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[2017] ZAGPJHC 30
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Absa Bank Limited v M and Another (31305/2016) [2017] ZAGPJHC 30 (28 February 2017)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 31305/2016
Reportable:
NO
Of
interest to other judges: NO
Revised.
28
February 2017
In
the matter between:
ABSA
BANK
LIMITED
Applicant
And
M
S
First
Respondent
M M
E Second
Respondent
JUDGMENT
RATSHIBVUMO
AJ
:
1.
This is an opposed application for summary judgment wherein the
applicant seeks an order in the following terms:
1.1
Payment of the amount
of R138 942.34;
1.2
Interest in the above
amount, calculated at the rate of 9.00% per annum, capitalized
monthly, from 25 August 2016 to the date of
payment;
1.3
For an order declaring
the following immovable property specially executable: Erf […]
Diepkloof Extension Township, Registration
Division I.Q. Province of
Gauteng Measuring 455 square metres held under deed of transfer
T38229/2001 subject to the conditions
contained therein and specially
to the reservation of mineral rights.
1.4
Costs of suit on
attorney and client; and
1.5
Further and/or
alternative relief.
2.
The respondent filed an affidavit in opposing the application in
which he
inter alia
avers that he believes the value of the house is currently in excess
of R1 million; that he and the three children aged 25, 18
and 10
reside in the property; that he and the second respondent are in the
process of divorce and they have agreed to have the
property sold and
have utilize the proceeds to pay up the debt owing to the applicant.
He concluded by making an offer to increase
his monthly instalment
from R3 209.00 by R800.00 to R4 009.00 to reduce and cover the amount
in arrears.
3.
The matter was set down for hearing on 17 February 2017. On that
date, the applicant asked that the application be postponed
until
after the date set down for the divorce matter, the details of which
he did not have. This was refused in that I was not
persuaded as to
the link between the two matters or how the divorce matter would have
any impact on this application. Upon arguing
the merits of the
summary judgment application, counsel for the respondent was quick to
concede that there was no
bona
fide
defence in the
affidavit by the respondent. He however went on to submit that then
order sought by the applicant was not just and
equitable in the
circumstances.
4.
Under normal circumstances, in application for summary judgment, the
court would have to either grant the summary judgment or
leave to
defend. But the foreclosure request invokes Practice Directive
10.17.2 of this division. In so doing, the court asks the
question as
to whether the order sought is just and equitable. In exercising its
judicial oversight, court has a duty to balance
the duty the
respondent has to service his debt, the financial difficulties he
finds himself in; the amount in arrears and the
bond history.
[1]
5.
At the time the summons was issued in September 2016, the total
amount in arrears was R24 496.09.
[2]
This had gone up to R33 619.25 by 12 December 2016.
[3]
A payment of just over R4 000.00 was received since and the amount in
arrears is now in the region of R32 000, as presented by
the
applicant’s counsel. One interesting aspect is that while the
respondent is adamant that he can secure a buyer for a
good price
than it otherwise would if it was sold by the sheriff following a
court order, he has not secured any offer as yet.
From the address by
his counsel it would appear confusion reigns as to whether he could
do this before the divorce or it could
be part of the divorce
settlement hence the earlier request for the application to be heard
after the divorce.
6.
While I am concerned over the amount in arrears which equals to just
over 9 months, it is the other factors that make me have
reservations
on whether this order would be just and equitable at this stage. The
respondents have faithfully serviced this bond
since 22 May 2001. The
respondents have made the payments over the period that exceed three
quarter of the total period as per
the credit agreement. The times
that the respondents started to default on their payments coincide
with their divorce, a clear
indication that the divorce also played a
role. Is it unreasonable for the first respondent to ask for
indulgence so he could pay
the arrears or have the house sold at
market value in the circumstances of this case? I do not think so.
The amount in arrears
is still less than the arrears for a year and
the total amount owing is far less than the principal debt. If the
respondents succeed
in his attempts to sell the house on their own,
everyone walks away a winner, the applicant and the respondent.
Granting the summary
judgment would have only one winner and it would
be very unfair to the respondents given all the above.
7.
In the result, I make the following order:
7.1
The matter is postponed
sine die;
7.2
The matter may not be
set down before the expiry of 6 (six) months from the date of this
order;
7.3
And that notice of set
down should again be served on the Respondent.
7.4
The respondent is
ordered to pay the costs of this application.
_____________________
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date
Heard: 17 February 2017
Reasons
Delivered: 28 February 2017
For
the Applicant: Adv. L Van Rhyn van Tonder
Instructed
by: Lowndes Dlamini,
Johannesburg
For
the Respondent: S Ncube
Instructed
by: Lindsay Keller Attorneys,
Johannesburg
[1]
See
Sebola and
Another v Standard Bank of South Africa LTD and Another 2
012
(5) SA 142
(CC) &
Absa
Bank Limited v Lekuku
(32700/2013) [2014]
ZAGPJHC 244 (14 October 2014)
[2]
See parsticulars of claim on p. 25 para 8.
[3]
See Chapter 10.17 affidavit on p. 3 para 4.4