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[2017] ZAWCHC 73
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Polizzi and Another v Standard Bank of South Africa Limited and Others (12598/2009) [2017] ZAWCHC 73 (30 May 2017)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 12598/2009
Before: The Hon. Mr Justice Binns-Ward
Hearing: 24 May 2017
Judgment:
30 May 2017
In
the matter between:
DEVANAYAGIE
POLIZZI
First
Applicant
SALVATORE
POLIZZI
Second
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
First
Respondent
REGISTRAR
OF DEEDS, CAPE
TOWN
Second
Respondent
THE
TRI-ACTION INVESTMENT TRUST
(IT4241/2005)
Third
Respondent
SHERIFF
OF THE HIGH
COURT
Fourth
Respondent
JUDGMENT
BINNS-WARD
J:
[1]
The applicants have applied for an order
rescinding the order made by Blignault J on 26 May 2015, in
terms of which a judgment
sounding in money was entered against them
in favour of the first respondent bank, and the immovable property
that they owned in
Milnerton, Cape Town, was declared directly
executable. The judgment was founded on a mortgage debt.
The property was
subsequently sold to the third respondent at a sale
in execution during November 2015. The applicants also seek an
order
setting the sale aside. The application was brought only
in June 2016, after the third respondent had instituted proceedings
in the magistrates’ court for the eviction of the applicants
from the property.
[2]
The application has been on the roll
several times without coming to a hearing. On the last occasion
the matter was on the
court roll (in February 2017), it was again
postponed. At a conference in chambers with the Judge President and
the Deputy Judge
President the parties agreed that 24 May 2017
would be fixed as the date for the hearing of the matter. The case
was allocated
to me on 18 May 2017, and the parties were advised
accordingly.
[3]
On 23 May 2017, the applicants filed a
notice of withdrawal of the application at the office of my
registrar. The notice of
withdrawal was filed together with a
copy of a summons issued out at the instance of the applicants, also
on 23 May 2017, in which
they seek a judgment sounding in money
against the first respondent bank and a declaration that they were
not indebted to the bank.
In the action they also seek an order
declaring sub-rules 46(10) and (12) of the Uniform Rules to be
incompatible with the
Constitution.
[4]
Rule 41(1) of the Uniform Rules allows a
party who has instituted proceedings that have been set down for
hearing to withdraw them
with the consent of the other parties, or
failing that, with the leave of the court. It was not apparent
from the terms of
the notice of withdrawal that the other parties had
given their consent. And the matter therefore went to open
court despite
it. When the matter was called counsel for the
first and third respondents indicated that those respondents did not
consent
to the withdrawal of the application and were opposed to the
court granting leave in terms of rule 41(1) for that to happen.
After hearing argument from the first applicant - who appeared in
person, on behalf of herself and her husband, the second applicant
-
and from counsel for the first and third respondents, I gave an
ex
tempore
judgment refusing the
applicants leave to withdraw the rescission application.
[5]
It is unnecessary to repeat here what I
said in the
ex tempore
judgment. But an understanding of the part of this judgment
that deals with the determination of an application for a further
postponement of the rescission application that was moved by the
applicants after I had delivered it will be assisted by mention
of
the fact, discussed therein, that the allegations in the summons in
the action issued by the applicants on 23 May 2017
were
contradictory of any genuine intention by the applicants to withdraw
the rescission application. The notion that the
applicants
wanted to withdraw the application was inconsistent with allegation
in the particulars of claim that the issues in the
rescission
application and those in the action should be heard and determined
together. The allegations in the summons in
point of fact
showed up the purported ‘withdrawal’ of the rescission
application as nothing other than a gambit to
achieve its
postponement.
[6]
The real position of the applicants was
confirmed in the averments made by the first applicant in the
application for the further
postponement of the rescission
application. They averred that they had not been represented by
counsel at the hearing on
24 May 2017 because that would have
involved unnecessarily incurring costs in respect of matter that fell
to be dealt with
in the freshly instituted action. It was also
suggested that a postponement of the rescission application would
better serve
the convenience of the court because, so it was said, it
would be a waste of the court’s time to deal with the
rescission
application now in view of the pending freshly instituted
action.
[7]
I made an order refusing a further
postponement of the rescission application and indicated that I would
furnish the reasons for
that decision in the judgment in the main
application. Those reasons follow.
[8]
The proceedings in which the order that is
sought to be set aside was made were instituted as long ago as 2009.
A settlement
agreement was entered into between the applicants and
the first respondent on 25 February 2010, in terms whereof the
applicants
acknowledged that they were in default of their mortgage
bond obligations, and that they were at that time in arrears with
their
monthly bond instalments in the amount of R714 744,90.
It was agreed that the applicants would settle the arrears by
way of
payments of R50 000 per month commencing on 24 March 2010 and
thereafter on the 24
th
day of each succeeding month, with the remaining balance to be
redeemed in full by a larger payment on 24 August 2010, which
would also include the instalment due under the contract for
August 2010. The agreement provided that the further bond
instalments due thereafter would be paid in accordance with the
contract as they fell due. It was further agreed that should
the applicants default in performance under the terms of settlement,
the full balance would thereupon become payable immediately
and the
first respondent would ‘be entitled to immediately and without
further notice, obtain Judgment for the full outstanding
amount
together with the further relief as prayed for in the Summons, and
issue the Warrant of Execution in respect thereof’.
[9]
The Deed of Settlement included a clause
providing for it to be made an order of court. Samela Aj
made the agreement
an order on the same day (25 February 2010).
[10]
The applicants did not perform in terms of
the settlement agreement; and, in the apparent misapprehension that
the order made by
Samela AJ entitled it to proceed to execute against
the property, the first respondent procured the issue of a writ of
execution
against the applicants’ property. The
subsequent realisation by the first respondent of its error led to
the withdrawal
of the writ, and the matter then being brought before
Blignault J for judgment in terms of in terms of rule 41(4).
[11]
The applicants were aware that judgment was
to be sought by the first respondent on 26 May 2015. The
matter came up before
Blignault J then because the applicants
had previously succeeded, before Ndita J, on 22 April 2016
in obtaining
a postponement to on that date. On 25 May
2015, the first applicant addressed a letter to the first
respondent’s
attorneys advising that she would not be present
at the hearing on the following day because she was unwell. The
first respondent’s
attorneys responded that they nevertheless
intended to proceed with the application for judgment. The
first applicant’s
letter was placed before Blignault J
before he made the order that the applicants now seek to have
rescinded.
[12]
The applicants were advised promptly by the
first respondent’s attorneys by email and registered post of
the judgment that
had been granted against them by Blignault J.
The applicants did nothing to have to it set aside, and the mortgaged
property was thereafter attached and sold in execution during
November 2015.
[13]
The sheriff was refused admission to the
premises when he requested to inspect it for the purposes of settling
the advertisement
of the sale. The applicants were aware of the
date of the sale because the applicant was present in person at the
auction
conducted at the property’s address by the sheriff.
Although there is a complaint that the description of the property
in
the advertisement for the sale was inadequate – an issue that I
shall address presently – no point has been taken
that there
was not compliance with sub-rule 46(7)(e), which requires that notice
of the sale be displayed at the place where it
is to take place.
As mentioned, it was only more than six months later, after the third
respondent commenced eviction proceedings
against the applicants,
that the application for rescission was instituted.
[14]
As also mentioned, the application has been
postponed on terms intended to render it ready for hearing on four
occasions (on 31 August
2016 before Canca AJ; on 31 October
2016 before Magona AJ, on 5 December 2016 before Pillay AJ
and on
28 February 2017 before Goliath DJP).
[15]
The last mentioned postponement was ordered
by agreement by the parties as to a date that suited them all, as
well as their legal
representatives. The first respondent was
at that stage represented of counsel by Mr
Jonker
.
It appears that he subsequently discovered that the agreed date of
24 May 2017 clashed with the date for which another
matter, in
which he was engaged as junior to a senior advocate, had been
reserved. Enquiries were then made of Mr Douglas
J
Shaw
,
who was counsel for the applicants, if Mr
Jonker
’s
predicament could be accommodated by further postponing the matter to
31 May 2017. The relevant email correspondence
was annexed
to the first respondent’s attorney’s affidavit in
opposition to the applicants’ application for a
postponement.
It included an email from the first applicant confirming Mr
Shaw
’s
availability on 24 May. It is not necessary to go into the
detail, but it is evident from the correspondence
that Mr
Shaw
’s
reported commitment to the date of 24 May became less certain
after he had been approached to accommodate Mr
Jonker
’s
unavailability on that date. Mr
Shaw
did not address the request to move the hearing to 31 May.
Instead, he indicated to the first respondent’s attorneys
that
it had become apparent to him that the matter was complex and that it
was ‘now clear that it is not simply a matter
of allocating a
date for hearing’. He claimed that there was need to file
a substantial amount of additional paper
in the matter and that a
timetable for this should be agreed. The clear implication in
Mr
Shaw
’s
communication was that a further postponement of the rescission
application beyond the end of May was being suggested.
[16]
The first respondent’s attorneys
informed Mr
Shaw
that in the circumstances the first respondent would engage different
counsel in place of Mr
Jonker
and that the matter would proceed as arranged on 24 May.
The clear implication in the response was that a further postponement
of the matter would not be entertained. The first respondent’s
attorneys were dealing directly with Mr
Shaw
because there was (and still is) no indication on record of the
identity of his instructing attorney. Enquiries of Mr
Shaw
as to who his instructing attorneys might be went unanswered.
Heads of argument running to 68 pages were filed by the applicants
on
23 May, well outside the time limit provided in terms of this
courts rules of practice and that directed in terms of the
order made
by the Deputy Judge President on 28 February. The heads of
argument were not signed, but they identified
Mr
Shaw
as ‘Drafter of Heads of Argument’. Mr
Shaw
did not, however, make an appearance when the matter was called on
24 May.
[17]
The explanation for the applicants’
appearance without any legal representation on 24 May was given
in the supporting
affidavit in the application for postponement.
I have summarised the pertinent averments in paragraph [6]
above. In oral argument, however, the first
applicant submitted that it would do the applicants an injustice were
the matter
to proceed in the absence of their legal representatives.
[18]
It is in the public interest that all
litigation should be brought to finality with reasonable expedition.
The personal interest
of the first and third respondents in achieving
finality in these proceedings is self-evident. The history of
the matter
shows that it has been inordinately protracted. It has
been emphasised repeatedly by the courts that a postponement is an
indulgence;
it is not to be had just for the asking. In
deciding an application for postponement the court exercises its
discretion upon
a holistic consideration of the issues. It is
not only the position of the party seeking the indulgence that is
considered,
but also the effect of a postponement on the other
parties and the administration of justice in general. Other
litigants
anxious to have their matters heard could not get their
matters set down for 24 May because the available slots were
fully
subscribed; the one for this matter having been filled
consequent upon the parties’ aforementioned agreement.
[19]
In the circumstances the explanation for
the absence of the applicants’ legal representatives when the
matter was called was
wholly unacceptable. It was not for the
applicants and their legal representatives to decide unilaterally
that the attendance
of counsel on a specially pre-arranged date would
be unnecessary because
they
had adjudged that the issues in the matter could better be determined
in a different context of their own choosing – that
is, in
their freshly instituted action, rather than in their long pending
application. The applicants had only themselves
and their legal
representatives to blame in the circumstances if the matter were to
proceed on the appointed without the advantage
of them being legally
represented. Their wish to be legally represented had been more
than adequately accommodated in the
arrangements especially made
under the auspices of the Deputy Judge President. Their conduct
in acting in wanton disregard
of those arrangements, and in the
institution of fresh proceedings in terms of the summons mentioned
earlier, supports the inference
that their intention was to further
delay the hearing of their own application. While the matter is
delayed they continue
to occupy the property that the third
respondent has purchased. They pay no consideration for their
occupation, and they
are using the pending proceedings as a means to
stay the determination of the application that has been brought in
the magistrates’
court for their eviction.
[20]
For those reasons, quite apart from the
question of the merits of their application for rescission, to which
I shall turn presently,
I could find nothing of merit in the
application for postponement, and therefore refused it.
[21]
The application for rescission was not
brought under any particular provision of the Uniform Rules. It
was not an application
for the setting aside of a default judgment in
terms of rule 31. It also would not qualify to be brought in
terms of rule
42. It would seem to follow therefore that it
fell to be decided under the common law.
[22]
An applicant for rescission under the
common law is required to show ‘sufficient cause’.
The courts have refrained
from precisely delineating the ambit of
that concept, but certain minimum requirements have been identified.
So, in
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A), at 765A-E, Miller JA held –
The term “sufficient
cause” (or “good cause”) defies precise or
comprehensive definition, for many and various
factors require to be
considered. (See
Cairn’s Executors v Gaarn
1912 AD 181
at 186 per Innes JA.) But it is clear that in principle and in the
long-standing practice of our Courts two essential elements
of
“sufficient cause” for rescission of a judgment by
default are:
(i) that the party
seeking relief must present a reasonable and acceptable explanation
for his default; and
(ii)
that on the merits such party has a bona fide defence which, prima
facie, carries some prospect of success. (
De
Wet
’s
case supra [
De
Wet and Others v Western Bank Ltd
1979 (2) SA 1031
(A)] at 1042;
PE
Bosman Transport Works Committee and Others v Piet Bosman Transport
(Pty) Ltd
1980
(4) SA 794 (A)
;
Smith
NO v Brummer NO and Another; Smith NO v Brummer
1954
(3) SA 352
(O)
at
357 - 8.)
It is not sufficient if
only one of these two requirements is met; for obvious reasons a
party showing no prospect of success on
the merits will fail in an
application for rescission of a default judgment against him, no
matter how reasonable and convincing
the explanation of his default.
An ordered judicial process would be negated if, on the other hand, a
party who could offer no
explanation of his default other than his
disdain of the Rules was nevertheless permitted to have a judgment
against him rescinded
on the ground that he had reasonable prospects
of success on the merits.
[23]
It is evident from the history that I have
described that Blignault J made the order that the applicants seek to
have rescinded
having been apprised of the first applicant’s
proffered reason for failing to appear. It may be inferred that
the learned
judge must have found it unacceptable. In my
judgment, the applicants’ subsequent failure, upon being
informed of the
order very shortly after it was made, to do anything
to have it rescinded is closely related to their failure to have
appeared
to oppose its making.
[24]
The order made by Magona AJ on
31 October 2016, when the matter was postponed for hearing on
5 December 2016, contained
a paragraph which, according to its
tenor, appeared to condone the late institution of the rescission
application by the applicants.
There is no indication how that
provision came to be inserted into the order postponing the
rescission application. Moreover,
no self-standing application
for condonation was actually before the learned acting judge, and
there was no separation of issues
in the rescission application.
There is furthermore no indication that a relevant condonation
application was argued before
her. The only condonation
application requiring the court’s attention at that stage was
an application by
the respondents
for the late filing of their answering papers.
[25]
It
would in any event have been impossible in principle to deal with the
question of condonation separately from the merits of the
rescission
application; the institution of a rescission of judgment under the
common law is not subject to a prescribed time limit
in terms of the
rules of court. The delay in the bringing of the rescission
application is a question that is inextricably
bound up with the
other considerations pertinent to its determination. They
cannot properly be considered discretely.
Thus, for example, as
the extract from
Chetty
quoted above illustrates, there is no point in accepting an
explanation for delay or default, if the substantive remedy sought
by
the applicant has no merit. That the two considerations go
inseparably hand in hand is also illustrated in
Nkata
v FirstRand Bank Limited
2014
(2) SA 412
(WCC), in which condonation would have been refused
despite the existence of a good case on the merits because the
explanation
for the delay was inadequate.
[1]
The respondents’ answering papers are wholly inconsistent with
them having consented to any condonation of the applicants’
delay (which, as I have already noted, was inordinate). Indeed,
by the time came before Magona AJ, heads of argument
had been
filed by the first respondent’s counsel, in which it is plain
that the late bringing of the rescission application
was one of the
bases upon which it was being opposed.
[26]
The order of 31 October 2016 was made
without reasons, and in circumstances when it would seem that the
only matters to be
determined by the acting judge were the late
filing of the answering papers and the postponement of the rescission
application.
In all the circumstances it seems that the
condonation provision in the order must have been included in error
by whomsoever drafted
the document – it has the appearance of a
document drafted by a legal representative and presented to the court
for endorsement
– and signed by the acting judge in that form
per incuriam
.
However, even if my interpretation of the circumstances in which the
order appears to have been made is wrong, I do not
consider that its
effect could be to alter the approach that the court seized of the
merits of the rescission application is enjoined
to take, including
taking into account the issue of delay.
[27]
The only explanation for the delay given by
the applicants is that they had engaged legal representatives to whom
they allegedly
paid fees in the amount of R14 000, but received
no service in return. Having regard to the period of a year
that intervened
between the time that the applicants were informed of
the order and their institution of the rescission application, the
explanation
that they have offered is starkly lacking. Not only
did the applicants not explain their failure to act promptly in June
2016 when they were informed that the order had been granted, they
also failed to do anything to stop the sale in execution, or
to take
steps promptly to have it set aside once they knew their property had
been knocked down to the third respondent.
Only the institution
of eviction proceedings appears to have incentivised them to apply
for the setting aside of the order.
The timing of the
institution of the rescission application, which cannot be divorced
from their subsequent conduct in respect
of its postponement on
repeated occasions, is inconsistent with any bona fide belief in its
merit, and bears the hallmarks of strategic
opportunism.
I would have dismissed the application on this ground alone.
But, as I shall explain, I am also
not persuaded that the applicants
had reasonable prospects on the merits of their alleged defences to
the first respondent’s
claim.
[28]
The first defence raised is that the first
respondent lacked standing to pursue the claim against the applicants
because it had
securitised the mortgage loan. The applicants
have failed to establish that they have any cogent evidence to
support this
defence. The allegation has been denied and the
inherent probabilities do not support it. Who is likely to have
taken
cession of the claim without also taking cession of the
security given by the applicants for its redemption? As pointed
out
in the heads of argument drafted by Mr
Jonker
,
the mortgage bond itself is conclusive proof of the identity of the
mortgagee, who, alone, has the necessary standing to sue thereon.
A
mortgage can be conveyed to another only by means of a cession duly
registered by the registrar of deeds in terms of the
Deed Registries
Act 47 of 1937; see
Lief v Dettmann
1964
(2) SA 252
(A). There is no suggestion that the first
respondent was not, at all times material, the registered
mortgage-holder.
[29]
The applicants also claim that the amount
of the first respondent’s claim against it was wrongly
calculated, and overstated.
They rely in this regard on a
report by Lombard Registered Accountants and Auditors. The
report was on its face qualified.
It seems that the difference
between the amount calculated by Lombard and the amount claimed by
the first respondent is attributable
to the withdrawal by the first
respondent at a certain stage of a discretionary interest rate
concession. The amount involved
is in any event less than the
shortfall between the judgment debt and the proceeds of the sale in
execution.
[30]
The applicants also seek to rely on their
right to housing in terms of s 26 of the Constitution.
Whereas Blignault J
would have been bound to take any facts that
the applicants might have relied upon in that connection before he
made an order for
the immovable property to be executable, the
applicants are still in a position to assert any rights they have in
that regard in
the pending eviction proceedings instituted against
them by the third respondent. The property has been developed
and is
apparently used by the applicants for a guesthouse business.
The applicants have not adduced any evidence in the rescission
application that has persuaded me that they would have been able,
before Blignault J, to avoid an order declaring the property
executable. The importance that the law accords to the
enforceability of mortgagee rights has been acknowledged by the
legislature
and the courts; see s 4(7) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
and
Jaftha v Schoeman and Others; Van
Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA
140
(CC) at para. 58,
Standard Bank
of South Africa Ltd v Bekker and Another and Four Similar Cases
2011 (6) SA 111
(WCC), at paras. 16-20, where the relevant effect of
the related jurisprudence in
Gundwana v
Steko Development and Others
2011 (3)
SA 608
(CC) and
Standard Bank of South
Africa Ltd v Saunderson and Others
2006
(2) SA 264
(SCA) is discussed.
[31]
In the circumstances the application for
rescission will be refused.
[32]
Turning now to the application for the
setting aside of the sale in execution. The relief was sought
on the grounds that there
had been inadequate compliance with rule
46(7)(b), which provides:
The
execution creditor shall, after consultation with the sheriff
conducting the sale, prepare a notice of sale containing a short
description of the property, its situation and street number, if any,
the time and place for the holding of the sale and the fact
that the
conditions may be inspected at the office of the sheriff conducting
the sale, and he or she shall furnish the said sheriff
with as many
copies of the notice as the latter may require.
[33]
It seems to me that the requirements of rule
47(7)(b) have been addressed dispositively in this Division in the
judgment of the
full court (per Van Zyl J, Knoll and
Yekiso JJ concurring) in
Hopkins
Boerdery (Edms) Bpk v Colyn and Another
[2005] ZAWCHC 29
;
[2006] 1 All SA 497
(C). The following
was said in the relevant respect at paras. 42-46 of the judgment:
[42] … soos Eloff
R [in
First Consolidated Leasing Corporation Ltd v Theron and
Others
1974 (4) SA 244
(T)] tereg bevind het, indien dit van
die balju verwag sou word om ’n beskrywing van sodanige
eienskappe in die kennisgewing
te vermeld, sou dit vir hom 'n uiters
moeilike taak wees om te besluit wat hy moet noem en wat hy moet
weglaat. Dit sou nooit met
die wetgewer se bedoeling betreffende ’n
“kort beskrywing” van die eiendom kon strook nie. Louw R
se voorstel
met betrekking tot die eienskappe wat in die onderhawige
geval genoem kon gewees het, kan, met eerbied, eenvoudig nie opgaan
nie.
Dit sou miskien van pas wees in die aanloklike advertensie van
'n eiendomsagent of afslaer, maar bepaald nie as deel van ’n
“kort beskrywing” van die eiendom ingevolge reël
46(7)(b) nie.
[43] In ieder geval is
dit debatteerbaar of die beskrywing van die aard van die boerdery wat
op die plaas beoefen sou kon word,
hetsy weiding, gesaai of gemeng,
enigsins as ’n eienskap van die eiendom gereken sou kon word.
Dieselfde geld vir die
beskikbaarheid van Eskom-krag en die
toeganklikheid van die Overberg veesuipingsskema, om nie te praat van
die toerisme-potensiaal
van die woning op die eiendom nie. Dit mag
nuttige inligting wees vir doeleindes van 'n advertensie in die
Landbouweekblad
of iets soortgelyks, maar sou beswaarlik
kwalifiseer as ’n “kort beskrywing” van die
eiendom.
[44] Dit is veral so as
gekyk word na die konteks waarbinne die “kort beskrywing”
vereis word, naamlik vir doeleindes
van die uitwinning van onroerende
goed. Dit staan juis in kontras met die “volledige beskrywing
van die aard en ligging”
van die eiendom soos dit ingevolge
reël 46(1) in die uitwinningslasbrief moet verskyn. Sodanige
“volledige beskrywing”
word vereis om die balju in staat
te stel om die eiendom op te spoor en te identifiseer. Die “kort
beskrywing” van
die eiendom, tesame met besonderhede oor sy
ligging en straatnommer (indien enige), soos vereis deur reël
46(7)(b), sou eweneens
potensiële kopers in staat stel om die
eiendom op te spoor en identifiseer.
[45] Indien potensiële
kopers verdere inligting sou verlang, sou hulle dit maklik genoeg kon
bekom, alternatiewelik sou hulle
die aangewese roete kon volg om self
die eiendom te besoek om eerstehands vas te stel wat presies op die
mark is. Dit sou hulle
beter daartoe in staat stel om die voor- en
nadele van die eiendom te bepaal, met insluiting van die
verwaarloosde toestand van
die verbeterings. Deur niks oor die
verbeterings te sê nie het die Landbank (as vonnisskuldeiser)
en die balju waarskynlik
'n moontlike wanvoorstelling vrygespring.
[46] As die wetgewer dus
praat van 'n “kort beskrywing” van die eiendom moet dit
aldus uitgelê word binne die
verband van die
uitwinningsbepalings van reël 46 as geheel. Daar is geen
suggestie in die betrokke reël dat verdere besonderhede
benodig
word om voornemende kopers se belangstelling aan te wakker met die
oog op die behaal van die bes moontlike prys ten tye
van die
geregtelike veiling nie. In hierdie verband word daar nie 'n woord
gerep oor die beweerde noodsaaklikheid om verbeterings
aan die
eiendom te beskryf nie, om nie te praat van enige ander eienskappe
daarvan nie. Ek koester, met eerbied, enigsins bedenkinge
oor die
korrektheid van die bevinding in dier voege in die
Pillay
[
Messenger of the Magistrate’s Court, Durban v Pillay
1952 (3) SA 678
(A)] en ander sake waarop die respondente gesteun het
(par [32] - [35] hierbo). Vir sover hulle almal oor residensiële
eiendom
gegaan het, en dus onderskeibaar is van die onderhawige saak,
is dit egter nie nodig om daarmee te handel nie.
[34]
I am
conscious that
Hopkins
Boerdery
concerned the sale in execution of agricultural property and it has
been thought that there might be a basis, to avoid what have
been
regarded as the strictures of the advertising requirements as they
were described in
Pillay
,
for distinguishing that from what is required in respect of urban
property. The sub-rule does not itself make for any such
distinction. In my respectful view sounder bases for
distinction lie in the facts that in
Pillay
’s
case the advertisement was admitted to have been non-compliant and
the advertisement in that matter gave only the deeds
office
description of the property.
[2]
The advertisement in the current matter, by contrast, identified the
nature of the property and gave the street address.
It
described that the property had been improved by the construction of
a commodious dwelling house. The applicants
can hardly be heard
to complain that the number of bedrooms was given incorrectly as
eight, instead of 10, when they had refused
entry to the property to
allow the Sheriff to formulate the description. The purpose of
the short description ‘is to
inform the public what is being
sold with the object of attracting bidders so as to obtain as high a
price as possible for the
property’.
[3]
The evidence that a large number of interested persons attended the
sale and that a materially higher price than had been
estimated was
realised proved that the advertisement plainly served its purpose.
[35]
Perhaps more importantly, however, the applicants
knew about the impending sale in execution and did not object to it -
whether
on account of an alleged deficiency in the advertisement, or
for any other reason. Nor did they take steps to have the sale
stayed, or to interdict the transfer of the property to the third
respondent. It is therefore too late now for them to ask
for
the sale to be set aside on the grounds of an arguably inadequate
compliance with sub-rule 46(7)(b). As noted in
Pillay
supra, the common law treats sales
sub
hasta
as ‘sacrosanct’.
Van den Heever JA stated that s 70 of the Magistrates’
Court Act 32 of 1944,
which provides ‘
A sale in
execution by the messenger shall not, in the case of movable property
after delivery thereof or in the case of immovable
property after
registration of transfer, be liable to be impeached as against a
purchaser in good faith and without notice of any
defect
’
was consistent with the position under the common law.
[36]
Now
that transfer of the property has been given to the third respondent,
it would be incumbent upon the applicants, in order to
have the sale
set aside, to show that the purchaser took transfer in bad faith with
knowledge of the alleged defect; see
Sookdeyi
and Others v Sahadeo and Others
1952 (4) SA 568
(A) at 571H-572F and
FirstRand
Bank Ltd v Nkata
2015 (4) SA 417
(SCA) at para. 35.
[4]
The applicants have alleged that the third respondent, which is an
inter
vivos
trust, is the instrument of a certain Mr Butcher, an insolvent,
and have cast aspersions on Mr Butcher’s probity, but
they have
said nothing to support a conclusion that the trustees of the third
respondent took transfer of the property in bad faith
and with
knowledge of any defect in the sale. The application to set
aside the sale therefore cannot succeed.
[37]
In my judgment it was also incumbent upon the
applicants to raise any challenge to the sale predicated on an
alleged constitutional
incompatibility between any of the provisions
of rule 46 before transfer of the property was effected to the
purchaser in terms
of the judicial sale. As mentioned, that is
an issue that the applicants seek to pursue in the action that they
have launched,
not in this application. It is not necessary
therefore to deal with it, but it might be helpful to point out that
the contention
that the absence of any provision in the rule for a
market-related reserve price renders sales in execution of immovable
property
under the rule unconstitutional has already been considered
and rejected by this court in another case; see
Bartezky
and Another v Standard Bank of South Africa Limited and Others
[2017]
ZAWCHC 9
(16 February 2017).
[38]
The first respondent’s counsel submitted that it would be
appropriate to award punitive costs against the applicants.
Whilst the applicants’ conduct of the litigation is open to
suspicion as an abuse of process, I have not been persuaded that
their conduct has been sufficently egregious to merit the exceptional
measure of a punitive costs order.
[39]
The application is dismissed with costs.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
The
applicant in
Nkata
succeeded
in obtaining substantive relief not on the basis of her rescission
application, but rather by virtue of a point raised
in her favour by
the court
mero
motu
predicated on the operation of a statutory provision.
[2]
That
was also the case in
Chasfre
Investment (Pty) Ltd v Majavie and Others
1971 (1) SA 219
(C) and, essentially so, in
Maritz
t/a Maritz & Kie Rekenmeester v Walters; Maritz t/a Maritz &
Kie Rekenmeester v Walters Bank Ltd Intervening; Maritz
t/a Maritz &
Kie Rekenmeester v Walters
2002 (1) SA 689
(C), in which the advertised ‘short
descriptions’ of the properties subject of the sales in
execution were non-compliant.
[3]
Chasfre
Investment
supra,
at p. 222G.
[4]
The
statement of the law in the passage cited in the SCA’s
judgment in
Nkata
was unaffected by the subsequent reversal of the court’s
decision on appeal from it to the Constitutional Court.