to do in writing). It accepts that it is bound by the following condition in the title deed: "Subject further to the following condition contained in the Constitution of the Dennegeur Home Owner's Association, imposed in Deed of Transfer T 102878/2002 by the Helderberg Municipality in terms of section 29 of Ordinance 15 of 1985 upon approval of the subdivision of Erf 13351...
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