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[2014] ZAGPJHC 420
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STT Sales (Pty) Ltd v Darrell and Another (21843/11) [2014] ZAGPJHC 420 (16 October 2014)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 21843/11
DATE: 16 OCTOBER 2014
In the matter between:
STT SALES (PTY)
LTD
...........................................................................................................
Applicant
And
BAND:
DARRELL
......................................................................................................
First
Respondent
FIRSTRAND BANK
LTD
.......................................................................................
Second
Respondent
JUDGEMENT
CARSTENSEN AJ:
1. The Applicant seeks a declaration
that the First Respondent’s immovable property being Section
No. 3 as shown and described
on Section Plan No. SS239/198 in the
Scheme known as Belvedere in respect of the land and building or
buildings situated on the
remaining extent of portion 34 (a portion
of portion 8) of the Farm Zandfontein 585, registration division IQ
in the Province of
Gauteng, local authority Emfuleni Local
Municipality, together with the undivided share in the common
property and the exclusive
use area garden G3, be declared specially
executable.
2. The First Respondent is indebted to
the Applicant as the joint and several judgement debtor in the amount
of R230 802.52, together
with interest and costs.
3. The judgement was granted on the 7th
of December 2010.
4. The First Respondent and SA
Waterproofing CC, the other judgement debtor, have made payment in
reduction of the judgement debt
totalling R6 000.00, but no further
payments have been made since April 2012.
5. At the commencement of the
application, the First Respondent appeared in person and sought
advice as to what he should do. After
considering his position, he
launched an application for postponement on the basis that his
attorney was no longer practising.
It transpired that his attorney
had ceased practising during February 2014 and that he was repeatedly
coaxed and advised by the
Applicant’s attorneys in respect of
the process and procedure in regard to the hearing of the matter.
6. However, he did nothing to obtain a
new set of attorneys and after hearing the application for
postponement, I refused the postponement
and ordered that costs be in
the cause.
7. The main application was then argued
during which he made two submissions:
7.1. that he did not owe the money;
7.2. that the property which the
Applicant sought to execute against was one of his primary residence.
8. In the affidavits filed of record by
the First Respondent, however he admits the judgement debt and the
moneys which have been
paid in reduction thereof. There is in fact
no dispute of fact in the affidavits and in any event, I am faced
with a judgement
of the court which has not been varied, overruled or
set aside.
9. There is consequently no dispute in
respect of the First Respondent’s indebtedness.
10. This leaves the only question of
whether the Applicant should be precluded from executing against the
immovable property in
question as a consequence of Section 26 of the
Constitution, Act 108 of 1996 insofar as the execution would infringe
the First
Respondent’s right to adequate housing.
11. The First Respondent states in his
affidavit that he purchased the property to facilitate his business
activities in Vanderbijlpark,
lives there for three to four days a
week and on occasion, has family and friends who stay there as well.
12. Although the First Respondent
submitted in argument that it was one of his two primary residences,
I find this to be a contradiction
in terms.
12.1. In my view, a person cannot have
two “primary” residences.
12.2. In any event, the First
Respondent has another property where he also resides, being 130
Avondale Street, Sydenham, Johannesburg
and consequently, the
execution against the property in question would not affect his right
to adequate housing.
13. I find that the facts in question
are consequently distinguishable from the decision of Mkhize v Umvoti
Municipality & Others,
2012 (1) SA 1
(SCA) at 14 B – C.
This is, in addition, not an abuse of the execution process, the
Applicant having been frustrated in
the execution since receiving the
judgement in 2010.
14. I also do not find it necessary to
deal with the position of the Second Respondent and the Applicant
must content itself with
the ranking of its security in the event of
an execution sale behind the bond of the Second Respondent.
15. Consequently, the Applicant has
satisfied all the requirements in terms of Rule 46(1)(a)(i) and is
entitled to the relief which
it seeks.
16. In the premises, I grant the
following order:
16.1. The immovable property identified
as:
16.1.1. section No. 3 as shown and more
fully described on sectional plan number SS239/198 in the Scheme
known as Belvedere in respect
of the land and building or buildings
situated on the remaining extent of portion 34 (a portion of portion
8) of the Farm Zandfontein
585, registration division IQ in the
Province of Gauteng, local authority Emfuleni Local Municipality, of
which section the floor
area, according to the said sectional plan,
is 93m² in extent;
16.1.2. an undivided share in the
common property in the scheme apportioned to the said section in
accordance with the participation
quota as endorsed on the said
sectional plan, held by deed of transfer number ST7170/2004; and
16.1.3. an exclusive use area described
as Garden G3 measuring 645m² being part of the common property
comprising the land
and the scheme known as Belvedere as described in
paragraph 1.1 above,
is declared specifically executable in
execution of the judgement of this court under case number 46734/10
granted on the 7th of
December 2010.
16.2. The First Respondent is ordered
to pay the costs of this application on the scale as between attorney
and client.
P L CARSTENSEN
ACTING JUDGE OF THE
HIGH COURT
HEARD: 13 OCTOBER 2014
DELIVERED: 16 OCTOBER 2014
COUNSEL FOR APPLICANT: ADV. R
GOSLETT
INSTRUCTED BY: GERINGS INC.
COUNSEL FOR FIRST RESPONDENT: IN
PERSON
ATTORNEYS FOR FIRST RESPONDENT:
COUNSEL FOR SECOND RESPONDENT: NO
APPEARANCE
INSTRUCTED BY: