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[2020] ZAGPJHC 291
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SB Guarantee Company (RF) (Pty) Ltd v Muhammad (35048/2019) [2020] ZAGPJHC 291 (16 November 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
35048/2019
In
the matter between:
SB
GUARANTEE COMPANY (RF) (PTY)
LTD
Applicant
and
SHIABNE
MUHAMMAD
Respondent
J
U D G M E N T
MAIER-FRAWLEY
J
:
Introduction
1.
In
this application, SG Guarantee company (RF) (Pty) Ltd (the applicant)
seeks judgment against Mr Shiabne Muhammad (the respondent)
for
payment of the sum of R2 888 127, including interest and costs,
together with an order declaring mortgaged property specially
executable.
2.
The
applicant’s pursues a securitized claim, relying on the
provisions of a written indemnity agreement (read with the provisions
of a mortgage bond) granted in its favour by the respondent, which
agreements formed part of a suite of agreements between the
applicant, the respondent and The Standard Bank of South Africa
Limited (Standard Bank).
3.
The
respondent opposed the application on various grounds, including a
plethora of technical objections, however, only two such
objections
were ultimately pursued at the hearing of the matter. The first is
that the certificate of balance relied on by the
applicant in
substantiation of the full balance outstanding to it by the
respondent, is alleged to be invalid for non-conformance
with the
provisions of the certificate clause contained in the mortgage bond
and in a home loan agreement concluded between Standard
Bank (as
lender) and the respondent (as borrower). Essentially the objection
is that the signatory of the certificate is not authorised
to sign
same on behalf of the applicant. The second is that pre-litigation
letters of demand (one of which was sent on behalf of
Standard Bank
(as credit provider) to the respondent in terms of section 129(1) of
the National Credit Act, 34 of 2005 (the NCA)
and the other of which
was sent to the respondent on behalf of the applicant (as
creditor/mortgagee)) failed to contain a notice
alerting the
respondent to the provisions of section 129(3) of the NCA, thus
allegedly rendering the notices invalid.
4.
Both
the founding and replying affidavits were deposed to by Mr Riley
Barry Moody on behalf of the applicant. Mr Moodey is a manager
in the
employ of Standard Bank in its division known as Business support,
Rescue and Recoveries, Personal and Business Banking
Credit, having
been authorised to do so by way of a resolution dated 25 April 2019
granted by the board of directors of the applicant
(the resolution).
Further
opposition
5.
In
addition to the technical objections mentioned earlier, the
respondent opposes the grant of an order of special executability
of
the property forming the subject matter of the application on the
following grounds
:
(i)
That
the respondent, his children and mother in law reside at the
properties and their rights of access to adequate housing will
be
infringed if the properties are declared specially executable
;
(ii)
In
the event of the court declaring the properties specially executable,
the execution of such order should be suspended pending
the outcome
of the sale of certain non-descript movable property owned by the
respondent and which he avers would satisfy the arrears
under the
home loan agreement.
Factual
matrix
6.
The
following facts were either common cause or not disputed and not
refuted on the papers:
7.
On
1 March 2015, the applicant and Standard Bank concluded a common
terms guarantee agreement (guarantee agreement) in terms of
which the
applicant would from time to time guarantee the obligations of
Standard Bank’s debtors under individual home loan
agreements
(the guarantee agreement). It was recorded therein,
inter
alia,
that:
7.1.
Standard
Bank had and would in future enter into individual home loan
agreements with various debtors in terms of which Standard
bank would
advance funds to the relevant debtors against security of immovable
property;
7.2.
it
was a condition of each home loan agreement that the applicant would
guarantee the obligations of the relevant debtor to Standard
Bank
under the relevant home loan agreement and that
the
debtor would indemnify the applicant against any payment obligation
it incurred under the guarantee and would register a mortgage
bond in
favour of the applicant over the relevant immovable property as
security for the repayment of the indebtedness of the debtor
under
the indemnity.
8.
Relevant
terms of the guarantee agreement included,
inter
alia,
the following:
8.1.
In
consideration for each debtor granting the required indemnity and
registering a
mortgage
bond, and with effect from the date of registration of the mortgage
bond, the applicant guaranteed, subject to the terms
and conditions
of the guarantee agreement, the due and punctual payment of all sums
then and subsequently due by each debtor to
Standard Bank under his
or her respective home loan agreement;
8.2.
On
signature of a home loan agreement, an indemnity and a power of
attorney authorising the registration of a mortgage bond, the
applicant would sign and deliver a guarantee to Standard Bank;
8.3.
If
Standard Bank notified the applicant in writing to make any payments
to it as set out in clause 13, the applicant would proceed
promptly
against the debtor in any competent court and call up and foreclose
on the mortgage bond or enforce such other remedies
as may be
available to it.
9.
On
2 July 2018 the respondent and Standard Bank concluded a home loan
agreement
in
terms of which Standard Bank agreed to lend and advance the sum of R2
800 000.00 to the respondent ('home loan agreement').
10.
As
security for the home loan, Standard Bank required,
inter
alia
:
10.1.
a
guarantee by the applicant to Standard Bank in terms of which the
applicant undertook to pay to Standard Bank the amount owing
in terms
of the home loan agreement in the event of a default by the
respondent thereunder;
10.2.
an
indemnity by the respondent in terms of which he indemnified the
applicant against any claim made by Standard Bank in terms of
the
aforesaid guarantee; and
10.3.
a
mortgage bond registered in favour of the applicant for the capital
sum of R2 800000.00.
11.
Relevant
terms of the home loan included,
inter
alia,
the following:
11.1.
An
event
of default would occur under the home loan agreement if,
inter
alia
,
the respondent failed to pay any amount owing to Standard Bank
thereunder on due date and/or there was a material deterioration
in
the debtor’s financial position and/or the respondent otherwise
breached the home loan agreement or any agreement between
Standard
Bank and the respondent and failed to remedy such breach within the
time period provided in Standard Bank's written notice
to the debtor
do so.
11.2.
In
the event of default, Standard Bank could, at its election and
without prejudice to any other remedy which it had in terms of
the
home loan agreement (including cancellation), recover from the
respondent payment of amounts owing under the home loan agreement;
11.3.
A
certificate signed by any of Standard Bank's managers, whose
appointment need not be proved would, on its mere production, be
sufficient proof of any amount due and/or owing by the respondent in
terms of the home loan agreement, unless the contrary was
proved
(clause 24.11).
12.
Pursuant
to the home loan agreement, as read with the guarantee agreement:
12.1.
the
applicant signed and delivered a guarantee to Standard Bank in terms
of which it
guaranteed
the due and punctual payment of all sums which were then, or which
would subsequently become due and payable by the respondent
to
Standard Bank pursuant to the home loan agreement;
12.2.
the
respondent provided a written indemnity to the applicant in terms
whereof the respondent acknowledged and agreed that if Standard
Bank
lodged or made a claim against the applicant on the guarantee, he
would immediately be liable to the applicant in terms of
the
indemnity for the amount in which the applicant was liable under the
guarantee; and
12.3.
a
first continuing covering mortgage bond for the sum of R2.8 million
was registered over the respondent’s immovable property
comprising of notarially tied Erf numbers: 5570; 5571; 5572; 5573,
Kensington Township, held under Deed of Transfer No. T36622/2018
(the
property) in favour of the applicant. The respondent hypothecated the
property as security for his stated liability to the
applicant,
including ‘every
indebtedness
or obligation of whatsoever cause and nature, whether then in
existence or which may have come into existence in the
future’,
including costs on the attorney and client scale.
13.
In
terms of clause 6 the bond, “
A
certificate signed by any director or administrator of the Mortgagee,
whose appointment need not be proved, will on its mere production
be
sufficient proof of any amount due and/or owing by the Mortgagor to
the Mortgagee and secured by or in terms of this bond, unless
the
contrary is proven.”
14.
In
terms of clause 9 of the bond, if the respondent failed to observe or
perform any provisions in the mortgage bond, or failed
to pay any sum
which may be legally claimable by the applicant, or failed to perform
any other obligation on due date or at all,
then all amounts secured
by the mortgage bond would, at the applicant's option, become
immediately due and payable in full upon
demand, and the applicant
could then institute proceedings for the recovery thereof and for an
order declaring the property specially
executable.
[1]
15.
The
respondent utilised funds advanced to him by Standard Bank with which
to purchase the property. When the respondent defaulted
in his
obligations under the home loan agreement,
[2]
on 19 June 2019, Standard Bank despatched a breach notice in terms of
s 129(1) of the NCA, in which it demanded payment of the
arrears
(then R90 324,78) within a specified period. When the arrears
remained unpaid at the expiry of the said period, Standard
Bank
elected to cancel the home loan agreement, which election was
conveyed to the respondent thereafter in writing. On 30 July
2019,
Standard Bank called on the applicant to make payment under the
guarantee and to institute legal proceedings against the
respondent
for the recovery of the full amount due by the respondent and to take
steps,
inter
alia,
to
foreclose under the mortgage bond.
16.
On
8 August 2019, the applicant’s attorneys send a written letter
of demand to the respondent for payment of the sum of R2
888 127,76
together with interest thereon at the rate of 10.51% per annum,
calculated daily and compounded monthly in arrears from
30 July 2019
to date of payment, including monthly insurance premiums of R1 277.21
(being the full amounts outstanding of
the respondent’s
indebtedness under the home loan agreement). Specific reference was
therein made to the provisions of clause
3.2 of the indemnity
signed
by the respondent on 12 July 2018, in terms of which he acknowledged
and agreed that if Standard Bank lodged a claim against
the applicant
in terms of the guarantee, the respondent would immediately be liable
to the applicant for the amount in respect
of which the applicant was
liable to Standard Bank under the guarantee.
It
is on such basis that the applicant now looks to the respondent for
payment in terms of the indemnity as read with the mortgage
bond, in
these proceedings.
Condonation
17.
The
respondent applied for condonation for the late filing of his
answering affidavit, which was not opposed by the applicant.
The
respondent furnished a satisfactory explanation for the late delivery
of his papers and no prejudice was suffered by any of
the parties as
a result thereof. I am of the view that it is in the interests of
justice to grant condonation.
Analysis
18.
From
a close reading of the papers, no meaningful and substantive defence
has been disclosed by the respondent to the claim proper.
In
particular, the respondent does not dispute (nor has it been refuted)
that:
18.1.
funds
were advanced to him by Standard bank in accordance with the terms of
the home loan agreement;
18.2.
he
breached the home loan agreement in that he defaulted on his monthly
payment obligations thereunder;
18.3.
he
failed to pay the arrears owing under the home loan agreement
notwithstanding receipt by him of a breach notice delivered by
Standard Bank pursuant to his default, as a result of which the
acceleration clause in the home loan agreement was invoked, rendering
the full balance outstanding under the home loan immediately due,
owing and payable;
18.4.
the
home loan agreement was validly cancelled by Standard Bank pursuant
to the respondent’s failure to remedy his default;
18.5.
the
applicant guaranteed payment of the respondent’s indebtedness
to Standard Bank under a guarantee provided by it to Standard
Bank
pursuant to the conclusion of the guarantee agreement;
18.6.
the
respondent indemnified the applicant against a claim made upon it by
Standard Bank under the Guarantee;
18.7.
Standard
Bank called on the applicant to pay under the guarantee;
18.8.
the
full amount due, payable and owing by the respondent to the applicant
under the indemnity is the amount of the claim lodged
by Standard
Bank against the applicant under the guarantee, which equates to the
full amount of the respondent’s indebtedness
arising under the
home loan Agreement; and
18.9.
The
applicant is for purposes of these proceedings the true holder of the
claim.
Alleged
invalidity of certificate of balance
19.
The
applicant put up two certificates of balance in respect of the
respondent’s indebtedness. The first certificate (annexure
‘FA11’ to the founding affidavit) was issued by the
applicant and signed by the deponent to the founding affidavit
(Mr
Moodey) in his capacity as manager of Standard Bank ‘
for
and on behalf of
’
the applicant ‘
who
warrants his authority.’
In
terms of this certificate, the mortgagor’s indebtedness to the
applicant as at 30 July 2019 amounted to R2 888 127.78
(together with interest and monthly insurance premiums of R1 277.21).
20.
The
second certificate (annexure ‘RA4’ to the replying
affidavit) was likewise issued by the applicant and signed by
Mr
Moodey in his capacity as a manager of Standard Bank ‘
for
and on behalf of
’
the applicant ‘
who
warrants his authority.’
In
terms of this certificate, the mortgagor’s indebtedness to the
applicant as at 18 February 2020 amounted to R2 914 771.84
(together with interest and monthly insurance premiums of R1 369.53).
21.
As
indicated earlier, clause 6 the bond required a certificate issued
thereunder to be signed
by
‘
any
director or administrator of the Mortgagee’
(applicant).
Clause 24.11 of the home loan agreement required a certificate issued
thereunder to be signed by ‘
any
of Standard Bank’s managers’.
The
term ‘
administrator’
is
not defined in the bond as such. Incidentally, the Collins dictionary
cites positions such as
‘
manager,
head, official, director’ as synonyms for that of
administrator.
[3]
The
Oxford English dictionary defines administrator
inter
alia,
as
‘a person legally appointed to manage…’
[4]
whilst the Merriam-Webster dictionary defines administrator
inter
alia,
as a person ‘vested with the right of administration…’
[5]
The Macmillan dictionary
[6]
cites ‘agent’ as a synonym for administrator. The Free
dictionary refers to administrator as ‘a
person
appointed
to administer…’ or ‘a
person
authorised
to manage…’
22.
In
terms of the resolution of the board of directors of the
applicant,
[7]
Mr Moodey,
in
his capacity as ‘Manager: Business Support, Rescue and
Recoveries, Personal and Business Banking Credit, a division of
The
Standard Bank of South Africa Limited’ was authorised by the
applicant for the period 01 March 2019to 20 April 2020,
to do various
acts on behalf of the applicant,
inter
alia
,
to ‘settle the terms of and
sign
any
affidavits or
documents
that may be required in
relation to
any
litigation
and liquidation proceedings
affecting
the applicant
.’
[8]
(own emphasis)
23.
The
bond does not preclude or prohibit the applicant from authorising any
person (such as Moodey) to act in the stead of one of
its directors
or ‘administrators’, thereby delegating the signing of
the certificate of balance to such person, as
authorised. Mr de
Oiveira who appeared on behalf of the applicant submitted that the
clause in the resolution is wide enough to
cover the signing of the
certificate of balance by a person who is authorised by the
applicant’s board of directors to sign
any
document
required in litigation affecting the applicant. I agree. Even if the
certificates were to be excluded, and even if no certificate
had been
put up by the applicant, it would not matter, given that the pleaded
allegations as to the quantum of the applicant’s
claim were not
in dispute.
[9]
It therefore
ill-behoves the respondent to argue, as he sought to do at the
hearing of the matter, that there is no evidence as
such before court
in respect of either the arrears under the home loan or the total
amount outstanding under the bond. The objection
lacks merit and
accordingly cannot be sustained.
Failure
to include notice in terms of s 129(3) of NCA
24.
The
respondent contends that it was incumbent upon the applicant to
incorporate a notice in terms of s 129(3) of the NCA in its
letter of
demand that was issued by it in terms of s 129(1) of the NCA.
25.
What
is sought to be enforced in these proceedings is the indemnity
provided by the respondent (read together with the provisions
of the
bond) and not the underlying credit (home loan) agreement as such.
The indemnity is not either a credit agreement as such.
To the extent
that the applicant’s letter of demand dated 8 August 2019 made
reference to section 129 of the NCA, thereby
erroneously
incorporating those provisions in the letter of demand does not
necessarily mean that section 129 of the NCA applied
to the claim
absent any allegation that the applicant incorporated those
provisions in the bond.
[10]
26.
The
respondent sought to rely on what was stated in
Mokebe
,
[11]
namely
that:
“…
Foreclosure
of immovable property, which is the primary residence of a consumer,
has a major impact on the right contained in s
26(1) of the
Constitution: the right to have access to adequate housing. Section
129(3) and (4) of NCA must therefore be interpreted
to promote this
right. A default judgment and declaration of the immovable property
as specially executable, and the sale of immovable
property in
satisfaction of such default judgment should not be a bar to revival
of the agreement. What militates against the revival
of the
agreement, is inter alia, the sale and receipt of the proceeds of
such sale. Before then, a consumer may revive or reinstate
the
agreement. In order to ensure that the home owner understands his or
her right, we are of the view that the following statement
must be
incorporated in a document initiating the proceedings where a
mortgaged property may be declared executable, such statement
to be
made in a reasonably prominent manner
:
‘
The
defendants’ (or respondent’s) ‘attention is drawn
to
section
129(3)
of
the
National
Credit Act No. 34 of 2005
that
he/she may pay to the credit grantor all amounts that are overdue
together with the credit provider’s permitted default
charges
and reasonable agreed or taxed costs of enforcing the agreement prior
to the sale and transfer of the property and so revive
the credit
agreement.’…”
27.
In
my view, reliance on the above extract from
Mokebe
was
misplaced within the context of these proceedings. The court in
Mokebe was referring to reinstatement of credit agreements
capable
of being reinstated
prior to a sale in execution and the receipt of the proceeds of a
sale. Mokebe was not concerned with credit agreements that have
in
fact been validly cancelled by a credit grantor.
28.
Section
129(3)
of the NCA provides as follows:
‘
Subject
to subsection (4),
a
consumer may at any time before the credit provider has cancelled the
agreement,
remedy
a default in such credit agreement by paying to the credit provider
all amounts that are overdue, together with the
credit provider’s
prescribed default administration charges and reasonable costs of
enforcing the agreement up to the time
the default was remedied.’
(own
emphasis)
29.
Section
129(4)(c)
in turn provides that a credit provider may not reinstate
or revive a credit agreement after the termination thereof in
accordance
with
s 123.
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30.
The
respondent’s right to reinstatement in terms of
s 129(3)
,
subject to
s 129(4)
, is largely mirrored in the express terms of the
home loan agreement, as follows:
‘
If
you are…in default of your Repayment obligations in terms of
this Agreement, you may
at
any time before cancellation of the Loan by us,
pay
to us all amounts that are overdue, together with Defautlt
Administration Charges, Collection Costs and/or reasonable legal
costs incurred up to date of payment in terms of this clause…’
[12]
(own
emphasis).
31.
There
is no dispute that Standard Bank complied with its obligations under
Part C
of Chapter 6 of the NCA. It was entitled to terminate the home
loan agreement and did so by giving notice thereof to the respondent
in a letter of 29 July 2019 as follows:
‘
In
light of the respondent’s failure to remedy their breach, the
applicant has elected to cancel the Agreement, which it hereby
does
.’
[13]
32.
The
respondent accordingly enjoys no right to reinstate the credit
agreement as cancellation thereof is a bar to reinstatement.
[14]
In circumstances where there exists no right in law to reinstate the
credit agreement by virtue of its cancellation, it would be
misleading to refer the consumer to the provisions of
s129(3)
in the
notice of motion or in any pre-litigation letter of demand dispatched
to the respondent after cancellation of the relevant
credit
agreement. For these reasons, the objection on this ground likewise
cannot be sustained.
Infringement
of respondent’s right of access to adequate housing
33.
The
respondent baldly avers that his constitutional right to adequate
housing in s 26(1) of the Constitution will be infringed if
an order
for special executability is granted.
34.
A
litigant is called upon to justify an infringement of a
constitutionally protected right only once it has been established
that
an infringement has in fact occurred.
[15]
A right of access to
adequate
housing
does not mean that one has a right to housing of one’s
choice.
[16]
35.
The
respondent alleges that ‘
if
a judgment is granted, I will not be able to secure rented premises
as once a judgment is granted against one, landlords are
loathe to
rent out property
…’
[17]
Aside from the fact that no primary facts were provided in support of
the conclusion aforesaid, the respondent has not disclosed
his
personal income and expenditure nor has he indicated to what extent
he is able (or not) to afford suitable alternative accommodation.
On
the contrary, the respondent states in para 36 of the answering
affidavit that he is possessed of ‘substantial movables’,
without however describing same or stating where they may be located.
No reason has in any event been given for why the respondent
cannot
liquidate or has not liquidated such movables in order to either
settle part or all of his indebtedness to the applicant
or to fund
suitable alternative accommodation for himself and his family.
36.
As
pointed out in
NPGS:
[18]
‘…
there
is an onus on the debtor at the very least, to provide the court with
information concerning whether the property is his or
her personal
residence, whether it is a primary residence, whether there are other
means available to discharge the debt and whether
there is a
disproportionality between the execution and other possible means to
exact payment of the …debt.’
37.
The
respondent has failed to discharge such onus, having contented
himself with vague and unsubstantiated averments in relation
to the
aforesaid issues, whilst seemingly rather focussing on raising a host
of
prima
facie
unmeritworthy technical objections in his answering papers.
Stay
of execution pending sale of movables
38.
In
the event that judgment is granted as prayed, the respondent requests
that an order declaring the immovable property executable
be held
over pending execution against his movable property, which he avers
is ‘more than sufficient to cover the arrears’
so that
‘once the arrears are paid, the agreement is revived.’ I
have already dealt earlier with the fact that the
respondent has no
right in law to the reinstatement of a credit agreement that has been
cancelled in accordance with the provisions
of s 123 of the NCA, as
is the position in
casu.
39.
Moreover,
it has been held that where a debtor claims to have sufficient
movable property, but fails to point out same or make same
available
for execution, a creditor is entitled to execute against his
immovable property.
[19]
Rule
46A considerations
40.
Rule
46(1) regulates the process for executing against the immovable
property of a judgment debtor, which process includes execution
against residential immovable property of a judgment debtor, subject
to the provisions of rule 46A where such residential property
constitutes the primary residence of the judgment debtor. If it does,
Rule 46A(2)(b) enjoins the court to consider all relevant
factors to
determine whether execution is warranted, with the aim of
safeguarding the rights of the debtor where the execution
process
would amount to a deprivation of the right to access adequate housing
as enshrined in section 26 of the Constitution.
41.
Rule
46A accords the protection of judicial oversight to debtors who are
at risk of losing their primary residence, as a safeguard
against
attempts by unscrupulous creditors to exact payment of a debt through
execution against the primary residence of a debtor
when other
reasonable and less invasive avenues of payment may be pursued and to
ensure that execution is proportionate, having
regard to all relevant
circumstances. The safeguards afforded by the procedural mechanisms
contained in Rule 46A to individual
consumers who are at risk of
losing their homes are further aimed at preventing an abuse of the
process.
42.
Relevant
circumstances pertinent to the present matter are as follows:
42.1.
The
property in question is the primary residence of the respondent. It
is a freehold property and thus no amounts are owed to a
body
corporate of homeowners association;
42.2.
As
at 30 July 2019, the arrears under the home loan agreement amounted
to R75 324.78;
42.3.
The
monthly instalment was R76 504.78;
42.4.
As
appears form the sworn valuation attached to the papers, the market
value is estimated to be R2.2 million; the forced sale value
is
R1.550 million; and the municipal value is R1.662 million;
42.5.
As
at 11 June 2019, the outstanding municipal charges amounted to
R69 000.00;
42.6.
In
terms of an updated certificate of balance filed by the applicant
prior to the hearing, the respondent’s full outstanding
liability as at 6 October 2020 amounts to R3 027 199.82
(together with interest and monthly insurance premiums of R1 470.75);
the current monthly instalment is R27 391.89 whist arrears have
increased to R283 818.93;
42.7.
The
applicant and its attorneys engaged the respondent from approximately
28 June 2019 in an attempt to negotiate terms of settlement
to
prevent foreclosure. The applicant states that other than an
insignificant payment of R15 000.00 on 28 June 2019, no further
payments have been made and further engagements failed to yield a
realistic or reasonable commercial solution;
42.8.
Standard
Bank complied with sections 129 and 130 of the NCA;
42.9.
On
his own version, the respondent has ‘substantial’ assets
which he could liquidate in order to finance adequate alternative
housing. The respondent is employed and does not fall within the
demographic of the vulnerable or poor debtor – he has been
able
to employ and presumably pay for legal services, which he utilised
prior to the institution of these proceedings and throughout
these
proceedings;
42.10.
There
is no evidence of any abuse of the process by the applicant (or
Standard Bank) or at least, none has been alleged in the papers.
43.
The
applicant contends that having regard to the forced sale value of the
property, there appears to be no equity in the property
and no way of
avoiding a shortfall after execution. The applicant is, however, not
averse to a reserve price being set in respect
of a sale in
execution, that is, in the event that an order declaring the property
specially executable is granted.
44.
Both
parties are agreeable to a reserve price being set in the amount of
R1 861 342.58, as computed by the applicant,
which amount I
consider to be both reasonable and justifiable.
45.
I
am satisfied that the applicant has established its entitlement to
the relief sought
.
The general rule is that costs follow the result. I see no reason to
depart therefrom. The relevant agreements provide for costs
to be
paid by the respondent on the attorney and client scale.
46.
Accordingly,
the following order is granted:
ORDER
1.
The late filing of the respondent’s answering affidavit is
condoned.
2.
The respondent is to pay
the
sum of R3 027 199.82 to the applicant.
3.
The respondent is to pay interest on the aforesaid sum at the rate of
7.510% per annum from 6 October 2020 to date of payment,
together
with monthly insurance premiums of R1 470.75.
4.
The following immovable properties are declared specially executable:
4.1
Erf 5570 Kensington Township, Registration Division I.R, the Province
of Gauteng, Measuring 495 (Four Hundred and Ninety-Five)
Square
Metres, Held by Deed of Transfer No. T36622/2018;
4.2
Erf 5571 Kensington Township, Registration Division I.R, the Province
of Gauteng, Measuring 495 (Four Hundred and Ninety-Five)
Square
Metres, Held by Deed of Transfer No. T36622/2018;
4.3
Erf 5572 Kensington Township, Registration Division I.R, the Province
of Gauteng, Measuring 495 (Four Hundred and Ninety-Five)
Square
Metres, Held by Deed of Transfer No. T36622/2018; and
4.4
Erf 5573 Kensington Township, Registration Division I.R, the Province
of Gauteng, Measuring 495 (Four Hundred and Ninety-Five)
Square
Metres, Held by Deed of Transfer No. T36622/2018.
5.
The Registrar of this Court is authorised and directed to issue a
Warrant of Execution against the aforesaid immovable properties
of
the respondent.
6.
The sale in execution of the aforesaid immovable properties shall be
subject to a reserve price of
R1 861 342.58
.
7.
The respondent is ordered to pay the costs of the application on the
attorney and client scale.
_
A.
Maier-Frawley
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered: This judgement was
prepared and authored by the Judge whose name is reflected and is
handed down electronically
by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on
CaseLines. The date for hand-down is deemed
to be 16 November 2020.
Date
of virtual hearing:
7 October 2020
Judgment
delivered:
16 November 2020
APPEARANCES:
Counsel
for Applicant:
Mr M De Oliveira
Attorneys
for Applicant:
Jason Michael Smith Incorporated Attorneys
Attorney
for Respondent:
Mr
Larry Marks
Attorneys
for Respondent:
Larry Marks
Attorneys
[1]
The home
loan agreement contained a similar acceleration clause.
[2]
The
respondent first defaulted on his payment obligations in February
2019, i.e., less than a year after the conclusion of the
home loan
agreement.
[3]
See:
https://www.collinsdictionary.com/dictionary/english/administrator
[4]
Per Oxford
English Dictionary:
https://www.lexico.com/definition/administrator
[5]
See:
https://www.merriam-webster.com/dictionary/administrator#:~:text=1%20%3A%20a%20person%20legally%20vested,network%20or%20system%20network%20administrators
[6]
https://www.macmillandictionary.com/dictionary/british/administrator
[7]
Annexure
‘RA1’ to the replying affidavit.
[8]
Para 6 of
the resolution.
[9]
The
respondent unequivocally admitted in para 52 of the answering
affidavit that as at 30 July 2019, the full outstanding balance
owed
under the home loan agreement was R2 888 127.78 together
with interest thereon at the rate of 10.51% per annum
from 30 July
2019 to date of payment, together with monthly insurance premiums in
the sum of R1277.21, and that the arrears were
on that date, the sum
of R78 324.78.
[10]
See:
RMB
Private Bank (a division of Firstrand Bank Ltd) v Kaydeez Therapies
CC (in Liquidation) and Others
2013
(6) SA 308
GSJ.
[11]
Absa
Bank Limited v Mokebe and Related Cases
2018
(6) 492 (GJ), para 46.
[12]
Clause 20.5
of the home loan agreement.
[13]
In
Cloete
v Murray and Another NNO v Firstrand Bank Ltd t/a Wesbank
2015
(3) SA 438
(SCA, par 33, the SCA reiterated that ‘
Cancellation
is a unilateral act of a party to an agreement and, save for giving
the other party notice of such cancellation,
it does not occur in or
by means of any process associated with any form or forum’.
[14]
See:
Nkata
v Firstrand Bank ltd
2016
(4) SA 257 (CC).
[15]
Standard
Bank of South Africa Ltd v Saunderson and Others
2006
(2) SA 264
(SCA) at para 20.
[16]
Saunderson
(fn15
above) at para 17.
[17]
Para 36,
answering affidavit.
[18]
NPGS
Protection & Security Services CC and Another v Firstrand Bank
ltd
2020
(1) SA 494
(SCA) at para 55.
[19]
See:
Nkola
v Argent Steel Group (Pty) Ltd
2019
(2) SA 216
(SCA), paras 8 to 11. Albeit that in
Nkola
a
where a prior money judgment had been obtained and the provisions of
Rule 46(1)(a)(i) were applicable, the principle is nonetheless
applicable to the facts of the present matter notwithstanding that
the application has been brought under the provisions of Rule
46(1)(a)(ii) read with Rule 46A of the Uniform Rules of Court
.