Hume Housing v Hibiscus Coast Municipality
| Jurisdiction | South Africa |
| Judge | Chili J, Kruger J and Madondo J |
| Court | KwaZulu-Natal Division, Pietermaritzburg |
| Year | 2015 |
| Citation | 2015 JDR 0721 (KZP) |
| Docket Number | AR 203/14 |
Chili, J
This matter serves before us as an appeal against the order of the court a quo upholding a plea "rei judicata" and dismissing the appellant's claim with costs.
Background
The appellant was a property developer. It was common cause that it owned properties described as lots Erven 2155 to 2164, 2170 to 2191 and 2197 to 2208 at Gamalakhe situated within the respondent's Municipal jurisdiction.
2015 JDR 0721 p2
Chili, J
The appellant instituted application proceedings against the 1st respondent and others under Case no. 14041/2010 whereby it sought an order ejecting unlawful occupiers from properties referred to in para 2 above. The matter served before Vahed AJ (as he then was) who, after having heard counsel in argument, indicated the nature of the order he was disposed to granting and requested counsel to draft the order reflecting his intention. He thereafter granted an order in the following terms:
It is recorded that the terms of the order about to be made have been settled as amongst counsel but for the fact that the order is not going to be one by consent.
It is recorded that Attorneys Shepstone & Wylie and Mr Goddard appear for the 1st Respondent and the 5th to 38th Respondents.
That the 1st Respondent will acquire the properties referred to in the application, which are owned by the Applicant, once compensation determined as set out below has been paid. The 1st Respondent shall be entitled to effect transfer into its own name or into the name of its nominee(s).
That the compensation will be determined in accordance with S 12(1), 12(2) and 12(3) of Expropriation Act 63 of 1975.
That the applicant will be deliver [Sic] a summons and particulars of claim within 10 days. The 1st respondent will deliver a plea and counterclaim, if any, within 10 days thereafter, and the applicant a plea in reconvention and replication, if any within 10 days.
That the provisions of the Uniform Rules of Court will apply.
It is ordered that the respondent currently occupying the property will not be required to vacate, pending finalisation of the said proceedings.
For the purpose of the Act the date of Expropriation insofar as it requires to be defined for the purposes of that Act, in determining compensation, is 26th November 2010.
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Chili, J
That the Applicant shall not as from the date of this order, be liable for rates or taxed on the properties.
That the costs of today are reserved. All previously reserved costs orders, including those of today will be decided in the above proceedings.
That it is recorded that the 4th respondent has agreed to fund the acquisition in paragraph (1) above. Nothing herein will affect the applicant's right to receive payment from the 1st respondent.
That any amounts found payable by any party to the other, will be payable pari passu with the other".
Subsequent to the order of Vahed J, the appellant's attorneys (Knight Turner Inc.) forwarded a letter dated 18 December 2011 to the respondent's attorneys (Shepstone & Wylie Attorneys), proposing the appointment of property valuers Messrs Mills Fitchet, to act as experts and to determine compensation in accordance with the provisions of S12 (1) of the Expropriation Act 63 of 1975. This proposal was accepted by the respondent's attorneys by way of a letter dated 19 December 2011. Mills Fitchet prepared the valuation report in which it concluded that the total value of compensation payable for the properties as at 26 November 2010 was R 6 045 000, 00, comprising amounts of R 2 200 000,00, R 55 000,00 and R 3 790 000,00 in respect of land value, solatium and improvements on the properties, respectively. On 22 March 2012 the appellant's attorneys forwarded a copy of Mills Fitcher's valuation report to the respondent's attorneys accompanied by a request for payment into the appellant's attorneys trust account of R 6 045 000,00 plus VAT together with interest thereon at the rate of 15.5% from 26 November 2010 till date of payment. There was no response from the respondent's attorneys. The appellant's attorneys forwarded a follow up letter on 3 April 2011 to which the respondent's attorneys again did not respond.
In June 2012 the appellant approached the court for an order in the following terms:
2015 JDR 0721 p4
Chili, J
that the valuation report compiled by Mills Fitchet be made an order of...
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