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[2015] ZAGPJHC 190
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Columbia Rylaan 14 Northcliff CC and Another v Absa bank Limited and Others (07/118566) [2015] ZAGPJHC 190 (12 February 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NUMBER: 07/118566
DATE:
12 FEBRUARY 2015
In
the matter between
COLUMBIA
RYLAAN 14 NORTHCLIFF
CC
............................................................
First
Applicant
MOODLEY,
GONASAGREN
....................................................................................
Second
Applicant
And
ABSA
BANK
LIMITED
..............................................................................................
First
Respondent
BROWN,
I
.................................................................................................................
Second
Respondent
THE
SHERIFF, JOHANNESBURG
WEST
.............................................................
Third
Respondent
REGISTRAR
OF
DEEDS
........................................................................................
Fourth
Respondent
APPALSAMY,
GAYATHREE
.....................................................................................
Fifth
Respondent
Neutral
citation:
Columbia Rylaan 14 Northcliff CC
& Another v ABSA Bank Limited & Four Others (07/18566) (9
February 2015)
Coram:
EF DIPPENAAR AJ
Heard:
3 February 2015
Delivered:
12 February 2015
Summary:
Rescission of summary judgment;
settling aside subsequent sale in execution; setting aside transfer
of immovable property and directing
registrar of deeds to cancel
registration to second respondent and amend records to reflect
registration of immovable property
in name of first applicant.
ORDER
The
application is dismissed with costs.
JUDGMENT
EF
Dippenaar AJ
[1]
This application relates to the rescission
of a summary judgment granted by Van der Merwe AJ on 10 March 2009 in
which no opposing
affidavits were filed, the setting aside of the
subsequent sale in execution of certain immovable property, Erf 2….,
N…….
Extension 1……. Township,
Registration Division IQ, Gauteng, commonly known as 1……
C……
D…….. N…….., Gauteng,
hereinafter referred to as “the immovable property”
(which
was declared specifically executable) held on 5 September
2013, the setting aside of the transfer of the immovable property to
the second respondent, as purchaser at the said sale in execution
effected on
6 November 2013 and ancillary relief.
[2]
The first applicant was the registered
owner of the immovable property here in issue. The second applicant
is a member of the first
applicant and further seeks rescission of
the summary judgment which had been granted against him in his
personal capacity as surety
and co-principal debtor with the first
applicant.
[3]
The applicants seek:
[3.1]
Condonation for the late launching of the
application;
[3.2]
The setting aside of a summary judgment
order granted by Van der Merwe AJ on 10 March 2009 in terms of rule
42(1)(b);
[3.3]
The setting aside of the sale in execution
of the immovable property on 5 September 2013;
[3.4]
The setting aside of the transfer of the
immovable property into the name of the second respondent on 6
November 2013;
[3.5]
An order directing the fourth respondent,
the registrar of deeds to cancel the registration of the transfer of
the immovable property
into the name of the second respondent and to
amend its records to reflect the first applicant as owner;
[3.6]
Costs only in the event of opposition.
[4]
The
application is opposed by the first respondent, the judgment
creditor. Although, inter alia, the Sheriff and the purchaser of
the
immovable property at the sale in execution have been cited as second
and third respondents respectively, they have not opposed
the
application. Other than a confirmatory affidavit by the second
respondent’s attorney of record to the applicants’
replying papers, none of the other respondents have actively
participated in this application.
[1]
A return of non-service was provided in respect of the second
respondent. A notice of withdrawal as attorneys of record for the
second respondent was served on 22 January 2015, indicating that the
second respondent was aware of the application. There is no
indication in the file that the second respondent ever opposed the
application or filed any papers.
[5]
It is apposite to provide a short history
of the matter as the facts emerge from the papers.
[6]
The first respondent first instituted
proceedings against the applicants on or about 16 August 2007 by way
of simple summons, for
payment of an amount of R607 651,46 together
with interest and costs and an order declaring the immovable property
specifically
executable.
[7]
In the simple summons, reliance is placed
on ‘
written agreements
’
concluded between the first respondent and the first applicant ‘
in
terms of which monies were lent and advanced to the first applicant
as described in the agreement’
. A
copy of a mortgage bond, described as ‘
the
agreement securing the aforesaid money lending agreement
’,
is attached to the simple summons as is a copy of the suretyship
relied on for the liability of the second applicant. The
mortgage
loan agreement is not attached to the simple summons.
[8]
The applicants, via a former attorney of
record, Naiker, filed a notice of intention to defend the action on 5
September 2007 whereafter
the first respondent launched a summary
judgment application on 21 September 2007. An affidavit was also
filed in support of the
declaration of the immovable property as
specifically executable. The application was enrolled for hearing on
20 November 2007.
[9]
No answering affidavit opposing the summary
judgment application was ever filed. It is common cause between the
parties that prior
to the hearing of the summary judgment
application, the applicants paid the then arrear instalments on the
mortgage loan agreement
and the application was by agreement
withdrawn from the roll on 16 November 2007.
[10]
It is undisputed that the first applicant
again fell in arrears with its instalments during May 2008 and it was
notified to make
immediate payment. By February 2009, the arrears had
mounted to some R61 214,07, resulting in the first respondent
enrolling the
application for summary judgment for hearing on 10
March 2009.
[11]
It is common cause that the notice of
set down was duly served on the applicants’ former attorney,
Naiker, on 23 February
2009.
[12]
It is undisputed that there was no
appearance for the applicants on 10 March 2009 and no affidavit
resisting the summary judgment
was filed. Summary judgment was
granted on that date by Van der Merwe AJ and the immovable property
declared specifically executable.
[13]
The applicants contend that they were
not notified of the enrolment for hearing of the summary judgment
application on 10 March
2009 although the notice of set down was
properly served on their erstwhile attorney Naiker. They further
contend that despite
request, Naiker has not provided any explanation
for his remissness in not notifying the applicants accordingly and
that they had
removed their files to another attorney as they were
dissatisfied with the service they had received.
[14]
Pursuant to the granting of the
aforesaid judgment a writ of execution was issued and served on the
first, second and fifth respondents
by registered post. The
applicants deny receiving the writ in execution. Insufficient
documentary proof has been provided that
to establish the applicants
indeed received the writ.
[15]
A sale in execution was arranged and
advertised by the first respondent for 11
June 2009.
[16]
It is common cause that on 22 May
2009, the second applicant contacted the first respondent and
confirmed that he had settled the
then arrears on the bond account.
The sale in execution of the immovable property arranged for 11 June
2009, was then cancelled.
[17]
The first respondent contends that
the applicants were thus aware of the judgment since at least 11 June
2009, being the date on
which the first sale in execution would have
taken place.
[18]
The applicants in reply disavow any
knowledge of the said judgment or sale in execution and contend that
the second applicant “knew
about the arrears and settled same
when he was in a position to do so”. The convenient timing of
such payment is not explained,
nor is any detail provided of the
communication between the parties at the time.
[19]
It is undisputed that during February
2013, the first applicant again defaulted on the loan account and by
July 2013 was in arrears
in an amount of R42 537,76, of which the
applicants were notified via sms. This default sparked the
arrangement and advertisement
of a further sale in execution of the
immovable property to be held on 5 September 2013. The applicants
deny any knowledge of such
sms or the subsequent telephonic messages
made on behalf of the first respondent to make contact with the
applicants.
[20]
The applicants contend that the first
respondent was not entitled to rely on the 2007 affidavit in support
of the application for
summary judgment in 2009 as the facts
presented therein referred to the position in 2007 which no longer
existed at the time summary
judgment was sought on 10 March 2009.
[21]
On the applicants’ own version
the applicants became aware of the proposed sale in execution of the
immovable property during
August 2013. The second applicant first
contacted the first respondent in this regard directly on 27 August
2013 to investigate
the matter.
[22]
Pursuant thereto the applicants were
provided with a history of the litigation, including dates of
relevant events. At that time
the applicants would by necessary
implication also been aware of the fact that a judgment had been
granted against them. The second
applicant’s mother passed away
on 27 August 2013, necessitating his attendance at her funeral in
Durban and causing severe
emotional distress for the second
applicant.
[23]
It
is common cause that on 2 September 2013, the second applicant
addressed an email to the first respondent
[2]
,
wherein he advised, inter alia, that he was expecting funds to pay
the arrears to be available in late September or early October
2013
at which time he intended settling the outstanding payments and
resume regular payments. The first respondent was requested
to
consider whether it would be prepared to consider settlement of the
arrears as offered.
[24]
On
the same day, the first respondent
[3]
responded declining the offer and indicating that it would only
cancel the sale in execution if the arrear amount of R55
800,96 was paid on or before 5 September 2013. The second applicant
on the same date, responded that he was unable to do so and
would
request the banking ombudsman to intervene.
[25]
It is common cause that the
applicants did not settle the aforesaid arrears before the sale in
execution took place, nor took any
legal steps to halt the sale in
execution, despite on their version having appointed an attorney to
attempt to avoid the immovable
property being sold in execution.
[26]
It is undisputed that on 4 September
2013, the applicants’ attorney addressed a letter to the first
respondent’s attorneys
wherein, inter alia, first respondent
was advised that they had received instruction to apply for
rescission of the judgment and
that the second applicant contended
that he was never notified of the sale.
[27]
It is also undisputed that on 5
September 2013, the applicants’ attorney attended the offices
of the sheriff and advised that
the applicants would be seeking a
rescission of the judgment granted on 10 March 2013.
[28]
It
is further undisputed that the applicants’ attorneys provided
attorneys Naidu Richen with copies of the court file on 19
September
2013. Further enquiries were directed to the first respondents’
attorneys
[4]
on 15 and 16 October 2013 pertaining to whether the summary judgment
proceedings had been opposed.
[29]
It
is common cause that the applicants took no immediate steps to launch
any rescission proceedings prior to the transfer of the
immovable
property being registered on 6 November 2013. It appears that the
second applicant was hospitalised from 8 to 19 November
2013, by
which time the transfer of the immovable property had already been
registered.
[5]
[30]
The applicants launched an
application under case number 07/18566, similar to the present
application on or about 4 December 2013.
Thereafter it became
apparent that the first applicant had been deregistered during 2010.
That application was not persisted with.
[31]
It is undisputed that the first
applicant was finally reinstated on 20 March 2014. Thereafter the
present application was launched
on or about 31 March 2014.
[32]
The application for rescission of the
summary judgment is based on uniform rule 42(1)(a), which provides as
follows: ‘
42(1) The court may, in
addition to any other powers it may have, mero motu or upon the
application of any party effected, rescind
or vary: (a) an order or
judgment erroneously sought or erroneously granted in the absence of
any party affected thereby
.’
[33]
It is common cause between the
parties that the application is based squarely on the provisions of
rule 42(1)(a) and is not brought
under the common law. As such, the
applicants must show that there was a procedural irregularity or
mistake in respect of the issue
of the summary judgment order.
[34]
The applicants seek the rescission of
the judgment both on the basis that the summary judgment was
erroneously sought and on the
basis that it was erroneously granted.
[35]
Despite
the apparent failure to advise the applicants of the enrolment of the
summary judgment application for 10 March 2009, such
lack of
knowledge does not avail the applicants and it cannot constitute a
ground for relief.
[6]
[36]
The applicants contend in summary
that the summary judgment was erroneously sought as the first
respondent could not rely on the
2007 affidavit filed in support of
the application for summary judgment as the facts had materially
changed. The 2007 affidavit
could not confirm the altered facts as
they existed during 2008 and 2009 up to the time summary judgment was
sought. They contend
that it is undisputed that the arrears giving
rise to the simple summons had been serviced and that the first
respondent had elected
to continue with the loan agreement. As such,
it is argued, that the summary judgment was erroneously sought. The
continuation
of the loan agreement is in dispute.
[37]
The first respondent in argument
points out that the facts underpinning the application for summary
judgment still existed at the
time the said judgment was sought as
the applicants were in arrears at the time and that the first
respondent elected to claim
the full amount due and payable. It
further contends that the applicants could and should have raised
changed circumstances and
any other defence which the applicants had
by way of an affidavit resisting summary judgment, which was never
done.
[38]
I point out that it is not a
requirement of a rescission application under rule 42(1)(a) for an
applicant to demonstrate a bona
fide defence to the creditor’s
claim and it is not a consideration to take into account in the
present application.
[39]
The
applicants rely on Nyingwa v Moolman NO
[7]
in contending that at the time summary judgment was granted facts
existed of which Van der Merwe AJ was not aware, and had he been
aware of such facts, it would have induced him not to grant the
summary judgment, thus rendering the summary judgment erroneously
sought and/or erroneously granted.
[40]
Applied
to the facts of this matter, this contention cannot be upheld. In
Lodhi 2 Properties Investments CC and Another v Bondev
Developments
(Pty) Ltd
[8]
,
the Supreme Court of Appeal
[9]
held that a judgment to which a party is procedurally entitled cannot
be considered to have been granted erroneously as envisaged
by rule
42(1)(a) by reason of facts of which the learned judge who granted
the judgment, as he was entitled to do, was unaware
and that the
existence or non-existence of a defence on the merits is an
irrelevant consideration, which cannot, if subsequently
disclosed,
transform a validly obtained judgment into an erroneous judgment. It
was at all times open to the applicants to raise
the changed
circumstances when it made payment of arrear instalments after the
institution of the action, which it did not do,
in circumstances
where the action had not been withdrawn.
[41]
The
applicants’ second line of attack is based on an alleged
procedural defect existing in the simple summons, at the time
summary
judgment was granted. They contend that the first respondent’s
failure to attach the mortgage loan agreement which
underpins its’
claim to the simple summons falls foul of rule 17(2)(b) and
constitutes a procedural irregularity or mistake
in respect of the
issuing of the summary judgment order, thus rendering rule 42(1)(a)
applicable. In support of these contentions,
the applicants place
great reliance on Absa Bank Limited v Studdard and Another
[10]
(“Studdard”).
[42]
In
Studdard, Wepener J had to consider the requirements of a simple
summons where default judgment was being sought on a claim which
was
based on a loan agreement secured by a mortgage bond, as in the
present instance. The wording of paragraphs 5, 6 and 7 of the
annex
to the simple summons in the present matter is in substantially the
same terms as the wording of the simple summons Wepener
J had to
consider in Studdard
[11]
.
[43]
Wepener
J, relied on, inter alia, Nedbank Ltd v Jacobs and Another
[12]
,
wherein Thring J held that summary judgment could not be granted
where neither the relevant loan agreement nor the mortgage bond
had
been annexed to the simple summons, which constituted a failure to
comply with the provisions of rule 17(2)(b).
[44]
The same principles will accordingly
apply whether default judgment is sought or whether summary judgment
is sought on an unopposed
basis and in the absence of the defendant.
[45]
As
observed by WepenerJ in Studdard
[13]
:
‘
It
has been a rule of practice in this Division that copies of both the
written agreements of loan as well as the bond document
must be
attached to a summons, including a simple summons, and to produce the
original documents at the time when judgment is requested,
whether
the matter is brought by way of summons or application’
.
[46]
The
reasoning in Studdard was further accepted by the full bench in Absa
Bank Ltd v Van Rensburg
[14]
.
[47]
The first respondent argues that the
Studdard judgment should not be applied retrospectively and that, as
it had not been handed
down at the time the summary judgment was
granted, this judgment is not applicable to this matter. This
argument however disregards
the fact that the judgment of Wepener J
did not create a new legal position but simply enunciates the
existing principles and practice,
which were applicable at the time
the summary judgment was granted on 10 March 2009.
[48]
In the circumstances, there was a
procedural irregularity or mistake in respect of the summary judgment
granted as the absence of
the loan agreement underpinning the
mortgage bond was not attached and there was no compliance with the
provisions of rule 17(2)(b)
which provides as follows: ‘
In
every case where the claim is for a debt or liquidated demand the
summons shall be as near as may be in accordance with Form
9 of the
First Schedule’.
[49]
This
is however not the end of the enquiry as to whether the summary
judgment must be rescinded as it does not follow that the applicants
are of right entitled to such relief. Rule 42(1) is a discretionary
remedy
[15]
and it must still be considered whether the applicants have made out
a proper case for the condonation sought for the late filing
of the
application and whether the application was launched within a
reasonable time. In its heads of argument, the applicants
contend
that it was indeed unnecessary for them to seek condonation as the
application was launched within a reasonable time as
required by rule
42(1)(a).
[50]
Whether or not a formal condonation
application was required, it must be considered whether the
application seeking the rescission
of the summary judgment was
launched within a reasonable time and whether good cause for the
delay has been illustrated.
[51]
What is reasonable must be determined
having regard of the particular facts of this matter.
[52]
I shall return to this issue later.
It is also necessary to consider the further relief which the
applicants seek in order to determine
whether in the circumstances a
discretion should be exercised in favour of the applicants.
[53]
It
is generally accepted that once the judgment is rescinded, the
warrant of execution and the sale of execution have no legal basis
as
between the parties to the litigation and the judgment debtor is
entitled to have the status quo ante restored as against the
judgment
creditor
[16]
.
[54]
It
is further generally accepted that where a judgment is rescinded
after a sale in execution has taken place but before transfer
of the
property to the purchaser had taken place, the owner of the property
is entitled to seek an order setting aside the sale
in execution and
interdicting the transfer of the property to the purchaser at the
sale in execution
[17]
in circumstances where the sale is rendered a nullity by the
rescission of the judgment which gave the sale its validity.
[55]
It was also accepted in Vosal, supra,
that where the purchaser of the property sold in execution became
aware of the owner’s
application for rescission of the
judgment, such purchaser was obliged to restore possession back to
the owner once the judgment
was rescinded, as he was thus aware of
the attack on the judgment and that some risk may attach to his
rights as buyers of the
property.
[56]
As
a general rule, immovable property validly sold in execution at a
judicial sale cannot as a general rule, after registration
of
transfer be vindicated from a bona fide purchaser
[18]
,
provided that the sale in execution was not a nullity.
[57]
The
applicants contend that the sale in execution was a nullity and could
not have served to pass any title to the second respondent
[19]
.
The argument is predicated on the contention that the time lapse of
some 71 months since the filing of the summary judgment application
and the sale in execution, and the time lapse of some 54 months
between the said application and the date of the order declaring
the
immovable property specifically executable, on the probabilities
supported the applicant’s contention that circumstances
had
changed, necessitating a re-evaluation by a court whether the
property should be sold in execution. The argument proceeds that
in
the circumstances the second applicant’s fundamental rights to
housing was infringed.
[58]
I am however not satisfied that the
applicants have on these grounds illustrated that the sale in
execution was either a nullity
or was invalid or that the applicants’
constitutional rights had been breached.
[59]
In the alternative, the applicants
contend that the second respondent, the purchaser of the immovable
property at the sale in execution
of 5 September 2013, was not bona
fide as he was aware that the applicants would seek rescission of the
judgment. In support of
this contention, the applicants rely on the
inadmissible hearsay contention that the sheriff, the third
respondent, made an announcement
prior to the sale in execution that
the applicants intended applying for rescission of the judgment
pursuant to which execution
was levied.
[60]
No supporting affidavit has been put
up by the sheriff in support of the applicants’ contentions.
The applicants contend that
the sheriff should independently have put
up an affidavit as he was a party to the proceedings. As the sheriff
did not become actively
involved in the proceedings, as is the norm,
I do not think that this contention has merit and justifies any
inference. The applicants
were free to approach the sheriff to obtain
confirmation of what they contend transpired at the sale in
execution. They elected
not do so.
[61]
The
applicants further contend that the hearsay evidence should be
admitted under section 3 of the Law of Evidence Amendment Act
[20]
.
I am however not satisfied that the requirements of section 3(1)(c)
have been met.
[62]
The
applicants’ contention that the sheriff announced the intended
rescission application is further expressly denied by the
first
respondent who puts up confirmatory affidavits by the attorneys of
both the first and second respondents, confirming the
averment that
no such announcement was made prior to the amendment of the sale in
execution
[21]
.
Albeit that such affidavits do not expressly state that those
individuals were present at the sale, if the affidavits are read
in
context, the denial is express that no such announcement was made by
the sheriff prior to the sale in execution.
[63]
There is thus no cogent evidence
before me that the second respondent, as purchaser was mala fide and
put at risk when he purchased
the immovable property at the sale in
execution.
[64]
The applicants further contend that
the sale in execution and the transfer of the immovable property in
the name of the second respondent
is a nullity as the first
applicant, the registered owner of the immovable property at the
time, had been deregistered and the
property at the time of the sale
in execution belonged to the State as bona vacantia. These
contentions have no merit.
[65]
It
is common cause that the first applicant was reinstated during or
about March 2014 whereafter the present application was brought.
The
first applicant’s reinstatement under
section 82(4)
of the
Companies Act 71 of 2008
retrospectively establishes the company’s
corporate personality and ownership of property.
[22]
[66]
For purposes of the present
application, the previous deregistration of the first applicant
cannot render the sale in execution
or the registration of the
transfer of the immovable property to the second respondent a
nullity.
[67]
I am not in the circumstances
satisfied that the sale in execution is a nullity and/or invalid and
should be set aside on the grounds
contended for by the applicants.
[68]
I
was referred to Knox NO v Mofokeng and Others
[23]
,
which concerned, inter alia, the rights of purchasers of immovable
property at sales in execution where the judgment under which
the
sale in execution was carried out was subsequently rescinded by the
first respondent.
[69]
The applicants argue that Knox is
distinguishable on the facts as the purchaser was bona fide in Knox
whereas in the present instance
the purchaser was not. For the
reasons already stated, I am not satisfied that the applicants have
illustrated any mala fides on
the part of the purchaser.
[70]
In
Knox it was further held that the fact that a judgment which had been
validly granted, is subsequently rescinded after transfer
had been
effected cannot retrospectively affect the validity of the real
agreement in respect of the transfer of the property.
To hold
otherwise would introduce an unacceptable degree of legal uncertainty
pertaining to the purchase of property at sales in
execution
[24]
.
I am in respectful agreement with these views.
[71]
I now turn to consider whether in all
the circumstances and considering the facts of the matter, the
summary judgment should be
rescinded and whether the application was
launched within a reasonable time as envisaged by
rule 42(1)(a).
[72]
The summary judgment was granted by
Van der Merwe AJ on 10 March 2009. The present application was
launched on 31 March 2014, some
5 years later.
[73]
The applicants have disavowed any
knowledge of the judgment before August 2013 and have denied receipt
of any notifications of the
judgment, writ and various sales in
execution in June 2009 and September 2013. These denials are in bald
terms.
[74]
The applicants have attempted to
explain various of the delays which occurred in the launching of the
present application. The applicants
have however in my view not
adequately explained all the relevant delays and why a rescission
application was not launched earlier
and in particular during the
very relevant period of 13 August 2013 (when on the second
respondent’s version, the applicants
became aware that judgment
had been granted against them) and 6 November 2013 (which is the
undisputed date on which the immovable
property was transferred to
the second respondent), bearing in mind that the applicants already
advised the first respondent on
5 September 2013 that such an
application would be launched.
[75]
On the applicants’ own version,
they adopted a leisurely pace in making the necessary investigations
to enable them to launch
the necessary rescission proceedings. The
applicants were aware a sale had taken place on 5 September 2013 and
that transfer of
the immovable property would follow within a
reasonable time thereafter. By 19 September 2013, the pleadings had
been made available
to the applicants’ legal representatives,
which indicated the date and nature of the summary judgment
proceedings and provided
a copy of the simple summons.
[76]
No further information was required
to enable to applicants to at least raise the deficiencies in the
summary judgment proceedings
which are raised in the present
application. The applicants would further at all material times have
been possessed of the necessary
knowledge to raise whatever other
defences they may have to the first respondents claim. At least an
undertaking could have been
sought from the first respondent not to
effect transfer before the rescission proceedings were launched prior
to the registration
of the transfer on 6 November 2013. Other
than the second applicant’s reliance on his hospitalisation
during mid November
2013, his mother’s death on 27 August 2013
and a vague reference to ‘
investigations
’,
no full and satisfactory explanation has in my view been tendered by
the applicants for the delays in this very relevant
period. The
applicants’ only attempted to launch any proceedings during
December 2013, well after the registration of the
transfer of the
immovable property to the second respondent, had already been
effected. Such delay is attributable to the applicants.
[77]
A
further factor to consider in the exercise of the discretion is the
interests of justice. As stated by Eloff DJP
[25]
:
‘
It
is in the interest of justice that there should be relative certainty
and finality as soon as possible concerning the scope and
effect of
orders of Court. Persons affected by such orders should be entitled
within a reasonable time after the issue thereof
to know that the
last word has been spoken on the subject. The power created by
Rule
42(1)
is discretionary (see Tshivhase Royal Council and Another v
Tshivhase and Another; Tshivhase and Another v Tshivhase and Another
[1992] ZASCA 185
;
1992 (4) SA 852
(a) at 862 in fine – 863A) and it would be a
proper exercise of that discretion to say that, even if the appellant
proved
that
Rule 42(1)
applied, it should not be heard to complain
after the lapse of a reasonable time
.’
[78]
In light of all the aforegoing facts
and circumstances, including the conduct of the applicant, I am of
the view that it would be
in the interests of justice not to exercise
the discretion in favour of the applicants, despite the applicability
of
rule 42(1)(a)
that the summary judgment should not be rescinded.
The applicants did not adopt a proactive approach to protect their
interests
throughout these proceedings, as is reasonably expected of
them and the application was not launched within a reasonable time
having
regard to the relevant dates.
[79]
I am fortified in this view by the
grave injustice which would occur if the transfer of the immovable
property is set aside after
the applicants had an adequate
opportunity to timeously launch rescission proceedings prior to such
transfer and the absence of
a satisfactory explanation why this was
not done timeously.
[80]
For the reasons already provided I am
further not satisfied that the applicants have established that the
sale in execution was
a nullity or invalid or that purchaser at the
sale in execution was not bona fide and that they are entitled to any
of the relief
sought.
[81]
I
accordingly make the following order:
[81.1]
The application is dismissed.
[81.2]
The applicants are directed to pay the
first respondent’s costs, jointly and severally, the one paying
the other to be absolved.
E
F DIPPENAAR
ACTING
JUDGE OF THE HIGH COURT
DATE
OF HEARING :3 February 2015
DATE
OF JUDGMENT :12 February 2015
FOR
APPLICANT :Adv C Thompson : Naidu Richen Attorneys, Johannesburg
FOR
FIRST RESPONDENT :Adv C Humphries Smit Sewgoolam Inc, Johannesburg
[1]
Any
reference to “the parties” in this judgement, is to be
read as a reference to the applicants and the first respondent
[2]
GM9,
p88
[3]
GM10,p89
[4]
GM19,
pp103-104; GM21, p108
[5]
GM23,
p111
[6]
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA
1
(SCA) at 8F-H, para [9]
[7]
1993
(2) SA 508
(Tk) at 510F-G
[8]
2007
(6) SA 87 (SCA)
[9]
at
95D-F, para [27]
[10]
[2012]
ZAJP JH (26) judgment of Wepener J, followed in Absa Bank Limited v
Janse Van Rensburg and Another
2013 (3) SA 173
(WCC) and
distinguished in Absa Bank Limited v Zalvest Twenty (Pty) Ltd and
Another
2014 (2) SA 19
(WCC), both full bench decisions
[11]
Fn
9, supra
[12]
2008
JDR 0445 C; [2008] JOL 21940C
[13]
para
[23]
[14]
Fn9,
supra
[15]
Nkata
v Firstrand Bank Ltd and Others 2014 (2) SA 412 (WCC)
[16]
Lottering
v SA Motor Acceptance Corporation Ltd
1962 (4) SA 1
(E) at 3H-4B;
Jasmat and Another v Bhana
1951 (2) SA 496
(T); First National Bank,
supra, para [3], 49D-Fl
[17]
Eg
Vosal Investments (Pty) Ltd v City of Johannesburg and Others 2010
(1) SA 595 (GSJ)
[18]
Sookdeyi
v Sahadeo
1952 (4) SA 568
(A) at 571G-572B
[19]
Menqa
and Another v Markom and Others
2008 (2) SA 120
(SCA) at para [17]
and [19] 127H-128A; 128B-C
[20]
45
of 1988
[21]
Answering
affidavit para 69.4
[22]
Peninsula
Eye Clinic Pty Ltd v Newlands Surgical Clinic and Others
2014 (1) SA
381
(WCC) para [51] 410F-I
[23]
2013
(4) SA 46
(GSJ), paras [5], [22] and [24], 49I-50C; 57F-H; 58D-I
[24]
Knox,
supra, para [24] at 58D-G
[25]
First
National Bank of Southern Africa Ltd v Van Rensburg NO and Others;
In Re First National Bank of Southern Africa Limited
v Jurgens and
Others
1994 (1) SA 677
(T) at 681E-G, followed, inter alia, in Van
der Merwe v Bonaero Park (Edms) Bpk
1998 (1) SA 697
(T)