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[2011] ZAGPPHC 108
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Standard Bank of South Africa v Molwantwa and Another (15043/2009) [2011] ZAGPPHC 108 (5 May 2011)
AIN THE HIGH COURT OF
SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
Case No: 15043/2009
DATE:05/05/2011
In
the matter between:
STANDARD
BANK OF SA
LTD
..............................................................................
APPLICANT
And
MATHLABE
JOSEPH
MOLWANTWA
.........................................................
1st RESPONDENT
CHRISTINA
MITA
MOLWANTWA
..............................................................
2nd RESPONDENT
MAVUNDLA,
J.
[1]
This is an opposed application for summary judgment against the
defendants, for:
(1)
payment in the amount of R1 690 652, 80;
(2)
interest on the aforesaid amount calculated at the rate of 11.95
percent per annum from 5 March 2009;
(3)
An order declaring the property known as ERF 1164 Waterkloof ridge
ext 2, REGISRATION: J.R. GAUTENG, MEASURING 1823 SQUARE METRES
and
held by DEED OF TRANSFER T67258/1990 executable;
(4)
Cots of suite; and
(5)
Further and/or alternative relief.
[2]
It is common cause that the applicant's claim arises from moneys lent
and advanced to the respondents, which are secured by
a covering bond
registered against the immovable property of the respondents
mentioned in paragraph 1 herein above.
[3]
In resisting the summary judgment the respondents have attached,
inter alia, a copy of a judgment of Pretorius J dated on 21
October
2008 granting an order in favour of the first respondent against
Telekom SA. Limited, under Case number 33739,2003, for
payment of an
amount R2, 453,492, 03 together with interest a tempore morae at the
prescribed rate as well as costs. They further
submit that although
Telkom has noted an appeal against the judgment of Pretorius J, they
have been advised that the appeal has
no prospect of success. They
further contend that the aforesaid amount exceed the amount claimed
by the applicant, upon payment
thereof by Telkom they would be in a
position to extinguish their indebtedness to the applicant.
[4]
The respondent further pointed out that the relevant property is
worth R4, 000, 000, 00 and the amount which was outstanding
at the
time the applicant took legal steps against them was R130, 540, 86.
They further contend that the property is their residential
place in
which they live together with their minor children.
[5]
They further submitted that although the applicant had sent them a
letter in terms of section 129 of the Credit Act, they intended
to
refer the matter to a debt counsellor or alternative dispute
resolution agent to try to find a solution to the difficulties
which
flow from a judgment being granted.
[6]
The respondents further submitted that this Court is In terms of Rule
32(5) not obliged to grant the summary judgment against
them but
should exercise its discretion in their favour. They contend that the
grant of a summary judgment, in particular the execution
order
against of property, would infringe upon their constitutional rights
for adequate housing.
[7]
The applicant contended that the respondents have not disclosed a
defence as required by Rule 32(3)(b). They further submit
that the
discretion the court has should not be exercised capriciously.
Reliance in this regard is made of the matter of Breitenbach
v Fiat
SA (Edms) Bpk
1976 (2) SA 226
TPD at 229B-E.
[8]
In terms of Rule 32(3)(b) in a summary judgment application, the
defendant must satisfy the court that he has bona fide defence
to the
action and disclose fully the nature and grounds of the defence and
the material facts relied upon.
[9]
In the Breitenbach v Fiat SA (Edms) Bp/c
1
the court said that: "...if, on the material before it, the
Court sees a reasonable possibility that an injustice may be done
if
summary judgment is granted, that is sufficient basis on which to
exercise its discretion in favour of the defendant."
[10]
It brooks no argument that the respondents have constitutionally
enshrined rights, inter alia, to life, housing, and dignity
2
,
in casu they stated that the relevant property is worth R4,000, 000,
00. The amount that was owing at the time of the applicant
taking
measures to recover what it was owed was R130, 540, 86. They have
also shown that they have a potential amount of R2, 453,492,
03 that
would enable them to expunge the applicant's claim. These factors
require that before I grant the order of execution of
the immovable
property of the respondents, I must have regard to the respective
interest of the parties, the stringent nature of
summary judgment
applications.
[11]
The applicant has as much rights as the respondents. It is entitled
to be paid what is due to it. Were I to grant an order
to declaring
the immovable property of the respondents executable, they run the
risk of loosing a roof over their heads. Not only
they would suffer
the consequences of such steps but even their minor children. On the
other hand, in the event I do not grant
such order, the applicant
will not suffer much prejudice because it can proceed against the
defendants by selling their movable
properties to defray the amounts
outstanding.
[12]
I am of the view that, where it is sought, an order that has the
potential of encroaching drastically upon the fundamental
rights of a
person, the applicant who seeks such an order, must first exhaust
other less invasive remedies before resorting to
a cause that is much
more invasive. I am further of the view that in matters of this
nature, such as in casu, the applicant must
place before the court
evidence showing the market value and
forced
value of the immovable property.
3
The court should then consider the amount due to the applicant, and
the value of the property and decide what would be just in
those
circumstances.
[13]
Although, in my view, the respondents have not disclosed a defence in
the strict sense as envisaged in rule 32, however, in
the exercise of
my discretion, I am disinclined to grant the applicant the relief
sought; vide Sylko Paper Co. (Pty) Ltd v Castle
Supremarket.
4
"
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[16] In the result I make the following order:
1.
That the application for summary judgment is refused and the
respondents are given leave to defend.
2.
That the costs of the summary judgment application are reserved for
decision at the trial.
N.M.
MAVUNDLA
JUDGE
OFTHE HIGH COURT
DATE
OF JUDGMENT : 05/05/2011
APPLICANT'S ATT : FINDLAY
& NIEMEYER INC.
APPICANT'S
ADV: MR. ST. POTGIETER
RESPONDANTS' ATT: SHAPIRO
& SHAPIRO
RESPONDANTS ADV : MR. M.
HAS KINS
1
Supra
at
229H
2
Occupiers
of 51 Olivia Road & Main Street, JHB v City of JHB
[2008] ZACC 1
;
2008 (3) SA
208
(CC)
at2I6E.
3
Vide
Firtsrand Bank Ltd v Maleke and Three Similar cases
2010 (1) SA 143
(GSJ) at pages 153-155 pargraphs [8]-[59].
4
1977
(3) SA 698
"(N.P.D.) at 700F.