Sunday Times E-Edition

Nuisance neighbour must pay costs as court rejects poverty plea

By PHILANI NOMBEMBE

● A Camps Bay man who has been embroiled in several costly spats with his neighbour was dealt a blow this week when a court found him liable for legal bills estimated to have run up to R1.8m.

Businessman Clem Kirst tried to plead poverty in court but magistrate Eric Nogilana was unimpressed, saying Kirst drove a luxury vehicle and went on overseas holidays.

This is the latest round in a nine-year feud between Kirst and retired chartered accountant Trevor Forster in the Cape Town suburb, where homes sell for more than R20m.

On Monday, the court held a financial inquiry into Kirst’s ability to pay the legal costs in the 2018 high court matter he lost. Forster, 69, hauled Kirst, 52, before the courts several times to interdict him and get a protection order after accusing Kirst of shining bright lights into his bedrooms, yelling, fingerpointing and causing him a heart attack.

In 2018, the Cape Town high court granted Forster an interim nuisance interdict against Kirst — which was made final in 2019. Kirst sought to have the interdict rescinded but his application was dismissed in July 2020.

Despite the 2018 ruling that Kirst must foot Forster’s legal bill, he has not paid a cent. Kirst this week denied having an income. But the court found he had “deceptive and ulterior motives”.

Nogilana said he did not believe Kirst’s version — that he is using his ex-wife’s Mercedes-Benz ML — adding that Kirst sometimes even referred to her as his wife and not his ex-wife. The magistrate was “baffled” by many aspects of Kirst’s testimony.

“It remains a so-called mystery as to [Kirst’s] use of the vehicle. When the question was put to the debtor as to why he always uses the car, the debtor says ‘she allows him to use it’. I find myself baffled. It is used too many times,” Nogilana said.

Kirst told the court that he had closed his bank accounts. But Nogilana was sceptical.

“There were trips taken over the time funded by the [Kirst’s] wife who resides with [Kirst] and various cars of expensive value, and food and clothes which was provided for by kind-hearted people and various other explanations ... I believe it is designed for his own convenience. It is worth mentioning the debtor has been a difficult witness, with a sense of deception and recognisable sense of sacrosanct and being sarcastic.”

The magistrate said Kirst had “royally put himself safe by clearing them [assets] away from his name. They are all now owned by what he refers to as his wife, and again as an ex-wife.” He found that Kirst had “deliberately played his game well to achieve his deceptive and ulterior motives”.

“The court was never at any given stage persuaded and convinced that [what] he said in court under oath was indeed true. From time to time, the court would catch [Kirst] contradicting material aspects, as well as blaming his attorneys,” Nogilana said.

“In that context, I do not allow the judgment creditor to lose out and I do not condone any mischief designed to manipulate this process, to ride on the back of the law and take assets to hide them.”

Nogilana ordered Kirst to comply with the high court order “in its entirety” within 60 days of his ruling.

“The court is of the opinion that [Kirst], given his lifestyle, is capable and given his trips overseas and all other luxuries that he still enjoys, and I’m not convinced that someone else is feeding and clothing him.”

Forster said the litigation cost him R1.4m. He said he obtained an interim protection order against Kirst in February last year and that cost him another R400,000.

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2023-03-19T07:00:00.0000000Z

2023-03-19T07:00:00.0000000Z

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