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[2014] ZAGPJHC 43
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ABSA Bank Limited v Wu Chongguang and Another (39305/2013) [2014] ZAGPJHC 43 (14 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NUMBER: 39305/2013
DATE:
14 MARCH 2014
In the matter
between:
ABSA BANK
LIMITED
..............................................................
APPLICANT
And
WU,
CHONGGUANG
..............................................
FIRST
RESPONDENT
LI,
JIA
...................................................................
SECOND
RESPONDENT
Coram: WEPENER J
Heard: 12 MARCH
2014
Delivered: 14
MARCH 2014
Summary:
Foreclosure in matters where execution is sought against immovable
property that may be the primary residence of the consumer
–
practice directive that personal service on consumer required –
practice directive to be adhered to.
JUDGMENT
WEPENER J:
[1] This is an
application for default judgment and declaring immovable property
executable. In such matters the practice directive
of this court is
that the attorney must file an affidavit in accordance with a draft
affidavit set out in the practice directive.
Under the heading
‘Service of Process’ the following appears:
1.7.1. The process
was served personally as appears at page – para - ; or
1.7.2. Service was
affected as appears at page – para – as authorised by the
court (Powel para 7.9) as appears at
page – para -.
This requirement is
also so clearly set out in explanatory notes which accompanied the
practice directive when it was issued.
[2] I do not think
that there can be any uncertainty as to the fact that personal
service is required and failing such, a court
can authorise another
form of service. This requirement was introduced by the practice
directive as a result of the plethora of
litigation to set default
judgments aside and based on considerations of the interests of
justice when execution is sought against
property, which is or may be
a primary residence.
[3] The Constitution
in section 26 provides:
’26. Housing
(1) Everyone has the
right to have access to adequate housing.
(2) The state must
take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation
of this right.
(3) No one may be
evicted from their home, or have their home demolished, without an
order of court made after considering all the
relevant circumstances.
No legislation may permit arbitrary evictions’.
[4] This led to the
Constitutional Court holding that a foreclosure and execution against
immovable property, which might be a person’s
primary residence
or home, can only occur with due regard to the provisions of section
26 of the Constitution. Since the Gundwana
1
and Jaftha
2
matters it has been a trite principle and after the amendment of
Uniform Rule 46, it is now generally accepted that execution
against
immovable property (in this context always referred to as residence
or home) can only be ordered by a court of law, the
latter which
should have due regard to all the circumstances of the matter.
[5] Changes in
legislation, and in particular safeguards favouring consumers, have
been introduced, most notably by the National
Credit Act, 32 of 2005
(NCA) and by the development of the law by the High Courts, Supreme
Court of Appeal and Constitutional Court
pursuant to its duties
imposed, both by legislation and in particular, the Constitution and
the stare decisis rule.
[6] Thus taking into
account that banks are ordinarily entitled to their judgments and
execution, certain safeguards or requirements
developed during the
last few years to protect consumers. In the Western Cape, in the
matter of ABSA Bank Ltd v Janse van Rensburg
and Another
2013 (5) SA
173
(WCC), a full bench has set out certain requirements of practice
in that Division. Similarly, this Division has issued a practice
directive setting out requirements to be adhered to.
[7] In his affidavit
filed in this matter, the attorney did not state that which is
contained in either paragraphs 1.7.1. or 1.7.2.
of the practice
directive. He stated:
‘The process
was served on a person as appears at pages 122 of the additional
bundle’.
[8] This is not in
compliance with the practice directive and I caused the attorney to
file an affidavit to explain this clear non-compliance
with the
practice directive. An affidavit was filed. The attorney admits that
‘service was affected on a person but not personally
as
stipulated in the practice manual’. After quoting the practice
manual, he then states:
‘The aforesaid
paragraph clearly stipulates that there must be personal service in
accordance with the decision of Powel.’
This statement is
devoid of any substance if regard is had to the clear wording of the
practice directive which requires personal
service upon the consumer
and alternative service, if personal service is not possible.
[9] The attorney,
despite him ignoring paragraphs 1.7.1 in order to make this
allegation, then arrogantly suggests that the practice
manual
requiring personal service in paragraph 1.7.1. was an oversight or
error and should have stipulated that service on a person
would
suffice. This, in my view, displays a contemptuous attitude towards
the practice manual and the courts. It shows that the
attorney
understands that personal service is required in this Division, but
that he elects to regard it as an oversight or error
and that
practice manual should have read differently.
[10] In the heads of
argument, counsel for the applicant refers to Greenberg v Khumalo (GS
case numbers 22258/02 and 23302/02 )
wherein Potgieter AJ found that
a practice manual, which conveys a requirement additional to those
contained in the Rules, is procedurally
incompetent and of no force
and effect and should not be applied. Based on this view, it was
argued that the additional requirement
for the personal service is
inconsistent with the Rules.
[12] However, in In
re: Several matters on the urgent court roll [2012] ZAGPLHC 165;
[2012] 4 All SA 570
(GSJ0;
2013 (1) SA 549
(GSJ) (18 September 2012)
the following was said:
‘In Greenberg
v Khumalo and Another
[2012] JOL 29170
(GSJ), Potgieter AJ held that
the practice directive which is inconsistent with the Rules is
procedurally incompetent. I disagree
with the views expressed in
Greenberg for two reasons. Firstly on the reasoning of the learned
judge it has to be determined whether
a practice directive is indeed
inconsistent with the Rules. If the practice directive is compatible
with or in addition to the
Rules, the objection of the learned judge
falls away.
More importantly
though, there has been a prescribed practice in this Division as in
many other Divisions where practice directives
have been issued by
the Judges President or Deputy Judges President on authority of the
Judges President. This practice has been
a long standing one that has
been respected by judges and practitioners.
The reasoning in the
Greenberg matter in paragraph 17 is as follows:
“[17] The
Supreme Court Act empowers the judge president of a provincial
division to make rules regulating proceedings with
reference to the
times for the holding of courts, the placing on the roll of actions
for hearing and the extension or reduction
of time periods in terms
of the Rules of Court. In terms of Rule 1 of the Rules of Court
“action” is defined to mean
“a proceeding commenced
by summons or by writ in terms of rule 9”. Accordingly, the
provisions of the Supreme Court
Act as to the powers of the judge
president to make rules are not relevant to the matters under
discussion.”
I do not believe
that it is correct to interpret the word “action” in the
Supreme Court Act 59 of 1959 (‘Supreme
Court Act’) be
referring to the definition in the Rules. The meaning of the word
“action” in the Supreme Court
Act is to be determined
with reference to that Act. There is no definition of the word
“action” in the Supreme Court
Act. It is consequently
necessary to interpret the word “action” in section 43 of
the Supreme Court Act purposefully
for puposes of that Act. As was
pointed out by Ngcobo J in Bato Star Fishing (Pty) Ltd v Minister of
Enviromental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
CC para 90:
“The emerging
trend in statutory construction is to have regard to the context in
which the words occur, even where the words
to be constructed are
clear and unambiguous. Recently in Thoroughbred Breeders’
Association v Price Waterhouse
2001 (4) SA 551
(SCA) at para 12 the
SCA has reminded us that:
“The days are
long past when blinkered peering at an isolated provision in a
statute was thought to be the only legitimate
technique in
interpreting it if it seemed on the face of it to have readily
discernable meaning.”
If regard is had to
the definition section of the Supreme Court Act wich defines “civil
summons” as:
“…any
summons whereby civil proceedings are commenced, and includes any
rule nisi, notice of motion or petition the
object of which is to
require appearance before the court out of which it is issued of any
person against whom relief is sought
in such proceedings or of any
person who is “interested in resisting the grant of such
relief;”
and “defendant”:
“…includes
any respondent or party against whom relief is sought in civil
proceedings;” and “plaintiff”:“…includes
any petitioner or other party who seeks relief in civil proceedings
I am of the view
that there can be no doubt that the Supreme Court Act is intended to
regulate all proceedings in the High Court
and not only actions in
the narrower sense as described in the Rules. The legislature could
not have intended that a Judge President
can only make rules
regarding actions in the narrow sense of the word. There is no
justification to have recourse to a definition
in the Rules to
interpret the meaning of a word in the Supreme Court Act.
I am consequently of
the view that the word “action” in s 43 of the Supreme
Court Act should be read to include all
proceedings in the High
Court. This would entitle the Judge President to issue practice
directives relating to the setting sown
of matters both in action and
in application court. In the circumstances, all practice directives
issued by the Judge President,
or which are issued on his authority
in relation to matters contained in the Practice Manual, are
competent and should be adhered
to.’ (own underlining)
[13] The practice
manual was issued as a directive from the head of this court. It is
binding upon practitioners, at least until
set aside or amended. (See
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 (6)
SA 222
(SCA) para 26). In Judicial Service Commission v Cape Town Bar
Council
2013 (1) SA 170
(SCA) Brand JA said in para 13 as follows:
‘The mere fact
that an administrative decision was unlawful does not visit all its
consequences with automatic invalidity.
Unless and until an
administrative decision is challenged and set aside by a competent
court, the substantive validity of its consequences
must be accepted
as a fact (see eg Camps Bay Ratepayers' and Residents' Association
and Another v Harrison and Another
2011 (4) SA 42
(CC)
(2011 (2) BCLR
121)
para 62). Moreover, even if an administrative decision is
challenged and found wanting, courts still have a residual discretion
to refuse to set that decision aside (see eg Seale v Van Rooyen NO
and Others; Provincial Government, North West Province v Van
Rooyen
NO and Others
2008 (4) SA 43
(SCA) ([2008]
3 All SA 245
para 13). In
a sense, the 'invalid' administrative decision is then, in the
exercise of the court's discretion, clothed with validity
(see eg
Chairperson, Standing Tender Committee and Others v JFE Sapela
Electronics (Pty) Ltd and Others
2008 (2) SA 638
(SCA) ([2005]
4 All
SA 487)
paras 28 – 29; Eskom Holdings Ltd and Another v New
Reclamation Group (Pty) Ltd 2009 (4) SA 628 (SCA) para 9).’
This principle is
also applicable although the matter may not be one where
administrative action is involved. (See Gundwana at para
58).
[14] It is not for
an individual practitioner to decide what the practice manual ‘should
have stipulated’. The procedure,
as is the case in
sequestration and divorce proceedings, requires personal service as a
matter of practice due to its constitutional
importance to consumers.
[15] The attorney
then sets out the fact that a full bench of this Division is in due
course to consider the question of personal
service in foreclosure
matters. This underlines his knowledge of the requirement of
personal service. No full bench of this Division
has heard such an
appeal and the attorney’s unequivocal disregard of the
provisions of the practice manual is consequently
deliberate.
[16] Attorneys who
wish to deliberately disregard their duties to the court are, in my
view, contemptuous of the very court they
are required to assist to
bring matters to a successful conclusion,
[17] Having regard
to the behaviour of the applicant’s attorney and due to the
deliberate failure to comply with the practice
directive, the matter
is removed from the roll. This matter may not be re-enrolled unless
there is compliance with the practice
directive of this Division. I
further order that the attorney may not recover any costs from the
applicant in this matter up to
this stage of the matter due to his
conduct referred to above. I further direct that the registrar of
this court must forward a
copy of this judgment and order, directly
to the applicant.
Wepener J
Counsel for
Applicant: J. A. Swanepoel
Attorneys for
Appellant: Smit Sewgoolam Inc.
1
Gundwana
v Steko Development and Others
2011 (3) SA 608
(CC)
2
Jaftha
v Schoeman and Others; van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2)
SA 140
(CC)