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[2021] ZAGPJHC 485
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Technologies Acceptances Receivables (Pty) Ltd v Thlako and Others (36598/2016) [2021] ZAGPJHC 485 (12 January 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 36598/2016
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
12/01/2021
In the matter between:
TECHNOLOGIES
ACCEPTANCES RECEIVABLES APPLICANT
(PTY) LTD
and
LESIBA JOHANNES
THLAKO
FIRST RESPONDENT
VIOLET MOKOKO
MOJELA
SECOND RESPONDENT
ABSA BANK
LIMITED
THIRD RESPONDENT
IN RE:
TECHNOLOGIES
ACCEPTANCES RECEIVABLES FIRST PLAINTIFF
(PTY) LTD
FINTECH UNDERWRITING
(PTY) LTD
SECOND PLAINTIFF
and
BOTLE BJA LESIBA
TRADING AND
FIRST DEFENDANT
LESIBA JOHANNES
TLHAKO
SECOND DEFENDANT
JUDGMENT
MOOSA
AJ
:
INTRODUCTION
[1] This is an
application wherein the applicant seeks an order in terms of Part B
of the application in the following terms:
a). Declaring the
first respondent’s undivided share in an immovable property
described as Unit [....] Tygerberg, Berea,
Gauteng, Scheme Number
122/1992, City of Johannesburg held under Deed of Transfer Number
ST22373/2002 (“the property”)
specifically executable.
b). Ordering that a
writ of execution is issued in respect of the property, as envisaged
in terms of Uniform Rule 46 (1) (a).
c). Costs of suit
on the attorney client scale against the first respondent.
[2] The first
respondent is indebted to the applicant in the following amounts:
a). payment of the
amount of R 68 085.01
b). interest on the
amount of R 68 085.01 calculated at 6% above the prime interest rate
as applicable from time to time per
annum, calculated from date of
service of summons, to date of final payment, both days inclusive.
c). costs of R
200.00 plus Sheriff’s fees.
[3]
The second respondent has been cited as an interested party herein,
in so far as she holds an undivided share in the property.
The
applicant does not seek relief against the second respondent, save
for costs, in the event of opposition.
[4] The third
respondent has been cited herein as an interested party, insofar as a
mortgage bond is registered in it’s
favour over the property.
No relief is being sought against the third respondent, save for
costs, in the event of opposition.
[5] The applicant
has been unable to satisfy the judgment debt since November 2016 and
the applicant contends that no other
possibility exists that the
judgment debt may be liquidated within a reasonable period, without
having to execute against the first
respondent’s undivided half
share in the property.
FACTUAL BACKGROUND
[6]
The applicant leased equipment to the first Botle Bja Lesiba Trading
and Projects CC (“first defendant”) in
terms of a master
rental agreement (‘agreement’).
[7] The first
respondent bound himself as surety for all payments due to the
applicant by the first defendant in terms of
the agreement.
[8] The first
defendant failed to make payment due to the applicant in terms of the
agreement, resulting in the applicant
obtaining judgment on 14
November 2016 against the first defendant as principal debtor, and
the first respondent as surety for,
inter alia, payment of a capital
sum, together with interest and costs.
[9] The applicant
was unable to execute the judgment debt, in respect of the first
defendant, who no longer conducts business.
Further, the applicant
has been unable to execute the judgment debt against the first
respondent’s moveable assets.
[10]
The applicant argues that the only mechanism available to execute the
judgment, and to obtain payment of the judgment
debt, is to have the
first respondent’s undivided half share in the immovable
property specifically executable.
[11] The applicant
submits further that it does not have any intention to sell the first
respondent’s half share in
the property. However, the purpose
underlying the relief sought is to secure the applicant’s
position by ensuring that the
property cannot be sold and transferred
to a third party, without the judgment debt owed to the applicant
first being satisfied.
DEFENCE RAISED BY
THE RESPONDENTS
[12] The first and
second respondents have raised the following points
in limine
,
to the extent that the application is defective insofar as it does
not comply with Chapter 10 of the Practice Manual in the following
respects:
a). the applicant’s
founding affidavit fails to contain the statements referred to in
Sanderson, Jessa and Dawood;
b). the applicant’s
founding affidavit fails to draw the first and second respondent’s
attention to the provisions
of Rule 46A and Rule 46A(6) of the Rules
of Court;
c). the applicant’s
founding affidavit fails to set out the information required in Rule
46A(5)(a)-(e) of the Rules
of Court to assist this Court in
furnishing a reserve price for the property at a judicial sale in
execution;
d). the failure of
the applicant to draw attention to material issues and to provide
critical information to the Honourable
Court renders the application
incomplete, and contravenes the Practice Manual and Rules of Court;
e). as a
consequence of the aforementioned contraventions and omissions, the
first and second respondents are unable to answer
and deal
specifically with these issues and are severely prejudiced.
f). The respondents
raise a further point
in limine
to the extent that the relief
that the applicant is seeking is that of an interdict, in that it
requires to prevent the first respondent
from selling his undivided
half share. However, such relief is being sought via an application
to have the property specifically
executable. The respondents contend
that this is irregular and an abuse of the judicial process.
[13] In the
alternate and in the event that the points
in limine
fail, the
respondents further submit as follows:
a). It is common
cause that no order is sought against the second respondent and that
the applicant only seeks to have the
undivided half share of the
property in the name of the first respondent to be declared
executable.
b). The property is
a small flat, wherein members of the first respondent’s family
are residing with the second respondent,
who is his mother.
c). The first
respondent resided in the property with his family from 2001 and
subsequently left the property as there was
insufficient living
space, and is currently renting a flat in Troyville, Johannesburg.
d). The first
respondent intends moving back into the property when circumstances
permit.
e). The half share
in the property owned by the first respondent constitutes his primary
residence.
[14] The
respondents argue that in the circumstances the applicant is not
entitled to the relief sought.
ANALYSIS
[15] I have
carefully considered this matter and do not deem it necessary to
burden this judgment with all the arguments that
have been raised by
counsel during the hearing of this matter, as well as in their heads
of argument. I do so for the sake of brevity
and to avoid unnecessary
prolix, as the issue to be determined is in my view simple and crisp.
I accordingly do not intend to get
bogged down with all the
turbulence that has been created during the hearing of this matter.
[16] Having heard
argument from the parties, I am of the view that the crisp issues to
be determined is whether the property
in question is the first
respondent’s primary residence, and whether this is an
application for foreclosure.
[17]
The first respondent opposes the relief sought, in circumstances
where he concedes that the property is not his primary
residence
[1]
.
It is common cause between the parties that the first respondent does
not reside at the property. This fact has been confirmed
to the
sheriff by the second respondent, who is the first respondent’s
mother, as well as by the first respondent in his
answering
affidavit.
[18] The first
respondent asserts that the second respondent resides on the
property, together with her other adult children
and grandchildren.
In this regard, it is clear that no order is sought regarding the
second respondent’s half share of the
property, who is cited as
an interested party to this application.
[19] Accordingly,
in my view having regard to the purpose of the application, the right
of the second respondent, as well
as any of the occupants that reside
on the property remains unaffected by the relief sought.
[20] I have duly
applied my mind to the additional cause of complaint, in that the
application is defective insofar as it
fails to set out statements
referenced in applicable case authorities, and a reserve price is not
provided for.
[21] In this
regard, it is an undisputed fact that the first respondent does not
reside on the property and hence it cannot
be regarded as his primary
residence. I have duly taken note that despite this fact, the
applicant has duly referenced the requisite
statements in both the
notice of motion and founding affidavit to this application.
[22] Further, I am
in agreement with the applicant’s submission that a reserve
price need not be set, insofar as the
application pertains to the
half share of the property owned by the first respondent, and the
fact that the first respondent is
not primarily resident on the
property.
FINDINGS
:
[23] I have
carefully applied my mind to the nature of the relief sought, as well
as the common cause fact that the first
respondent does not reside at
the property. To this end, I find that the property is not the first
respondent’s primary residence.
[24] It is clear
that the applicant does not hold a bond over the property and
therefore this simply cannot be deemed to be
a foreclosure
application. I accordingly conclude that this is an application for
execution against the first respondent’s
undivided half share
in the property.
[25] Further,
having found that the property is not the first respondent’s
primary residence, it is clear that the considerations
regarding
foreclosure applications do not apply in this instance.
[26] Accordingly, I
find no merit in the points
in limine
raised by the
respondents, and accordingly these are dismissed.
[27] Based on the
nature of the relief sought it is clear that no order is sought
regarding the second respondent’s
half share of the property
and accordingly such relief would not affect the rights enjoyed by
the second respondent in the property.
[28] Accordingly,
on the totality of the evidence before me, and having carefully
considered this matter, I find that the
applicant has made out a
proper case for the relief sought.
COSTS
[29]
The
general principle applicable to the issue of costs is that costs
follow the event, and subject to the general rule that costs
unless
expressly otherwise enacted, is a matter of discretion for the court
to grant or deny any party its costs.
This
is succinctly captured in the dictum of Lord Lloyd in
Bolton DC V
Secretary of State for the Environment
[1996] 1 ALLER 184
(HL)
at
186g
: “
What then is the proper approach? As in all
questions to do with costs, the fundamental rule is that there are no
rules. Costs are
always in the discretion of the court, and in
practice, however widespread and longstanding, must never be allowed
to harden into
a rule”
.
[30]
In
Kruger Bros & Wasserman v Ruskin
1918 AD 63
at 69
,
Innes J expressed the same principle in the following way: “
...the
rule of our law is that all costs – unless expressly otherwise
enacted – are in the discretion of the Judge.
His discretion
must be judicially exercised”.
[31]
I am accordingly guided in these circumstances by what was stated in
the case of
Jenkins
v S.A Boiler Makers, Iron & Steel Workers & Ship Builders
Society
1946 WLD 15
at 18
:
“
the
court must do its best with the material at its disposal to make a
fair allocation of costs, employing such legal principles
as
are applicable to the situation
”
.
[32]
I am full well aware that the general practice is that costs follow
the results, and accordingly the party that is substantially
successful gets the costs awarded in its favour.
[33]
In the result, I make the following
order
:
[1] The first
respondent’s undivided share in the immovable property
described as Unit [....] Tygerberg, Berea, Gauteng,
Scheme Number
122/1992, City of Johannesburg held under Deed of Transfer Number
ST22373/2002 (“the property”) is declared
specifically
executable.
[2] A writ of
execution is issued in respect of the property, as envisaged in terms
of Uniform Rule 46(1)(a) of the Uniform
Rules of Court.
[3] The first
respondent is to pay the costs of this application on an attorney and
client scale.
C I MOOSA
ACTING JUDGE OF THE
HIGH COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG
12 JANUARY 2021
Counsel for
Applicant:
Adv N Lombard
Attorney for
Applicant:
Ms L Kriel
Instructed
by:
KWA Attorneys
24
Grant Avenue
Victoria,
Johannesburg
Tel:
0117287728
lindi@kw.cop.za
Ref:
L Kriel/MAT13599
Attorney for
Respondents:
Mr JM
Claassen
Instructed
by:
JM Claassen Attorneys
8
Granister
5
Hope Road
Mountain
View
Johannesburg
Tel:
0117288863
jmc1@mweb.co.za
Dates of
hearing:
21 October 2020
Date of
judgment:
12 January 2021
[1]
Bundle
C, Answering Affidavit, paginated page 237, paragraph 8.4.3 and
paginated page 238, paragraphs 8.4.4.6 – 8.4.4.7