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
>>
2017
>>
[2017] ZAGPJHC 390
|
|
Nedbank Limited v Schamrel (07374/2016) [2017] ZAGPJHC 390 (28 November 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 07374/2016
Not
reportable
Not
of interest to other judges
Revised.
23
November 2017
NEDBANK
LIMITED
Applicant
and
SCHAMREL,
JOHAN
Respondent
Heard
on:
16 November 2017
Delivered
on:
28 November 2017
JUDGMENT
DE
VILLIERS AJ
:
[1]
This matter was called on the first day of
the opposed motion week as no heads of argument were delivered on
behalf of the respondent.
The respondent had been represented by
attorneys in the preparation of the opposing papers but was no longer
so represented when
he appeared himself. I stood the matter down
until the Thursday to enable the respondent to obtain legal
representation and/or
to reach a settlement with the applicant. In
the end, no settlement was reached and the respondent continued to
represent himself.
[2]
The facts are uncomplicated and were not in
dispute. The applicant obtained default judgment before the Registrar
on 14 April 2016
in the amount of about R2.5m for non-payment of an
instalment sale agreement and three mortgage loan agreements. The
registrar
referred the matter to open court for adjudication of the
applicant’s rights to have two mortgaged properties declared
specially
executable for the judgment debt.
[3]
The respondent appears to reside in
Zimbabwe. Neither of the two properties in issue is the respondent’s
primary residence.
[4]
The applicant’s founding affidavit
fell short of the requirements set out in
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999 (2) SA 279
(T) at 323F and further (under the heading ‘
The
law relating to the content of affidavits generally’
).
It did not contain the summons, the application for default judgment,
or the underlying documents. The answering affidavit raised
no
objection thereto.
[5]
Although not dealt with in the founding
affidavit, one of the mortgaged properties was sold on auction by
agreement between the
applicant and the respondent on 28 July 2016,
the property situated at Chancliff Agricultural Holdings. The selling
price was about
R1.9m. This substantially reduced the respondent’s
judgment indebtedness to the applicant, but he remained indebted in
an
amount of in excess of R0.6m. The respondent puts this figure at
about R650 000.
[6]
The applicant seeks to levy execution
against the remaining two properties to satisfy its judgment.
[7]
The applicant did not seek to levy
execution against the respondent’s movable assets before
bringing the current application.
It did not do so as it believes
that the proceeds of such sales would be insufficient to settle the
respondent’s debt to
it. No reason for this belief has been
given. On the other hand the respondent also did not disclose movable
assets.
[8]
The answering affidavit contains
unsubstantiated averments about an agreement with the applicant that
the property situated at Chancliff
Agricultural Holdings would not
have been sold for less than R2.4m. Due to the vagueness of these
averments, it is impossible to
conclude that a factual dispute
exists. The respondent merely avers that he has a recollection of
such an agreement. He does not
identify the applicant’s
representative with whom he could have concluded the agreement. The
answering affidavit reflects
that the respondent has endeavoured to
sell the Riebeeckstad property for R500 000, to one A J Schamrel,
presumably a relative.
The sale has not been completed.
[9]
In the light of the reduced judgment debt,
in the light of the fact that two properties are at stake, and the
fact that the respondent
was unrepresented, I asked the parties to
consider if an agreement could be reached that first the one and then
the other property
be sold. They could not reach such an agreement.
The respondent conceded that neither property is valuable enough to
raise a sufficient
selling price to clear the judgment debt.
[10]
This outcome me with the task to apply the
law. In
Bartezky and Another v Standard
Bank of South Africa Limited and Others
(13668/2016)
[2017] ZAWCHC 9
(16 February 2017) para 10-12 Binns-Ward
J gave this summary (underlining added):
‘
[10]
The notion that a debtor’s property should be available to
satisfy its debts is universally accepted. Execution
does not
occur arbitrarily. It takes place only after a court has by its
judgment confirmed the existence of the obligation
and authorised
enforcement of compliance with it. Thereafter, a number of
prescribed procedures have to be complied with
before execution of
the judgment is actually carried out. These include notice of
to the judgment debtor of the attachment
of the property, the ability
of a judgment debtor in the ordinary case to point out the property
that should be attached, advertisement
and a public sale. The
procedural requirements afford a judgment debtor adequate practical
opportunity to avoid the sale
of its property if it is able to redeem
its indebtedness by other means.
[11]
The relative importance of immovable property – something
recognised by the Constitutional Court in
Wesbank
(see sub-para (e) in para. 100) – is acknowledged in the
provision that ordinarily execution must occur against movables,
and
only when those have been excussed may the judgment creditor proceed
against immovable property.
The
position is different, when, as in the current matter, the court had
declared the immovable property to be directly executable,
but that
invariably occurs when the debtor has bound itself to submit to such
an order – usually in the context of having
mortgaged the
property.
There is nothing arbitrary about that.
[12]
Nor is the exposure of the property to execution something that
happens arbitrarily. It is always founded on some underlying
liability by the judgment debtor. A judgment debtor who
undertakes contractual liability voluntarily undertakes the risk
that
breach of or failure to perform in terms of the contract may have
adverse proprietary consequences. . .
.’
[11]
In Gundwana v Steko Development CC and
Others
(CCT 44/10)
[2011] ZACC 14
;
2011
(3) SA 608
(CC);
2011 (8) BCLR 792
(CC) (11 April 2011) para 53 and
54 the court held (footnotes omitted, underlining added):
‘
[53]
Some further cautionary remarks are called for. It is rather ironic
that the effect of this judgment is to restore to the courts
a
function that they exercised for close on a century before the
introduction of rule 31(5) in 1994. The change to the original
position has been necessitated by constitutional considerations not
in existence earlier,
but
these considerations do not challenge the principle that a judgment
creditor is entitled to execute upon the assets of a judgment
debtor
in satisfaction of a judgment debt sounding in money
.
What it does is to caution courts that in allowing execution against
immovable property due regard should be taken of the impact
that this
may have on judgment debtors who are poor and at risk of losing their
homes. If the judgment debt can be satisfied in
a reasonable manner
without involving those drastic consequences that alternative course
should be judicially considered before
granting execution orders.
[54]
In
Jaftha
,
Mokgoro J, before listing some relevant factors that needed to be
considered in judicial oversight of the execution process, warned
that “it would be unwise to set out all the facts that would be
relevant to the exercise of judicial oversight.” Mindful
of
that warning, I would merely add the following.
It
must be accepted that execution in itself is not an odious thing. It
is part and parcel of normal economic life. It is only when
there is
disproportionality between the means used in the execution
process
to exact payment of the judgment debt, compared to other available
means to attain the same purpose, that alarm bells should
start
ringing. If there are no other proportionate means to attain the same
end, execution may not be avoided
.
’
[12]
The applicant is entitled to payment. The
applicant’s contractual right to seek an order declaring the
properties specially
executable has not been placed in issue. The
applicant is entitled to this relief.
[13]
On the facts of this case, the applicant
has not made out a case that it is entitled to attorney and client
costs. It sought to
place various further documents before me as a
bundle, but these were not confirmed under oath and did not form part
of these proceedings.
As a result the applicant has failed to prove
its right(s) to claim costs on the attorney and client scale.
[14]
On the facts of this case I grant the
following order:
1 Erf [...] Uitenhage, Nelson Mandela
Bay Metropolitan Municipality, Division of Uitenhage, Province of
Eastern Cape, Measuring
818 (Eight Hundred and Eighteen) Square
Metres and held by Deed of Transfer No. T31006/1997, is declared
specially executable,
subject to the conditions therein contained;
2 Erf [...] Riebeeckstad, District of
Welkom, Province of the Free State, Measuring 833 (Eight Hundred and
Thirty Three) Square
Metres and held by Deed of Transfer No.
T030882/2003
,
is declared specially executable, subject to the
conditions therein contained;
3 The Registrar is authorised to issue
a warrant of execution against the immovable properties as described
in (1) and (2) above;
4 The respondent is to pay the costs
of this application.
______________
DP
de Villiers AJ
On
behalf of the Applicant: Adv S Dos Santos
Instructed
by: Moodie & Robertson