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[2016] ZAGPJHC 252
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Absa Bank Limited v Shivambu and Another (41691/2010) [2016] ZAGPJHC 252 (12 September 2016)
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personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
41691/2010
In
the matter between:
ABSA
BANK
LIMITED
Applicant
and
SHIVAMBU,
BRUCE First
Respondent
RUDZANI,
RAMOVHA
Second Respondent
JUDGMENT
Van
der Linde, J:
[1]
In this matter the applicant, a bank,
applies for an order declaring the fixed property which was bonded to
it as security for loan
to the first and second respondents to buy
it, executable. A money judgment for the accelerated total
outstanding amount of R400 169,21
was granted by default more
than four years ago on 27 March 2012 against both respondents jointly
and severally, but the prayer
for executability was postponed sine
die. It is now before this court. Only the first respondent, Mr Bruce
Shivambu, appears to
defend. The second respondent does not, and
nothing further is known about his current whereabouts.
[2]
The applicant’s case is simple. In
the affidavit supporting the application to declare the property
executable, it explains
that the loan was obtained to buy the
property. The bond was given as security for repayment of the very
loan. The loan provided
for a contractual entitlement, in the event
of default and judgment being obtained, to ask that the property be
declared executable
without first executing on the movable assets.
[3]
It says that the current accelerated total
outstanding amount is R707 289. The arrears on the loan are
R428 664.77. The
last payment made on this account was R2 850 on
13 December 2012. During the three years 2010, 2011, and 2012, Mr
Shivambu paid
only R28 750 in respect of the loan instalments.
Thereafter he has paid nothing for the past three years and eight
months.
No further amounts were received on the account.
[4]
In the result, the respondents have had the
benefit of the loan capital for the past three and a half years
without having paid
any amount towards reduction of the debt.
[5]
Mr Shivambu represented himself in court.
He was completely open and honest about the facts. What he said in
court was already contained
in the two affidavits he had filed: his
answering affidavit, as well as a further affidavit of 24 July 2016.
[6]
He explained that the house was his primary
residence. When he bought it, it was to put a roof over the heads of
his young family.
He has a wife and three children. He lost his
employment in 2010 and could not service the instalments.
[7]
He went to see the bank in 2010. They
struck an arrangement, to assist him, whereby he was required
for six months to pay
only R2200 per month of the monthly
instalments; this represented about 50% of the full monthly
instalments. He tried to but could
not keep this up. He failed at the
fifth instalment, since at the time he was still unemployed.
[8]
On 18 October 2010 the bank sued him. The
arrears were then only R34 647.79. A year later, on 3 October
2011, he obtained employment
with BHP Billiton at a manganese mine in
Hotazel in the Northern Cape. His package was R109 904 per
annum. He is still with
them, and has since advanced to production
manager. He approached the bank in 2011 after he obtained employment
to come to some
arrangement as regards the arrears, but was told that
the matter is with the legal department, and that he should defend
himself
in court.
[9]
He has, since then, attended every court
hearing of the matter, despite the inconvenience of having to travel
from Hotazel to be
able to do so.
[10]
I asked Mr Shivambu why he has not paid any instalments at all since
December 2012. He said it was because he could not extract
an
undertaking from the bank that had he done so, they would not proceed
to have the house sold anyway. I asked him whether during
the last
three years and eight months he has been putting away, perhaps in a
savings account, the amount of the monthly instalments
in the
meantime.
[11]
He said that he tried to do so, but he could not keep up with it,
because he had other debts to pay.
[12]
The bank argued that if an executability order were granted, it would
not be the end of the road for Mr Shivambu. He could
still obtain
finance elsewhere and pay all arrears before the sale in execution
takes place, in which event the loan agreement
would be reinstated,
since it has not been cancelled.
[13]
In considering all the relevant circumstances, one takes into account
that Mr Shivambu’s family home is at stake. One
takes into
account that he has three minor children who live there and depend on
him so protect their home. One takes into account
that if evicted, he
would have to find accommodation elsewhere, probably in the form of
rental accommodation.
[14]
The two problems that appear to be insurmountable are the following.
First, Mr Shivambu cannot afford the monthly loan repayments.
That is
clear from his answer to the question why he has not been putting
away those amounts for the past three years and eight
months; that he
tried to do so, but could not manage because of other debts.
[15]
Second, the arrears that have accumulated are more than half the
capital amount outstanding. If Mr Shivambu cannot service
the
currently monthly instalments, he will not be able to pay up the
arrears and then continue servicing the loan.
[16]
The applicant is a major bank whose business includes providing
finance for home acquisitions. It will not be able to continue
operating in that field unless that business remains profitable. Of
course, not all debts are good; some are bad, and that fact
has not
brought the bank down to its knees.
[17]
But it would be naïve to ignore the insidious effect that bad
debts have on the financial viability of institutions. This
country
has seen that, most recently, in a bank that has been placed under
curatorship, and according to the financial press bad
debts were a
major contributor to its demise.
[18]
In striking a balance I propose granting the order sought, but
suspending its execution for an appropriate period. In the result
I
make the following order:
(a)
The immovable property described as Erf
[5240] B. A. E. [...] Township, Registration Division I.R., Province
of Gauteng, Measuring
266 (two hundred and sixty six) square metres,
held by the first and second respondents under deed of transfer no.
T179797/2009,
is declared specially executable.
(b)
The Registrar of the court is authorised to
issue a writ of execution.
(c)
The respondents are directed to pay the
costs of the application on a scale as between attorney and client.
(d)
The order in paragraphs (a), (b) and (c)
above is suspended until 30 November 2016.
WHG van der Linde
Judge, High Court
Johannesburg
For
the applicant: Adv. M. Reineke
Instructed
by: Strauss Daly Incorporated
10
th
Floor – World Trade Centre
Cnr
Lower Road & West Road South
Green
Park, Sandton
Johannesburg
Tel:
010 201 8600
Ref:
L Acker/ABS697/0912
For
the first respondent: In person
5240
Umgana Street Birch Acres
Ext
3
Kempton
Park
Tel:
079 036 1310
Email:
bruce.shivambu@bhpbiliton.com
Date
argued: 6 September, 2016
Date
of judgment: 12 September, 2016