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[2012] ZAGPJHC 20
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Firstrand Bank Ltd v Powell, Firstrand Bank Ltd v Nsele and Another, Firstrand Bank Ltd v Herbst and Another (2011/9130, 2011/20765, 2011/31969) [2012] ZAGPJHC 20 (6 March 2012)
REPORTABLE
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
In
the matters between:
Case
No. 2011/9130
FIRSTRAND
BANK
LIMITED
..................................................................................
Plaintiff
versus
MARK
POWELL
.................................................................................................
Defendant
and
Case
No. 2011/20765
FIRSTRAND
BANK
LIMITED
..................................................................................
Plaintiff
versus
FAITH
NELISIWE
NSELE
..........................................................................
First
Defendant
NCANE
AGNES
NSELE
.......................................................................
Second
Defendant
and
Case
No. 2011/31969
FIRSTRAND
BANK
LIMITED
..................................................................................
Plaintiff
versus
RAYMOND
LEWIS CECIL
HERBST
..........................................................
First
Defendant
PATRICIA
ELISE
HERBST
....................................................................
Second
Defendant
JUDGMENT
MEYER,
J
[1] In
each of these matters -
Firstrand Bank Ltd v Powell
(SGHC case no 2011/9130),
Firstrand
Bank Ltd v FN & NA Nsele
(SGHC case no 2011/20765), and
Firstrand
Bank Ltd v Herbst
(SGHC case no 2011/31969) – default judgment has already been
granted by the registrar against the defendants for payment
of
certain amounts and interest thereon. FNB now seeks an order to
declare the immovable property in each matter immediately executable
in terms of Rule 46(1) of the Uniform Rules of Court.
[2] The
application for execution against the immovable property in
Powell
states that such application would be made on Tuesday, 4 October
2011. The return of service of the application reads:
‘
That on the 12
October 2011 at 13h50 at 29 VILLA SEVILLE, BEYERSPARK, BOKSBURG, 1460
being the residence of the Defendant a copy
of the APPLICATION FOR
EXECUTION IN TERMS OF RULE 46(1) was served by affixing it to the
principal door, as the premises was found
locked. After a diligent
search and enquiry, no other manner of service was possible at the
given address.’
The
Powel
application was enrolled for hearing on Tuesday, 29 November 2011.
Such being a different date to the one stated in the application
necessitated service of the notice of set down on the defendant.
That return of service reads:
‘
That on the 02
November 2011 at 17h10 at 29 VILLA SEVILLE, BEYERSPARK, BOKSBURG,
1460 being the chosen domicilium citandi et executandi
of MARK POWELL
a copy of the NOTICE OF SET DOWN was served by affixing to the gate.
After a diligent search and enquiry at the
given address no other
manner of service was possible. Rule 4(1)(a)(iv).’
The
address referred to in the returns of service is the address
nominated by the defendant in terms of clause 4.34 of the applicable
written loan agreement ‘… for all communications and
service of notices in respect of any legal proceedings which
may be
instituted …’
[3] The
application for execution against the immovable property in
Nsele
states that such application would be made on Tuesday, 18 October
2011. The return of service in respect of the first defendant
reads:
‘
That on the 03
October 2011 at 18h40 at 104 SUNBIRD ESTATE, SUNDOWNER being the
chosen domicilium citandi et executandi of FAITH
NELISIWE NSELE a
copy of the APPLICATION FOR EXECUTION IN TERMS OF RULE 46(1),
Affidavit in Support of the Application for Execution
of Immovable
Property by Randheer Maharaj, S was served by affixing to the
principal door. After a diligent search and enquiry
at the given
address no other manner of service was possible. Rule 4(1)(a)(iv).
NB: PREMISES LOCKED.
NB. THE NAME OF THE
STREET IS METEOR ROAD.
ATTEMPT(S):
23 September 2011 at
11h52 – AUTOMATIC GATE TO COMPLEX LOCKED. LEFT NOTE
01 October 2011 at
12h03 - AUTOMATIC GATE TO COMPLEX LOCKED. LEFT NOTE.’
The
return of service in respect of the second defendant is similar to
the one in respect of the first defendant. The
Nsele
application
was also enrolled for hearing on Tuesday, 29 November 2011. Returns
of service in respect of the notice of set down
for 29 November 2011
are not in the court file. The physical address ‘…for
service of all forms, notices and documents
in respect of any legal
proceedings which may be instituted …’ nominated by the
defendants in terms of clause 5.33.2
of the applicable written loan
agreement is ‘104 Sunbird Estate Sundown Northgate’.
[4] The
application for execution against the immovable property in
Herbst
states that such application would be made on Tuesday, 25 October
2011. The return of service in respect of the first defendant
reads:
‘
That on the 12
October 2011 at 09h35 at 463 GELDING ROAD, POORTVIEW, ROODEPOORT
being the chosen domicilium citandi et executandi
of RAYMOND LEWIS
CECIL HERSBT – 1
ST
RESPONDENT/DEFENDANT a copy of the APPLICATION FOR EXECUTION IN TERMS
OF RULE 46(1) was served by affixing to the outer door.
After a
diligent search and enquiry at the given address no other manner of
service was possible. Rule 4(1)(a)(iv).
NB: THIS WAS THE ONLY
MANNER OF SERVICE POSSIBLE AS THE PREMISES WAS FOUND VACATED AND
UNATTENDED.
The
return of service in respect of the second defendant is similar to
the one in respect of the first defendant. The
Herbst
application was also enrolled for hearing on Tuesday, 29 November
2011. Returns of service in respect of the notice of set down
for 29
November 2011 are not in the court file. Clause 20 of the applicable
mortgage bond provides that ‘[f]or the purposes
of this Bond
and of any proceedings which may be instituted by virtue hereof, and
of the service of any notice,
domicilium
citandi et executandi
is
hereby chosen by the Mortgagor at 463 GELDING ROAD, POORTVIEW’.
[5] These
three matters initially came before me in the second motion court
during the motion court week that commenced on Tuesday,
29 November
2011. That court
inter
alia
deals
with hundreds of this type of applications on a weekly basis in which
the sales in execution of people’s homes are sought.
Service
in most instances was effected at the chosen
domicilium
citandi et executandi
by affixing a copy to the ‘outer’ door, the ‘principal’
door, the gate, the ‘main’ gate, and
the like, or by
leaving a copy somewhere on the premises, such as under a stone.
Instances of service on a human being, qualified
to receive service,
are rare. The ineluctable inference, in my view, is that debtors are
invariably at work during weekdays when
service of process and of
documents are mostly effected by sheriffs, unless they have moved
away from, or vacated, the premises
where service was effected.
[6] I
have, bearing in mind the constitutionally entrenched right to
housing, in most instances where service was effected at the
chosen
domicilium
by affixing a copy or by simply leaving it somewhere, not been
satisfied as to the effectiveness of such service, and ordered
further steps to be taken. The order which I invariably make is in
the form of a
rule
nisi
with
more or less the following wording:
1. The respondent is
called upon to furnish reasons on (date) at 10h00 or as soon
thereafter as the matter may be heard why the
following order should
not be made:
(Prayers
contained in the application or summons)
2. A copy of this order
and the application herein must forthwith be served at the
respondent’s place of employment, and,
only if a return of
non-service is rendered in respect of such service, upon the
respondent’s residential address on a Saturday.
[7] In
Firstrand
Bank Ltd v Folscher and Another, and Similar Matters
2011
(4) SA 314
(GNP) para [46], the full court said that the issue of a
practice directive to ensure that personal service was effected as
far
as possible in these type of matters ‘… appears to
be unwarranted, and could create uncertainty, quite apart from
causing delay and additional costs that would have to be borne by the
debtor.’ This
dictum
should not
be regarded as detracting from the discretion a court always has with
regard to the effectiveness of service. Rule 4(10)
of the Uniform
Rules of Court provides that ‘[w]henever the court is not
satisfied as to the effectiveness of the service,
it may order such
further steps to be taken as to it seems meet.’ The order
referred to in the previous paragraph does not
require personal
service, although personal service may result in many instances, and
it is always subject to any order of court
relating to the
sufficiency or otherwise of service in a particular case.
[8] It
is only when service at a chosen
domicilium
of notices of motion and of summonses initiating proceedings to
declare a debtor’s primary residence specially executable
and
of the notices of set down when the date of hearing differs from the
one stated in the application for judgment is effected
by affixing a
copy to the outer or the principal door, the gate or the main gate,
and the like, or by leaving a copy somewhere
at the premises, such as
under a stone, that a rule
nisi
is issued in order to inform the debtor when the matter will be
before the court and to ensure the effectiveness of service.
Delivering a copy of the process or document to the debtor personally
or to a person who qualifies to receive service at the debtor’s
domicilium
or residential address or place of employment, has the important
benefit that the sheriff serving the process or documents is,
in
terms of Rule 4(1)(d) of the Uniform Rules of Court, under a duty to
explain the nature and contents thereof to the person upon
whom
service is being effected and to state in his or her return that he
or she had done so.
[9] Counsel
for FNB objected on behalf of the bank that similar orders be made in
these three matters. Counsel’s submissions
ignore the nature
of these applications and that particular caution as to the
effectiveness of service is required for certain
types of
proceedings. Subject to any order of court in a particular case,
personal service is required in this division and considered
warranted in proceedings, such as divorce actions, claims for
incarceration and applications for sequestration. I am of the
view
that any delay and additional costs incurred in ensuring effective
service in proceedings to declare a debtor’s primary
residence
specially executable are warranted and necessary.
[10] In
Jaftha v
Schoeman and Others; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005
(2) SA 140
(CC), para [34], Mokgoro, J concluded that ‘…
any measure which permits a person to be deprived of existing access
to adequate housing limits the rights protected in s 26(1)’ of
the Constitution. All proceedings to declare a debtor’s
primary residence specially executable require judicial oversight and
evaluation of various factors in order to ensure that there
is not an
unjustifiable interference with that person’s constitutionally
entrenched right to housing. See:
Gundwana
v Steko Development
2011
(3) SA 608
(CC) and Rule 46 (1)(a)(ii) of the
Uniform
Rules of Court
.
This constitutional requirement, in my view, also warrants
particular caution in ensuring the effectiveness of the service of
the process and documents in proceedings to declare a debtor’s
primary residence specially executable. A ‘…
party’s
recourse on getting to know of a default judgment – once the
horse has bolted – is a poor substitute
for the initial
judicial evaluation.’
Per
Froneman J
in
Gundwana
,
para [50]. Also see
Jaftha
,
para [49].
[11] An
appropriate analogy where delay and additional costs are warranted in
ensuring that effective notice of the proceedings
are given to those
whose constitutional right to housing might be infringed, is
proceedings for the eviction under the Prevention
of Illegal Eviction
from and Unlawful Occupation of Land Act, 19 of 1998 (‘the PIE
Act’). In interpreting the provisions
of s 4 of the PIE Act,
the Supreme Court of Appeal held that ‘… the s 4(2)
notice is intended as an additional notice
of forthcoming eviction
proceedings …’, and that ‘… the contents
and the manner of service of the notice
… must be authorised
and directed by an order of the court concerned’.
Per
Brand AJA in
Cape
Killarney Property Investments (Pty) Ltd v Mahamba
2001
(4) SA 1222
(SCA), paras [11] and [20].
[12] In
the result the following orders are made:
A. In
Firstrand
Bank Ltd v Powell
(SGHC case no 2011/9130):
1. The defendant is called
upon to furnish reasons on Tuesday, 10 April 2012 at 10h00 or as soon
thereafter as the matter may be
heard why the following order should
not be made:
1.1 The immovable property,
being Erf 2040 Protea Glen Extension 1 Township Registration Division
I.Q. Province of Gauteng, be declared
executable;
1.2 The defendant be ordered
to pay the costs of the application.
2. A copy of this order and
of the application herein must forthwith be served at the defendant’s
place of employment, and,
only if a return of non-service is rendered
in respect of such service, upon the defendant’s
domicilium
or
residential address on a Saturday.
B. In
Firstrand
Bank Ltd v FN & NA Nsele
(SGHC case no 2011/20765):
1. The defendants are called
upon to furnish reasons on Tuesday, 10 April 2012 at 10h00 or as soon
thereafter as the matter may
be heard why the following order should
not be made:
1.1 The immovable property,
being Portion 19 of Erf 17686 Protea Glen Extension 8 Township
Registration Division I.Q. Province of
Gauteng, be declared
executable;
1.2 The defendants be ordered
to pay the costs of the application.
2. A copy of this order and of
the application herein must forthwith be served at the defendants’
places of employment, and,
only if a return of non-service is
rendered in respect of that service, upon such defendant’s
domicilium
or
residential address on a Saturday.
C. In
Firstrand
Bank Ltd v Herbst
(SGHC case no 2011/31969):
1. The defendants are called
upon to furnish reasons on Tuesday, 10 April 2012 at 10h00 or as soon
thereafter as the matter may
be heard why the following order should
not be made:
1.1 The immovable property,
being Erf 381 Willowbrook Extension 3 Township Registration Division
I.Q. Province of Gauteng, be declared
executable;
1.2 The defendants be ordered
to pay the costs of the application.
2. A copy of this order and of
the application herein must forthwith be served at the defendants’
places of employment, and,
only if a return of non-service is
rendered in respect of that service, upon such defendant’s
domicilium
or
residential address on a Saturday.
P.A. MEYER
JUDGE OF THE HIGH COURT
6
March 2012
Final
date of hearing: 2 February 2012
Date of judgment: 6 March
2012
Counsel for applicants: Adv C
Denichaud
Attorneys for
applicant: Glover Inc., Parktown
Ref: Mr B van der
Merwe