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[2010] ZAGPPHC 159
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Mapalweni v Nedbank Limited and Others (21389A/2010) [2010] ZAGPPHC 159 (7 October 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT
PRETORIA
CASE
NO:21389A/2010
DATE:
07/10/2010
In
the matter between.
SARAH
MAPALWENI
...........................................................................
APPLICANT
And
NEDBANK
LIMITED
..............................................................................
1
st
RESPONDENT
(REG
NO. 51/000009'06)
OUPA
TSHABALALA
...........................................................................
2
nd
RESPONDENT
THE
SHERRIFF:
WONDERBOOM
......................................................
3
rd
RESPONDENT
REGISTRAR
OF DEEDS PRETORIA
................................................
4
th
RESPONDENT
REASONS
FOR
JUDGMENT
TLHAPI
J:
[1]
This was an application for a rescission of judgement and
setting aside of the sale in execution of
the
property
of the applicant, Erf 17080, Mamelodi East. The first respondent
agreed to the rescission and to the setting aside of the
sale in
execution. The issue that remained to be determined was that of
costs. The second to the fourth respondent did not oppose
the
application.
[2]
The following order was granted and reasons were reserved:
“
1.
The
application for condonation is granted;
2.
Default
judgment obtained on the 16 October 2009 under case number 28003/2009
is set aside;
3.
The
order of the 16 October 2009 under case number 28003/2009 declaring
the immovable property executable is set aside;
4.
Costs
reserved;
“
[3]
The
applicant owns property. Erf 17080 Mamelodi Township. Registration
Division J.R. Province of Gauteng and since the passing of
her
husband during 1997, she had lived on such property with her children
Dorcas Mapalweni. Willie Mapalweni and Richard Mapalweni.
She was
also employed as a sleep-in domestic worker from Mondays to Fridays.
The applicant denied ever having applied for a loan
from the first
respondent, furthermore, that she never consented to a bond being
passed over her property. The summons was served
on her son Richard
during May 2009. Her daughter Dorcas undertook to sort the matter out
because summons was meant for her and
not the applicant. According to
the applicant, her daughter had informed her that she was the one who
had an account with the first
respondent and, that she was aware that
the bank had erroneously allocated the same account number to two
individuals who had similar
residential addresses, though in
different areas, the one in Mamelodi East and the other in
Bronkhorstspruit.
[4]
The applicant averred that not Writ of Attachment was served on
her and that she came to know of the auction through the
second
respondent who finally bought her
property
at an auction, conducted by the third respondent on the 15 January
2010. Her son Willie investigated the circumstances
surrounding the
judgement. She saw copies of the loan agreement which was the subject
of the action instituted against her, for
the first time, on the 12
February 2010. The applicant averred that the purported signatures on
the loan application and bond documents
were not hers and that these
had been forged.
[5]
Prior to the launch of this application and from the 16 March
2010 attorneys for the applicant took up the issue of the
forgery
with the attorneys for the first respondent and the latter disputed
the forgery claims. The forgery was confirmed in a
report by
a
handwriting
expert commissioned on behalf of the applicant which report was
annexed to the application. In my view, it is not necessary
for
purpose of this application to give detailed account of the report.
[6]
According
to the first respondent the loan application was signed by the
applicant and that her daughter Dorcas signed as surety
for her. The
first respondent conducted
a
forensic
investigation which concluded that the proceeds of the bond had been
paid out to the applicant's daughter, Dorcas. Furthermore,
the
applicant was agreeable to the setting aside of the judgment and sale
in
execution
and that the applicant be granted leave to defend the matter as there
was a dispute of facts.
[7]
The parties prayed for costs in the following manner:
1.
The applicant prayed that the costs of this application be paid by
the first respondent on an attorney and client scale, alternatively
that
in
the
event that the application was opposed by the rest of the
respondents, that the said respondents pay the costs of the
application
jointly and severally.
2.
The first respondent prayed that applicant be responsible for payment
of costs of the application and commission due to the third
respondent in the amount of
R8050.00
plus
VAT or, that in the first alternative, that the second respondent pay
the commission due to the third respondent or, in the
second
alternative that the issue of costs and commission be reserved until
trial.
[8]
It
is trite that the discretion for the award of costs lies with the
court and that such discretion must be exercised judicially
and not
arbitrarily. Furthermore, ordinarily and depending on the
circumstances of the case and the issues involved, costs would
be
awarded to the successful party. It was submitted for the applicant
that the first respondent had been unreasonable in its conduct
towards the applicant before the application was launched, virtually
forcing applicant's hand in bringing this application and
that the
issues could have been resolved without going to court.
[9]
The facts and the reason for awarding costs in De Wet NO v
Minister van Veiligheid & Sekuriteit
2008
(5)
SA
418
(C) were distinguishable. While I do have regard to the personal
circumstances of the applicant, they are not in my view
extraordinary.
In this matter it can not be said that the applicant
was the successful party. There was no confirmatory affidavit from
the applicant's
daughter regarding the summons and, there was no
explanation why it took applicant and her children many months before
engaging
the first respondent or approaching the courts for an
appropriate remedy. On the other hand there was no admission by the
first
respondent to the allegation of the forgery or to the
questionable circumstances (as alleged by the applicant) under which
the
loan was granted and
:
consent to rescission and setting aside of the sale in execution was
granted in order for the applicant to defend the matter because
a
dispute of fact had arisen. The grant of the application in my view,
did not put an end to the matter. At trial the parties would
then be
subjected to cross-examination to establish the facts that resulted
in the action against the applicant.
[10]
Furthermore,
it would be inappropriate to deal with the issue of the commission
due to third respondent until such time that the
main action is
finalized and it would then be an issue between the first second and
third respondents.
TLHAPI
V V
JUDGE
OF THE HIGH COURT