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[2016] ZAGPJHC 369
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Zanazo v Firstrand Bank Limited t/a First National Bank (27863/14) [2016] ZAGPJHC 369 (2 November 2016)
SAFLII
Note:
Certain
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:
27863/14
Not
reportable
Not
of interest to other judges
Revised.
In the matter
between:
ZANAZO,
ESTHER
NOMHLE
Applicant
and
FIRSTRAND BANK LIMITED
t/a
FIRST NATIONAL
BANK
First
Respondent
MMAMANE
DANIEL
RAMMAWI
Second
Respondent
REGISTRAR
OF
DEEDS
Third
Respondent
JUDGMENT
SUMMARY
Urgent application to interdict
transfer of immovable property pending rescission application.
-
Arrears at April 2014
amounting to R14 018,69.
-
Applicant sought to cancel
agreement and claim full amount.
-
Agreement to settle
arrears breached by applicant.
-
Matter set down again in
2016.
-
Applicant alleging
R14 018,69 arrears had been paid off and therefore Respondent
was obliged to issue a new section 129 notice
and not obtain default
judgment.
-
Further arrears incurred
since R14 018,69 arrears paid.
-
Respondent entitled to
proceed for judgment.
-
Agreement only re-instated
in terms of
Nkatha v
FirstRand Bank limited
2016 (4) SA 257
(CC)
,
if full arrears paid.
-
Res judicata
– previous application for interdict of sale in execution which
application was dismissed on same grounds.
-
Application dismissed with
costs.
WEINER,
J
:
[1] The applicant seeks to interdict
the transfer of an immovable property situate at Erf […] South
Kensington Township,
Gauteng (the property) pending her application
for rescission of the judgment granted against her in December 2015
(the judgment).
[2] The applicant alleges that the
matter is urgent as the property has now been sold and transfer can
take place at any time.
BACKGROUND
[3] The first respondent issued a
notice in terms of section 129 of the National Credit Act (NCA) on
11
th
April 2014 in respect of arrears owing by the
applicant in the sum of R14 018,69. In July 2014 the first
respondent sought
to cancel the agreement and claimed the accelerated
amount.
[4] The applicant made certain
arrangements to pay the amount and the application for default
judgment was not proceeded with.
[5] The first respondent alleges that
the applicant failed to settle the arrears in terms of the agreement
and the applicant for
default judgment was set down again.
[6] The respondents’ contention
is that by the time the matter was set down again she had paid the
±R14 000,00 arrears
which was owing as at April 2014 and
therefore the applicant was not entitled to proceed in an application
based on that section
129 notice.
[7] Applicant’s contention is
that the first respondent was obliged to issue a fresh section 129
notice in respect of
what she refers to as “new arrears”.
[8] The first respondent contends that
the applicant admits that the account has been in a constant state of
arrears since August
2013. It contends that when the applicant
alleges that she paid up the arrears of ±R14 000,00 she does
not set out that
payments were made erratically and towards the
balance owing whilst the account remained in arrears as payments fell
due. The ±R14 000
was not paid in one amount to settle
the arrears. It was paid over a period of time, whilst mortgage bond
payments fell due for
payment in respect of months after April 2014.
The applicant’s account accordingly at all times remained in
arrears.
[9] The first respondent disputes the
urgency of the matter. It submits that the applicant has been
aware of the judgment
against her since service of the warrant of
attachment on the 26
th
February 2016 and only applied for
rescission six months later. The first respondent also submits that
the relief being sought
is
res
judicata
. The reason for
this is that the applicant launched an earlier urgent application
seeking the same relief but pending the sale
in execution. That
application was heard by Matojane J on the 6 September 2016 and was
dismissed with costs.
[10]
The first respondent sets out that this case falls precisely within
the prerequisites for reliance upon the
res
judicata
principle. See
National
Sorghum Breweries (Pty) Limited t/a Vivo Africa Breweries v
International Liquor Distributors (Pty) Limited
[1]
.
The phrase “the same grounds” has been expressed to mean
“the same issue should have been adjudicated
upon”.
See
Horowitz
v Brock
[2]
.
The applicant states that plea of
res
judicata
is not applicable as there is no final order. However, the applicant
has applied for leave to appeal against the judgment of Matojane
J
which it did on the 7
th
September 2016. This she could not have done unless the judgment was
final.
[11] The first respondent contends
that the applicant’s allegation that she has a
prima facie
right of ownership of the property was the same subject of the urgent
application that came before Matojane J on the 6
th
September 2016. The defence which the applicant seeks to rely
on is that the credit agreement was reinstated after the arrears
of
±R14 000, 00 were paid. Matojane J held that this cause of
action was ill-founded and accordingly he dismissed her application.
[12] The applicant argued that as the
relief sought is different, that is interdicting the transfer of the
property pending finalisation
of the application of rescission, that
the matter is not
res judicata
. This she state is because
Matojane J had to decide whether or not to stay the sale in
execution.
[13] However, what the applicant’s
argument fails to take into account is that it is not the relief
which renders the matter
res judicata
but the basis for the
relief sought. This cause of action was considered by Matojane J and
dismissed.
[14]
Secondly, the applicant cannot dispute that the account has been in a
constant state of arrears since August 2013. The
applicant
cannot argue that because an amount of ± R14 000,00 was paid
into the account, that this amount settled the arrears
and that new
arrears have been established, which require the first respondent to
commence with a new Section 129 Notice and application.
The
applicant’s contention, making payment in an amount equal
to an arrear amount some months later and in erratic
and unequal
payments, which payments may at some point equal the arrears of ±
R14 000,00, does not take into account the
fact that the arrears
escalate on a monthly basis, as the amounts falling due are not
paid. The credit agreement was therefore
not reinstated.
It can only be reinstated if payment of the full arrears is made.
See
Nkatha
v Firstrand Bank Limited
[3]
.
[15] Although the judgment of Matojane
J is not yet available, it is referred to in correspondence between
the parties. According
to such correspondence the learned judge
found:
15.1 that the applicant’s
defence raised in the urgent application heard on the 6
th
September was not sustainable;
15.2 the rescission of judgment
application was not brought in good faith; and
15.3 the rescission of judgment
application was nothing more than an attempt to have the sale
in execution postponed again.
[16] The first respondent accordingly
contends that the court has already made a finding on the
prima
facie
right upon which the applicant relies for interdictory
relief.
[17] even if the matter was not
res
judicata
, the defence rasied is unsustainable for the reasons set
out above. The application of the applicant accordingly must fail.
The
first respondent seeks costs on a punitive scale
de bonis
propriis
against the applicant’s attorney on the basis that
they were informed that the issue was
res
judicata
in
correspondence and that the allegations placed in the affidavit are
factually incorrect to the knowledge of the applicant and
her
attorney.
[18] The applicant attempts to explain
such factual inaccuracies by stating that her legal team did not
understand the figures reflected
on the bank statements.
However, the first respondent contends that the detailed information
and calculations were set out
in the answering affidavit filed in the
applicant’s first application but despite same she repeated
them in the present application.
[19] However, this Court is unable to
find that the applicant herself is not the author of her own
misfortune and that her attorney
is simply following her
instructions.
[20] There was also an order that
costs be reserved in respect of the application launched on the 5
th
October 2016 which was postponed for the applicant to join the
Registrar of Deeds.
Accordingly, the following order is
made:
The application is dismissed with
costs including the costs reserved on the 5
th
October
2016.
_______________________________
S WEINER
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances
For
the Plaintiff:
Advocate
Z Feni
Instructed
by:
Faku
Attorneys
For
the First Respondent:
Mr
C Cilliers
Instructed
by:
Charl
Cilliers
Date
of hearing:
26
October 2016
Date
of Judgment:
02
November 2016
[1]
(72/99)
[2000] ZASCA 70
;
2001 (2) SA 232
(SCA);
[2001] 1 All SA 417
(A) (28
November 2000) at 239F
[2]
(168/85)
[1987] ZASCA 126
;
[1988] 2 All SA 15
(A) (5 November
1987) 1988 (2)
SA 160
at 179G
[3]
2016
(4) SA 257
(CC) at 263C-D, 278E and 284G-H