Mortgage granted on house with ********** Plans and Occupancy Cert

<p>HIGH COURT OF SOUTH AFRICA</p> <p> </p> <p>KWAZULU-NATAL LOCAL DIVISION, DURBAN </p> <p> </p> <p> CASE NO. /2016</p> <p> </p> <p>In the matter between:</p> <p> </p> <p>GERALD DAVID FRANCIS First Applicant</p> <p> </p> <p>ODETTE HELEN FRANCIS Second Applicant</p> <p> </p> <p>and</p> <p>DALE ALEX VAN DER BYL First Respondent</p> <p> </p> <p>MICHELLE BRONWYN VAN DER BYL Second Respondent</p> <p> </p> <p>LOUIS MICHAEL JEROME Third Respondent</p> <p> </p> <p>ETHEKWINI MUNICIPALITY Fourth Respondent</p> <p> </p> <p>________________________________________________________________</p> <p>FOUNDING AFFIDAVIT</p> <p>________________________________________________________________</p> <p>I, the undersigned; </p> <p> </p> <p> GERALD DAVID FRANCIS</p> <p> </p> <p>do hereby make oath and say that:</p> <p>1.</p> <p> </p> <p> </p> <p>I am:</p> <p> </p> <p> </p> <p>(a) a major male businessman and I reside at 68 Gladioli Street, Sonetke, Kuilsriver, Cape Town;</p> <p> </p> <p>(b) married to the second applicant in community of property. </p> <p>2.</p> <p> </p> <p>(a) The facts contained in this affidavit are, save where otherwise stated, within my own personal knowledge and are to the best of my knowledge and belief both true and correct.</p> <p> </p> <p>(b) Where the facts are not within my personal knowledge, they have been made known to me by the persons who have deposed to affidavits filed evenly herewith in support of this application.</p> <p> </p> <p>(c) Where I make legal submissions I do so on the strength of advice given to me by my legal representatives.</p> <p>(d) I shall refer herein to the Second Applicant as “my wife” and/or to myself and her as “we” and “us” and/or the “purchasers” and to the First and Second Respondents as the “sellers” where it is convenient to do so.</p> <p> </p> <p>THE PARTIES</p> <p>3.</p> <p> </p> <p>I am the First Applicant herein.</p> <p> </p> <p>4.</p> <p>The Second Applicant is ODETTE HELEN FRANCIS, a major female businesswoman who resides at 68 Gladioli Street, Sonetke, Kuilsriver, Cape Town.</p> <p> </p> <p> </p> <p>5.</p> <p>The First Respondent is DALE ALEX VAN DER BYL, an major male businessman, who resides at 54A Gladys Avenue, Glenfield, Auckland, New Zealand. </p> <p>6.</p> <p>The Second Respondent is MICHELLE BRONWYN VAN DER BYL, a major female teacher, who resides at 54A Gladys Avenue, Glenfield, Auckland, New Zealand.</p> <p> </p> <p> </p> <p>7.</p> <p>The Third Respondent is LOUIS MICHAEL JEROME, a major male building contractor and property developer who resides at 155 Maxwell Avenue, Bluff, Durban, KwaZulu-Natal.</p> <p> </p> <p>8.</p> <p>The Fourth Respondent is ETHEKWINI MUNICIPALITY, a metropolitan municipality established as such in terms of the Local Government: Municipal Structures Act No 117 of 1998, a body corporate capable of suing and being sued, and whose head office is situated at City Hall, Dr Pixley Kaseme (West) Street, Durban, and which has its Legal Services Department at 12th Floor Shell House, 221 Anton Lembede (Smith) Street, Durban, KwaZulu-Natal.</p> <p> </p> <p> </p> <p>NATURE OF APPLICATION</p> <p> </p> <p>9.</p> <p>I am making this affidavit in support of an application for multi-faceted relief against the First and Second Respondents set out as follows:</p> <p> </p> <p>(a) An Order directing the Sheriff to attach the First and Second Respondents’ right, title and interest in and to the immovable property described as Portion 12 Erf 300 Bluff having street address at 219 Marine Drive, Bluff, Durban, KwaZulu-Natal, such attachment to confirm the jurisdiction of this Honourable Court. </p> <p> </p> <p>(b) The attachment shall be subject to the condition that the said immovable property shall be released from attachment if security in a form and an amount approved by the Registrar, be given for the sum of R1 850 000.00 together with interest thereon at the rate of 10,25% per annum from 11 December 2015 to date of payment. </p> <p> </p> <p>(c) An Order authorizing the service of these proceedings on the First and Second Respondents by edictal citation in terms of Rule 5 of the Uniform Rules of this Honourable Court.</p> <p> </p> <p>JURISDICTION</p> <p>10.</p> <p>I am advised that this Honourable Court has jurisdiction to hear this application by reason of the following facts and circumstances:-</p> <p> </p> <p>(a) the agreement relating to the purchase and sale of the immovable property situated at 30 Knyff Road, Bluff was concluded by the parties at Durban; </p> <p> </p> <p>(b) the aforesaid immovable property is situated within the area of jurisdiction of the above Honourable Court;</p> <p> </p> <p>(c) the immovable property that is sought to be attached is situated within the area of jurisdiction of the Court.</p> <p> </p> <p>APPLICANTS’ CAUSE OF ACTION</p> <p> </p> <p>11.</p> <p>I have been advised that the usual practice is to issue a citation (which is the equivalent of a summons) together with an intendit (the equivalent of a declaration), which is then served simultaneously with the citation.</p> <p> </p> <p>12.</p> <p>I respectfully refer this Honourable Court to the cause of action which is more comprehensively described in Annexure “A” to the Notice of Motion to which this affidavit is attached.</p> <p> </p> <p> </p> <p>13.</p> <p>By reason of the facts and circumstances described more fully hereunder and the allegations set out in Annexure “A” to the Notice of Motion, I respectfully submit that the First and Second Respondents are indebted to us as follows:</p> <p> </p> <p> </p> <p>CLAIM A: (As against the First and Second Respondents only)</p> <p> </p> <p>(a) An Order:-</p> <p> </p> <p>(i) confirming the cancellation of the agreement of purchase and sale concluded by the parties at Durban on 20 August 2015.</p> <p> </p> <p>(ii) directing the First and Second Respondents to repay to the Applicants the sum of R1 550 000.00 (One Million Five Hundred and Fifty Thousand Rand) jointly and severally, the one paying the other to be absolved, against the transfer of the immovable property to the Respondents.</p> <p> </p> <p>(iii) directing the First and Second Respondents to pay the costs in respect of the transfer of the immovable property; </p> <p> </p> <p>(b) Interest on the said amount a tempore morae according to law from 11 December 2015 to date of payment. </p> <p> </p> <p>(c) Costs of suit, such costs to be paid on the scale as between attorney and client. </p> <p> </p> <p>(d) Further and/or alternative relief.</p> <p> </p> <p>ALTERNATIVELY TO CLAIM A</p> <p> </p> <p>(e) An Order directing the First and Second Respondents to pay to Applicants the amount of R 239 900.00 jointly and severally the one paying the other to be absolved (such amount being the difference between the purchase price and the price Applicants would have paid for the property). </p> <p> </p> <p>(f) Interest on the aforesaid amount a tempore morae according to law from 11 December 2015 to date of payment.</p> <p> </p> <p>(g) Costs of suit, such costs to be paid on the scale as between attorney and client.</p> <p> </p> <p>(h) Further and/or alternate relief.</p> <p> </p> <p>CLAIM B (As against the First, Second, Third, and Fourth Respondents jointly and severally)</p> <p> </p> <p>(i) An Order directing the Respondents to pay to the Applicants the sum of R134 708.40 (One Hundred and Thirty Four Thousand Seven Hundred and Eight Rand and Forty Cents) as damages, jointly and severally the one paying the others to be absolved</p> <p> </p> <p>(j) Interest of the aforesaid amount a tempore morae according to law from 11 December 2015 to date of payment.</p> <p> </p> <p>(k) Costs of suit, such costs to be paid on the scale as between attorney and client.</p> <p> </p> <p>(l) Further and/or alternate relief.</p> <p> </p> <p>WHEREABOUTS OF SELLERS</p> <p> </p> <p>14.</p> <p>The First and Second Respondents until or about 30 April 2016, lived permanently at 219 Marine Drive, Bluff, KwaZulu-Natal.</p> <p> </p> <p> </p> <p>15.</p> <p>However, the First and Second Respondents have now left South Africa permanently. They now reside in New Zealand . This much has been confirmed by their attorney Mr. G. Munien in a letter dated 19 May 2016. A copy of the said letter is annexed hereto marked “GDF.1”.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>16.</p> <p>I have been advised that in order for this Honourable Court to exercise its jurisdiction there has to be an attachment of property belonging to the Respondents to confirm such jurisdiction.</p> <p> </p> <p>17.</p> <p>The First and Second Respondents are the registered owner of immovable property described as Portion 12 of Erf 300 of Bluff with street address at 219 Marine Drive, Bluff, Durban. A copy of a Windeed Property Search confirming same is annexed hereto marked GDF.2” </p> <p> </p> <p>18.</p> <p>Further confirmation of such ownership can be found in a certificate of occupation issued by eThekwini Municipality dated 4 June 2015 addressed to the First and Second Respondents at the abovementioned address. A copy of the said certificate is annexed hereto marked “GDF.3”.</p> <p> </p> <p>19.</p> <p>The said property is currently being advertised for sale. I attach a copy of a photograph of the said adverti*****t hereto marked “GDF.4”. </p> <p> </p> <p>20.</p> <p>I have been informed by my attorney who has spoken to Marinda of Acutt’s Estate Agents that the property has not been sold as yet. I refer to the confirmatory affidavit of BURT SILVERSTON LAING filed evenly herewith.</p> <p> </p> <p> </p> <p>21.</p> <p>The Second Applicant and I accordingly desire that the property should be attached in order to found the jurisdiction of this Honourable Court to adjudicate the dispute as fully described in the intendit (Annexure “A” to the Notice of Motion).</p> <p> </p> <p> </p> <p>22.</p> <p>I am advised that because the First and Second Respondents no longer reside in South Africa, leave of this Honourable Court is required to institute proceedings against them by way of edictal citation. I respectfully submit that what appears later in this affidavit and in the particulars of the claim (intendit) complies with what is required to be proved in terms of Rule 5(2) of the Uniform Rules of Court.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>23.</p> <p>The Applicants suggest that service be affected on the First and Second Respondents at their new place of residence at 54A Gladys Avenue, Glenfield, Auckland, New Zealand. </p> <p> </p> <p>24.</p> <p>In addition to the foregoing, I suggest that service should also be effected on the First and Second Respondents’ attorney, G. Munien & Associates of 37 Canterbury Grove, Glenwood, Durban. </p> <p> </p> <p>BACKGROUND FACTS GIVING RISE TO ACTION</p> <p> </p> <p>25.</p> <p>(a) During the period July and/or August 2015 during the course of negotiations relating to the purchase and sale of the aforesaid property, the sellers and/or their representatives represented that the property had been professionally and substantially improved which justified the purchase price of R1 550 000.00. Implicit in these representations were that the improvements and additions had been lawfully built according to building plans approved by the eThekwini Municipality during 2013.</p> <p> </p> <p>(b) When I viewed the property, I saw that there were extensions to a bedroom and dining room (in the main dwelling), construction of a new granny flat, double garage and swimming pool. </p> <p> </p> <p>26.</p> <p>The parties signed the agreement of purchase and sale on 20 August 2015.</p> <p> </p> <p>27.</p> <p>The First and Second Respondents (the sellers) were fully aware that my wife and I would have to apply for a bank loan and/or bond finance in order to pay the asking price for the property.</p> <p> </p> <p> </p> <p>28.</p> <p>(a) First National Bank (“FNB”) considered our loan application and called for proof and/or confirmation of the approved plans for the additions and improvements made to the property and were provided with documents to that effect. A Copy of the plans allegedly approved by eThekwini Municipality dated during 2013 is annexed hereto marked “GDF.5</p> <p> </p> <p>(b) FNB was also provided with an occupation certificate issued by eThekwini Municipality for the immovable property dated 4 September 2015 indicating that the renovations and building work had been completed according to the approved plan No. 094/09/13 and that the property may be used. A copy of the said certificate is annexed hereto marked “GDF.6.</p> <p> </p> <p>(c) The above position was confirmed by Mr. Buddy Peters the Manager of FNB Home Loans, Durban in an email a copy of which is annexed hereto marked “GDF.7”.</p> <p> </p> <p>29.</p> <p>As I understood matters, FNB had to satisfy themselves that the amount of the loan we had app**** for to pay the purchase price was justified. According to my knowledge at the time, FNB were apparently satisfied that the property had been lawfully improved and therefore granted the loan finance to us in the amount of R1 550 000.00. </p> <p> </p> <p> </p> <p>30.</p> <p>The aforesaid representations concerning approved plans and occupancy certificates made by the employees of eThekwini Municipality were subsequently admitted by them to have been false. On or about 11 January 2016 (after the transfer of the property and the payment of the purchase price to the Respondents), to my absolute shock and horror I received a contravention notice from the eThekwini Municipality informing us that we had contravened section 4(1) of the National Building Regulations and Building Standards Act 103 of 1977 (“the Act”) as the additions and alterations to the property had been erected without the prior approval of building plans. The said notice called on us to either demolish the building work or submit an application for approval for such building work. A copy of the said notice is annexed hereto marked “GDF.8”.</p> <p> </p> <p> </p> <p>31.</p> <p>As a result of the aforesaid development we have been severely prejudiced and put to considerable expense to resolve what has been occasioned by such ********** conduct.</p> <p> </p> <p>32.</p> <p>I am aware that the First, Second and Third Respondents have accepted responsibility to submit further revised plans to the Fourth Respondent for approval. In this regard I instructed my attorney of record to consult with an engineer and architect. I have been advised that both persons inspected the property and have perused the ******* 2013 building plans and the current revised plans, which have been recently provided to my attorney. In order not to overburden this affidavit, I shall ensure that a copy of those plans be made available to this Honourable Court when the application is heard. onourable Zcourt when this application os heard.</p> <p> </p> <p> </p> <p> </p> <p>33</p> <p>I have been informed by LEIGH BISHOP that she has discussed this issue with MR THEMBA of the Building Inspectorate of the Fourth Respondent and that he (THEMBA) expressed a serious concern that the revised building plans cannot and will not be approved because inter alia the existing sewage lines from the granny flat that lead into the inside of the double garage are ******** and do not comply with the Building Regulations Sans 10400. This means that the entire sewage configuration will have to be rerouted away from the garage. This in turn will require major remedial construction work to re-arrange the bathroom and toilet space of the granny flat with a partial demolition of the existing structure and foundations at considerable cost.</p> <p> </p> <p>34</p> <p>I also discovered that building plans that had been submitted by the sellers (First and Second Respondents) during 2013 and that they had been rejected by the Fourth Respondent as early as 4 October 2013, some two years before the sale of the property to my wife and me. The decision notice, a copy of which is annexed hereto marked “GDF.9” listed some 16 items that required attention before plans could be approved.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>35.</p> <p>The estimated cost of all the remedial work necessary for compliance with the said decision notice (Annexure “GDF.9”) is an amount in the sum of R239 900.00. In this respect I refer to the report of LEIGH BISHOP annexed hereto marked “GDF.10”.</p> <p> </p> <p> </p> <p>36.</p> <p>I draw the attention of the Honourable Court to the opinion expressed by LEIGH BISHOP in Annexure “GDF.10” to the effect that if the neighbours do not consent to ‘legalise ancillary dwelling crossing over building lines’ the ancillary dwelling will need to be demolished and rebuilt. The cost of this exercise is estimated in an amount of R781 400.00.</p> <p> </p> <p> </p> <p>37.</p> <p>A result of all of the foregoing, I instructed my attorney to institute legal proceedings against the Respondents.</p> <p> </p> <p>EDICTAL CITATION & INTENDIT (PARTICLARS OF CLAIM)</p> <p> </p> <p>38.</p> <p>I respectfully submit that:</p> <p> </p> <p>(a) The representations concerning the renovations and additions to the property as described in Annexure “A” to the Notice of Motion, were made by the First and Second Respondents and/or their representatives to us with the knowledge that they were false.</p> <p> </p> <p>(b) The First and Second Respondents and/or their representatives knew and/or were aware that we did not know of the falsity of the aforesaid representations.</p> <p> </p> <p>(b) Had we known or been informed of these matters and problems with the property and with the eThekwini Municipality we would not have purchased the property at all. </p> <p> </p> <p> </p> <p>39.</p> <p>As a result of the conduct of the First and Second Respondents I instructed our attorney of record to cancel the agreement and claim repayment of the purchase price and damages. A copy of the notice of cancellation is annexed hereto marked “GDF.11”. </p> <p> </p> <p> </p> <p>40.</p> <p>It is significant to mention that the person who introduced me to the First and Second Respondents’ property was one Tracy Hughes, who was employed as an estate agent with Seef Properties. Subsequent to the registration of transfer of the property I have discovered that:</p> <p> </p> <p>(a) The Third Respondent (Jerome) who was the previous owner of the property had sold it to the First Respondent (his son-in-law), and the Second Respondent (his daughter), on 28 July 2013.</p> <p> </p> <p>(b) Ms. Hughes is the Third Respondent’s niece and is therefore also related to the Second Respondent.</p> <p> </p> <p>(c) The Third Respondent was the developer of the property and had attended to the building work on behalf of the First and Second Respondents.</p> <p> </p> <p> </p> <p>41.</p> <p> </p> <p>Notwithstanding demand:</p> <p> </p> <p>(a) the First, Second and Third Respondents have disputed liability or any wrongdoing</p> <p> </p> <p>(b) the Fourth Respondent has indicated that it is investigating the matter</p> <p> </p> <p>42.</p> <p>In the circumstances, I respectfully submit that the Second Applicant and I are entitled to cancel the aforesaid agreement and claim payment of the amounts set out in Claim A and Claim B of Annexure “A” to the Notice of Motion, which amounts are now due, owing and payable.</p> <p> </p> <p> </p> <p>43.</p> <p>I may mention to this Honourable Court that at the time when written demand was made during February 2016 my wife and I were in agreement that such steps should be taken in this matter to restore the status quo. Unfortunately, since that time the stress that this matter has caused together with other personal problems that arose have caused my wife and I to separate and she has indicated that she wishes to become divorced. At present she is holidaying in Ireland and as a result I am unable to obtain a confirmatory affidavit from her in this matter. </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>WHEREFORE I pray that it will please this Honourable Court to grant an order in the terms set forth in the Notice of Motion annexed hereto.</p> <p> </p> <p> </p> <p> ________________________________ </p> <p> GERALD DAVID FRANCIS</p> <p> </p>