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[2014] ZAGPJHC 46
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Absa Bank Ltd v Wu and Another (20402/2012) [2014] ZAGPJHC 46 (14 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
C
ASE
NUMBER: 20402/2012
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
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 matter 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
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 -.
[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 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 case.
[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 manual. 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, is 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:
‘
As
I see it, the short answer to this contention is, however, that this
is not so. 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).’
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.
[14]
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.
[15]
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,
[16]
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 if
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 as well as to the Law Society of the
Northern Provinces.
__________
Wepener
J
Counsel
for Applicant: J. A. Swanepoel
Attorneys
for Appellant: Smit Sewgoolam Inc.
[1]
Gundwana
v Steko Development 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)