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[2017] ZAGPJHC 97
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RCS Home Loans Warehouse (Pty) Ltd v Fakude and Another (2015/19591) [2017] ZAGPJHC 97 (30 March 2017)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2015/19591
Not reportable
Not of interest to other judges
Not revised
30/3/2017
In the matter
between:
THE RCS HOME LOANS WAREHOUSE
(PTY)
LTD
Applicant
and
FAKUDE,
ISAAC
MHIKELELI
First
Respondent
FAKUDE,
RENEE
NOMBULELO
Second
Respondent
JUDGMENT
FISHER
J
:
[1] This is an application for the
eviction of the respondents from the residential dwelling […]
M. Street, Kwa Thema Ext
1, Springs, Gauteng (“
the
property
”). The respondents are married in community of
property. The property forms part of their community estate.
[2]
The background to this application is as follows:
1.
On
15 April 2013 a summons was delivered to the respondents based on
indebtedness of the respondents to the applicant arising out
of a
written loan agreement.
This action was not
opposed. The applicant alleges that the first respondent, Mr Fakude
personally dealt with the applicant’s
attorneys by telephone in
relation to a possible settlement of the action and engaged
attorneys. There is evidence that these attorneys
sought
documentation from the applicant’s attorneys in relation to the
action.
2.
On
30 September 2013 judgment was taken by default against the
respondents. An application in terms of rule 46 was subsequently
brought on behalf of the RSC Trust (an associated entity of the
applicant) as bondholder of the property, which application was
granted. The sheriffs return of service in repect of this rule 46
application shows that it was served personally on the second
respondent, Mrs Fakude. The respondents did not oppose this
application either and on 30 May 2014 the property was declared
specially executable. On 11 August 2014 the property was judicially
attached. The writ of attachment was also served personally
on
Mrs Fakude.
3.
The applicant gave details of separate telephone
calls received from each of the respondents in terms of
which they
both asked that the execution process be stopped.
An attorney then made telephonic contact with the applicant’s
attorneys on behalf of the respondents on 3 October 2014 and advised
the applicants attorneys that he had been instructed to attend
to
stop the planned sale in execution. Notwithstanding this approach, no
steps were taken to halt the sale and the property was
sold in
execution to the applicant on 15 October 2014. In December 2014 the
respondents were given notice to vacate the property.
4.
On
12 March 2015 the applicant took transfer of the property. On 29 May
2015 this eviction application was launched and was served
personally
on Mrs Fakude.
[3]
Against this background, the defence of Mr Fukude is essentially that
he had no knowle
dge
of the judgement debt and the execution process that resulted in the
sale in execution of the property until he found the eviction
application pinned to the door of the property on his return from
work ‘
one
day
’.
[4] Central to his version is that the
events leading up to the sale of the property were orchestrated and
dealt with by his
wife without his knowledge. He alleges that the
loan agreement was not signed by him and that his signature thereon
was forged.
He denies any knowledge of or involvement in the legal
processes which are described until he obtained notice of this
eviction
application. This appears to have occurred in June 2015.
[5]
This
elaborate version of fraud needed to be properly and fully explained
in the context of the detailed allegations in relation
to Mr Fakude’s
involvement in the process put up by the applicant. It is
compelling that such allegations are, for
the most part, borne out by
contemporaneous correspondence and notes of employees of the
applicant and its attorneys .
[6] Mr Fakude
brought a counter application in which he sought extensive relief -
being the postponement of the eviction application
sine die
pending the finalisation of an application to rescind the default
judgement and an order that all execution proceedings be stayed.
Mr
Fakude thus had the right to answer to the detailed allegations put
forward by the applicant in relation to his engagement with
the
process and, more importantly, was himself required to make out a
case for the relief claimed by him.
[7] The relief
sought in this counter application gives further disquiet in that it
is, even on the version of Mr Fakude, brought
very late in the
process. On his version he found the eviction application pinned to
his door during June 2015. The fact that he
has taken no steps for
some 21 months to rescind the judgment was not explained. This is
despite his being represented by attorneys.
Furthermore, the relief
that is sought relating to the staying of execution processes loses
sight of the fact that such processes
are complete at this stage,
[8] I heard argument on behalf of Mr
Fakude and the applicant and reserved judgment. It was subsequently
brought to my attention
on the same day that Mrs Fakude had been in
court all along and that she wished to make representations.
[9] I thus reconvened court and heard
Mrs Fakude in person. She told me that she and Mr Fakude were in the
process of divorcing
and that Mr Fakude no longer lived in the
property. She stated that she had taken advice from the Johannesburg
Justice Centre and
confirmed she was not opposing the appplication
for eviction. This was further confirmed by letter from the
Johannesburg Justice
Centre the which was handed up by Mrs Fakude. It
is not in dispute that the parties are in the process of divorcing
but I was told
from the bar by counsel for Mr Fakude that his
instructions are that Mr Fakude still resided in the property. Mrs
Fakude informed
me that she was of the view that she would, from the
divorce distribution, be in a position to obtain funds especially
from the
pension funds avialabe from the joint estate and hoped
to make an offer to purchase the property.
[10]
The
general rule in
Plascon-Evans
Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A)
is
that final relief may be granted only if the facts as stated by the
respondents, together with the admitted facts in the applicant’s
affidavit, justify the granting of such relief. However if the court
finds the version of the respondent
to
be fanciful and untenable, then it may be rejected on the papers by
adopting a robust, common-sense approach. (see: Soffiantini
v Mould
1956 (4) SA 150
(E) ;
Truth
Verification Testing Centre CC v PSE Truth Detection CC
1998
2 SA 689
(W), at 699F–G. See also
NDPP
v Geyser
[2008]
ZASCA 15
(25 March 2008), at para 11)
[11]
In my view, Mr Fakude has not made out his defence or his
counterclaim in a manner that is tenable or credible. Accordingly,
I reject the version put up by Mr Fakude. The approach taken by him
emerges as nothing more than a stratagem to delay the eviction
proceedings.
[12] Given the circumstances in this
matter, including the fact that the respondents have lived in the
property for approximately
30 years, they should be allowed until 30
June 2017 to vacate the property.
I
thus grant an order as follows
:
1.
The First and Second Respondents are to vacate
the property described as
[…] M.
Street, Kwa Thema Ext 1, Springs, Gauteng
by
30 June 2017 -
failing
which the sheriff or his deputy is authorised to evict them from the
property.
2.
The First respondent is to pay the costs of the
application.
________________________________
D FISHER
HIGH COURT JUDGE
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date
of Hearing:
09 March
2017
Judgment
Delivered:
30 March
2017
APPEARANCES:
For
the Applicant:
Adv A
W Pullinger instructed by Moodie & Robertson
For
the First Respondent:
Adv
A P Bruwer instructed by Kitching Attorneys
For
the Second Respondent:
No
opposition