About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 210
|
|
Standard Bank of SA Ltd v Eagle Creek Investments 522 (Pty) Ltd and Others (4837/2013) [2015] ZAGPJHC 210 (19 May 2015)
Links to summary
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
CASE NO.
4837/2013
In
the matter between:
THE
STANDARD BANK OF SA
LTD
Execution Creditor
/ Applicant
and
EAGLE
CREEK INVESTMENTS 522
First Execution
Debtor / Respondent
(PTY)
LTD
PRIME
FUND MANAGERS (PTY)
LTD
Second Execution
Debtor
PFM
MEDICAL SCHEME MARKETING (PTY) LTD
Third Execution
Debtor
MASHELE
G.
F.
Fourth
Execution Debtor
JUDGMENT
OPPERMAN
AJ
:
[1]
The Applicant seeks, pursuant
to Rule 46(1)(a)(ii)
[1]
of the Rules of Court, to have certain immovable property owned by
the Respondent, Erf [...] [...] (“Erf [...]”), declared
executable in order for the Applicant to execute a judgment obtained
by the Applicant against the Respondent.
[2]
The Application is opposed by
the Respondent as well as the second, third and fourth execution
debtors (hereinafter collectively
referred to as ‘the
Debtors’).
AUTHORITY
OF DEPONENT AND PERSONAL KNOWLEDGE
[3]
The authority of the deponent
to the Applicant’s founding affidavit was challenged by the
Debtors as well as her personal
knowledge of the facts she deposed
to.
.
[4]
In determining the question
whether a person has been authorised to institute and prosecute
motion proceedings, it is irrelevant
whether such person was
authorised to depose to the founding affidavit. The deponent to an
affidavit in motion proceedings need
not be authorised by the party
concerned to depose to the affidavit. It is the institution of the
proceedings and the prosecution
thereof that must be authorised. The
remedy of a respondent who wishes to challenge the authority of a
person allegedly acting
on behalf of the purported applicant is not
to challenge the authority in the answering affidavit but instead to
make use of Rule
7(1) of the Uniform Rules of Court
[2]
.
[5]
The Debtors did not avail
themselves of the procedure provided for in Rule 7(1), and it is thus
not open to them to challenge the
authority of the deponent to the
Applicant’s founding affidavit either in regard to deposing to
affidavits or in regard to
instituting the application. During
argument this line of attack was abandoned.
[6]
The Debtor’s attack on
the deponent’s personal knowledge is without merit. In this
matter, the personal knowledge of
the deponent to the Applicant’s
founding affidavit is not relevant; what is relevant is whether or
not the Applicant has
made out a case on the papers and whether or
not the Debtors have disclosed a defence to the relief sought by the
Applicant.
COMMON
CAUSE FACTS
[7]
On 5 March 2013 the Applicant
obtained judgment against the Debtors in terms of a written agreement
(‘the agreement’)
concluded between the Applicant and the
Debtors on 13 December 2011 and made an order of court on 5 March
2013 under case number
2013 / 04837, in terms of which agreement:-
7.1.
The Debtors jointly and
severally acknowledged their indebtedness to the Applicant in the
total amount of R4 874 669,
84.
7.2.
The Debtors undertook to make
payment in full of their acknowledged indebtedness by the last day of
March 2012.
7.3.
In the event of a breach of the
agreement by the Debtors, the Applicant was authorised to dispose of
two immovable properties owned
by the Respondent, Portion 1 of Erf
[...] Louis Trichardt Township (“Erf [...]”) and Portion
6 of Erf [...] Pietersburg
Township (“Erf [...]”), and to
appropriate the proceeds of the sale thereof to the indebtedness of
the Debtors to the
Applicant.
7.4.
A certificate signed by any
manager of the Applicant whose appointment and authority it would not
be necessary to prove recording
the indebtedness of the Debtors would
be
prima facie
proof of such indebtedness.
[8]
The Respondent is the owner of
the immovable property (Erf [...]) that the Applicant seeks to have
declared executable. The Debtors
breached the agreement in failing to
make payment as stipulated in the agreement. Erf [...] and Erf [...]
were sold by the Applicant
and the proceeds thereof reduced the
indebtedness of the Debtors to R217 843,77 plus interest thereon
at the rate of 9% per
annum calculated daily and compounded monthly
in arrears from 3 January 2014 to date of payment, and R3 715 3121,70
plus
interest thereon at the rate of 11% per annum calculated daily
and compounded monthly in arrears from 25 December 2013 to date of
payment (total of R3 933 165, 47).
[9]
The Respondent has no movable
assets to satisfy the judgment obtained by the Applicant against the
Respondent and the Respondent’s
indebtedness to the Applicant,
as evidenced by the Sheriff’s returns of non-service and a
nulla bona
return of service in respect of the warrants of execution issued
against the Respondent and the other execution debtors.
[10]
Erf [...] belongs to the
Respondent, a company, and is not the primary residence of the fourth
execution debtor. The Applicant also
has a mortgage bond over Erf
[...] and the Respondent is indebted to the Applicant pursuant
thereto.
[11]
The Applicant does not seek to
execute against the Respondent’s immovable property pursuant to
the agreement, which agreement
does not refer to the immovable
property. Instead, the premise of the Applicant’s application
is Rule 46(1)(a)(ii) and the
judgment that the Applicant obtained
against the Respondent constituted by the agreement that was made an
order of court, the judgment
not being settled and the Respondent not
owning any movable assets to satisfy the judgement.
[12]
The Debtors confined their
argument in court to three issues and did not persist with all the
arguments raised in their heads of
argument. I deal with them
hereunder.
Agreement
made an order of court – Not a judgment
[13]
The Debtors argued that Rule
46(1)(a)(ii) does not find application where the ‘judgment’
relied upon emanates from an
agreement which was made an order of
court by consent between the parties. No authority was referred to
for purposes of this argument.
It is difficult to understand why an
agreement which was made an order of court would not constitute a
judgment for purposes of
the Rule.
Declaration
of property executable only after movable property has been excussed
[14]
In
Ledlie
v Erf 2235 Somerset West (Pty) Ltd
1992 (4) SA 600
(C) it was stated at 601H:
“
.
. . It is also clear that a Court may declare immovable property
executable if it has been shown to the satisfaction of the Court
that
the debtor does not have sufficient movable property to satisfy the
writ.
Cape Town Council v
Estate Jaliel
1911 CPD 11
;
Lansdowne Concrete, Etc, Co
v Davids
1927 CPD 132
;
Dorasamy v Messenger of the
Court, Pinetown, and Others
1956 (4) SA 286
(D) at 290C-F.
”
[15]
In
Absa
Bank Ltd v Ntsane
[2006] ZAGPHC 115
;
2007 (3)
SA 554
(T) the following was stated at para [88]:
“
[88]
The Court faced with such an application should refuse to grant such
an application unless and until
the plaintiff has persuaded the Court
by acceptable evidence that no other reasonable alternative exists to
enforce its right.”
Erasmus
Superior Court
Practice
B1 - [...] /
336
[16]
With reference to Rule
46(1)(a)(ii), the Debtors have contended that despite the production
of a
nulla bona
return, the Applicant has not demonstrated that the Debtors have no
movable or other assets other than Erf [...] to satisfy the
Applicant’s claim.
[17]
The Debtors did not present any
evidence of their own to support this proposition but instead
referred to a certificate of indebtedness
annexed to the founding
affidavit in which reference is made to an Audi Q7 3.0 TDI VS Quattro
(‘the Audi’). The Audi
was the subject matter of an
instalment sale agreement which agreement was part of the total
indebtedness and formed part of the
settlement reached, which was
made an order of court.
[18]
There is no evidence at all
that the Audi is still in the possession of the Debtors. If it were,
one would have expected the Debtors
to say so under oath. The
deponent to the answering affidavit is Mr Gezani Freddy Mashele, the
Fourth Execution Debtor. The
nulla
bona
return records per
(the Sheriff of Brits speaking) the following: ‘
Mr
Mashele informed that the 1
st
,
2
nd
and 3
rd
Defendants no longer exist and that he has no movable/disposable
property wherewith to satisfy the amount of the Writ or any part
thereof
”. This, of
course, constitutes
prima
facie
proof. The Debtors
elected not to place any evidence before this court to counter the
factual accuracy of the
nulla
bona
return.
[19]
The court was also referred to
a letter written by applicant’s attorney which informs that
certain furniture would be left
outside the property if it was not
going to be collected by a certain time on 14 December 2012. The
exchange between the Sheriff
and Mr Mashele quoted previously,
occurred on 7 May 2013. Any furniture which might still have been
available as at 7 May 2013
was not disclosed by Mr Mashele to the
Sheriff nor did the Debtors place any evidence before this court to
suggest differently.
[20]
The Applicant has filed an
affidavit in terms of Chapter 10.17 of the Practice Manual. The
property is not a primary residence.
This court is satisfied that on
the evidence before it, the Applicant has demonstrated that the
Debtors have no movable or other
assets other than Erf [...] to
satisfy the Applicant’s claim.
Breach
of the agreement
[21]
The Debtors deny that the
agreement was breached. This denial is bald and unsubstantiated. A
robust approach is required and the
version is rejected.
[3]
This is warranted as :
21.1.
The Debtors have never
previously raised the denial of the breach;
21.2.
The parties agreed in terms of
the agreement which was made an order of court that any certificate
issued under the signature of
any manager of the applicant, shall be
prima facie proof, not only of the amount owing but also of the fact
of the breach of such
agreement: and
21.3.
In the event of a breach of the
agreement by the Debtors, the Applicant was authorised to dispose of
two immovable properties owned
by the Respondent, Erf [...] and Erf
[...], and to appropriate the proceeds of the sale/s thereof to the
indebtedness of the Debtors
to the Applicant. This occurred. The
Debtors did not apply to interdict these sales nor to set them aside
once they had occurred.
It can safely be assumed that this did not
happen as the Debtors were in breach as alleged.
[22]
Something was sought to be made
of the incorrect reference in paragraph 20 of the agreement, to
paragraph 19. Paragraph 20 is the
breach clause and provides that if
payment ‘referred to in paragraph 19’ is not made on due
date, the balance of ‘the
indebtedness’ would become due
and payable. The reference to paragraph 19 is clearly an error and
should be paragraph 18.
Any confusion which might exist is removed
when regard is had to clause 4 which defines ‘indebtedness’
as ‘The
Eagle Creek current account, the loan account, the
Prime Fund account, the VAF account 40, the VAF account 41 and the
VAF account
36’. It is clear that in the event of a breach, all
monies owing would become payable.
CONCLUSION
[23]
The Applicant is accordingly
entitled to the relief sought by it.
ORDER
[24]
I accordingly grant the
following order:
24.1.
Erf [...] [...], Registration
Division LT, Province of Limpopo, measuring 1178 square meters in
extent and held under title deed
of transfer T16453/2007, is declared
executable.
24.2.
The registrar is authorised to
issue a warrant of execution in respect of the immovable property
described in paragraph 24.1
hereof.
24.3.
The Respondent, 2
nd
,
3
rd
and 4
th
Execution Debtors are to pay the costs of this application as between
attorney and client, jointly and severally, the one paying
the other
to be absolved.
___________________________
I OPPERMAN
Acting Judge of the High Court
Heard: 13
May 2015
Judgment
delivered: 19 May 2015
Appearances:
For
Applicant:
Adv Ho’Lin
Attorneys:
Jason Michael Smith
Inc
For
Respondent: Adv LCM Morland
Attorneys:
Myburgh Attorneys
[1]
“46 Execution - Immovables
(1)
(a) No writ of execution against the immovable property of any
judgment debtor shall issue until-
.
. .
(ii)
such immovable property shall have been declared to be specially
executable by the court
or, in the case of a judgment granted in
terms of rule 31 (5), by the registrar: Provided that where the
property sought to be
attached is the primary residence of the
judgment debtor. no writ shall issue unless the court, having
considered all the relevant
circumstances, orders execution against
such property.”
[2]
See
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA) para [14]-[16] at 206, 207;
Eskom
v Soweto City Council
1992 (2) SA 703
(W) at 705C-J;
Ganes
and Another v Telecom Namibia Ltd
2004 (3) SA 615
(SCA) para [18]-[19] at 624-625;
ANC
Umvoti Council Caucus and Others v Umvoti Municipality
2010 (3) SA 31
(KZP) para [27], [28] at 42, 43;
FirstRand
Bank Ltd v Fillis
2010 (6) SA 565
(ECP) para [12], [13] at 568, 569; unreported
judgment of Opperman AJ,
FirstRand
Bank Limited v Home Build Investments and Marketing Services (Pty)
Limited, C B Azar
case no 2013 / 06030, Gauteng Local Division, Johannesburg.
[3]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E - 635C;
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para [12], [13] at 275, 376;
Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading
(Pty) Ltd
2011 (1) SA 8
(SCA) para [20], [21] at 14;
Renier
Nel Inc and Another v Cash On Demand (KZN) (Pty) Ltd
2011 (5) SA 239
(GSJ) at para [30], pp 245, 246.