About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 8
|
|
FirstRand Bank Ltd v Meyer and Another (3483/10) [2011] ZAECPEHC 8 (17 March 2011)
IN
THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case No.: 3483/10
Date Heard: 01 February
2011
Date Delivered: 17 March
2011
In
the matter between:
FIRSTRAND
BANK LIMITED
…............................................................................
Plaintiff
and
JOHANNES
JACOBUS MEYER
…..........................................................
First
Defendant
FRANCINA
MEYER
…........................................................................
Second
Defendant
JUDGMENT
EKSTEEN
J:
[1] This is an
application for summary judgment. On 18 November 2010 the plaintiff
issued summons against the defendants, who were
married to each other
in community of property, based on four credit agreements, in terms
of which agreements sums of money were
lent and advanced to the
defendants. The agreements were entered into in 1983, 2004, 2005 and
2006 respectively. The total outstanding
amount claimed is R154
337,41 together with interest thereon. Each of the loans was secured
by a mortgage bond registered over
the same immovable property, being
Erf 186, Despatch (the property) for the due fulfilment by the
defendants of their obligations.
[2] In the summons the
plaintiff seeks judgment in respect of the above stated capital sum
and seeks a further order that the property
bonded as security for
the due fulfilment by the defendants of their obligations be declared
executable. The plaintiff alleges
that the parties concluded the four
credit agreements in the total sum of R158 500, each agreement being
secured by the registration
of a bond over the property. The
agreements were ultimately consolidated into one loan. Defendants
have failed to honour their
obligations in terms of the consolidated
agreement in that they fell into arrears as a result of which, the
plaintiff contends
that in terms of the agreements, the full amount
outstanding has now become due and payable.
[3] It is common cause
that at some stage prior to the issue of summons the defendants
applied under the National Credit Act, No.
34 of 2005 (“the
NCA”) for debt review in terms of section 86 of the NCA. The
application was successful and the defendants’
debts were
restructured by an order made in terms of section 87 of the NCA.
Plaintiff alleges that notwithstanding the successful
debt review the
defendants were in default of the court order restructuring their
liabilities and that they had failed to make
payments in accordance
with the restructured payment plan.
[4] In the affidavit
resisting summary judgment the defendants raised two defences
in
limine
in terms of the NCA. Firstly, the defendants set out
their restructuring order and contend that they have consistently
complied
with the obligations under the restructuring order.
Secondly, the defendants contend that no notice had been received
prior to
the issue of summons herein as envisaged in section 129 of
the NCA. When the matter was called before me Ms
Beneke
, on
behalf of the defendants, acknowledged that on a proper reading of
the papers placed before the court the defendants were indeed
in
default of their obligations under the restructuring order. In these
circumstances it was acknowledged that it was not necessary
for the
plaintiff to have given notice in terms of section 129 of the NCA.
The defences raised in terms of the NCA were accordingly
abandoned,
correctly in my view.
[5] Ms
Beneke
raised three arguments. Firstly, it is argued that a substantive
defence has been set out in the papers and accordingly the defendants
should be granted leave to defend. Secondly, in the event of my
holding that a substantive defence has not been made out Ms
Beneke
argues that the deponent to the summary judgment application,
ex
facie
his affidavit, does not have personal knowledge of the
facts which are alleged in the summons. On this basis I am urged to
dismiss
the application. Thirdly, in the event of my not upholding
either of the first two arguments Ms
Beneke
has urged me to
exercise my discretion under the new amended Rule 46 of the Uniform
Rules of Court and to refuse to declare the
property executable.
[6] The first defence was
argued somewhat tentatively and is easily dealt with. In the matter
of
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture
2009 (5) SA 1
(SCA) at 11G-12D the Supreme Court of
Appeal considered the procedure of summary judgment and stated as
follows:
“
The
rationale for summary judgment proceedings is impeccable. The
procedure is not intended to deprive a defendant with a triable
issue
or a sustainable defence of her/his day in court. After almost a
century of successful application in our courts, summary
judgment
proceedings can hardly continue to be described as extraordinary. Our
courts, both of first instance and at appellate
level, have during
that time rightly been trusted to ensure that a defendant with a
triable issue is not shut out. In the
Maharaj
case
at 425G-426E, Corbett JA was keen to ensure, first, an examination of
whether there has been sufficient disclosure by a defendant
of the
nature and grounds of his defence and the facts upon which it is
founded. The second consideration is that the defence so
disclosed
must be both
bona
fide
and good in law. A court which is satisfied that this threshold has
been crossed is then bound to refuse summary judgment. Corbett
JA
also warned against requiring of a defendant the precision apposite
to pleadings. However, the learned judge was equally astute
to ensure
that recalcitrant debtors pay what is due to a creditor.”
It is therefore required
of a defendant seeking to resist summary judgment to disclose the
nature and the grounds of his defence
with sufficient detail and
clarity to satisfy the court of the
bona fides
of the defence.
In addition he must set out facts which, if proved at the trial,
would constitute a defence good in law.
[7] The foundation for
the argument raised on behalf of the defendants, in this matter is to
be found in the fact that one of the
original loans was extended by
Saambou Bank and one of the bonds was registered in favour of Saambou
Bank. The defendants allege
as follows:
“
Saambou
Bank was placed under curatorship during February 2002 and First
National acquired their home loan book at the same time.
It was subsequently
reported that Saambou Bank had overcharged its clients and the First
National Bank persisted with the practice.
First National Bank
subsequently started a process of recalculation (of) clients interest
from April 1989 to 19 June 2006.
As is evident from my
Saambou Bank bond, attached as SJA 57 and further to the applicant’s
papers, my bond was in existence
during the period in question as my
bond was registered on 28 April 1983.
I, through my son, lodge
a query to have my account recalculated. To date I still await
feedback on this issue.
In view of the above I
oppose the content of the balance certificate …”
[8] The plaintiff has
alleged in the summons that it acquired the rights of Saambou
National Bank by way of cession.
[9] It may be seen from
the manner in which the defence is set out in the opposing affidavit
that the high-water mark of the defence
set out is that it has been
“reported” that Saambou Bank had “overcharged its
clients”. Defendants rely
for this averment on an article by
one Bianca Capazorio published on 13 January 2011 in “SA
Reporter”. Nothing is stated
of the standing of either the
author or the publication. No facts are put up which may suggest that
the repayments on the defendants’
loan was or may have been
effected by such malpractice and no basis for their subjective
suspicion is alleged. I am of the view
that if everything which has
been alleged in the opposing affidavit were to be proved at the trial
it would not constitute a
bona fide
defence good in law.
[10] The second argument,
as I have stated, is that the deponent to the founding affidavit does
not have personal knowledge of the
events to which he deposes.
[11] This argument may be
swiftly dealt with. The deponent in the founding affidavit declares
as follows:
“
1.
I am an adult male in the employ of the Plaintiff herein as
Operations Manager Arrears – Legal, and I am duly authorised
to
depose to this affidavit. All the records of the Plaintiff relating
to this action are under my control, and I have personally
inspected
same, and accordingly I can and do swear positively to the facts set
out in the Affidavit and Summons.”
[12] In reply this
paragraph is admitted. On the papers it is accordingly common cause
that the deponent to the summary judgment
application can swear
positively to the facts set out in the summons.
[13] Notwithstanding the
admission I shall assume for purposes of this judgment that it
remains open to the defendants to raise
the argument.
[14] Where the plaintiff
is an artificial person, as in the present case, it cannot itself
make an affidavit and the facts must
be deposed to by “some
other person or persons” if need be. In
Barclays National
Bank Ltd v Love
1975 (2) SA 514
(D) at 515H-517B Miller J
concluded that the manager of a bank would by virtue of his/her
office have personal knowledge of the
extent to which a client had
overdrawn his/her account and would be entitled to rely upon the
bank’s records in that regard.
This approach was approved in
Maharaj’s
case. Facts of which the deponents to
affidavits in support of summary judgment should have knowledge are
the facts on which the
cause of action is based, namely those facts
in the Particulars of Claim or summons, as the case may be. It is not
expected of
the deponent to the summary judgment application to have
personal knowledge of facts upon which the defendant might seek to
base
a defence, real or bogus, additional to or extraneous to the
facts on which the cause of action is based. (See
Barclays
Western Bank Ltd v Bill Jonker Factory Services(Pty) Ltd and Another
1980 (1) SA 929
(SE) at 937A-B.)
[15] In
Standard
Bank of South Africa Ltd v Secatsa Investments
(
Pty)
Ltd
and Others
1999 (4) SA 229
(CPD) Van
Heerden AJ, as she then was, stated as follows:
“
It
is clear from the case law that first hand knowledge of every fact
which goes to make up the plaintiff’s cause of action
is not
required and that, where the plaintiff is a corporate entity, the
deponent may well legitimately rely for his/her personal
knowledge of
at least certain of the relevant facts and his/her ability to swear
positively to such facts, on records in the companies
possession.”
[16] In the present case
deponent to the summary judgment affidavit, Mr Freeborough, is the
Operations Manager, Arrears –
Legal in the plaintiff bank. He
records that all the plaintiff’s records relating to the action
are under his control and
he has inspected them. A similar argument
to that raised by the defendants in respect of the said deponent was
considered by Satchwell
J in
Firstrand Bank Ltd v Carl Beck
Estates (Pty) Ltd
2009 (3) SA 384
at 391H-392B where she held
as follows:
“
In
the present instance the deponent to the founding affidavit is the
'operations manager arrears legal', which title clearly indicates
knowledge of arrears in moneys owing to plaintiff and legal
responsibility therefor. In the present case the deponent does not
ask the court to rely on inferences to be drawn.
He
states
that the facts contained in the affidavit fall within his personal
knowledge and are based on records and documents available
to him. He
is indeed pre-eminently the person who would have knowledge of the
relevant facts. It may well be that the 'relationship
managers' with
whom the second respondent dealt created or accessed the same records
and documentation to which the deponent had
access and upon which he
relied in deposing to the affidavit.”
I agree with these
findings.
[17] Ms
Beneke
has placed considerable reliance on the recent decision in
Firstrand
Bank Ltd v Beyer
2011 (1) SA 196
(GNP). That matter too dealt
with a loan advanced by Saambou Bank and secured by a bond over
immovable property. In that matter
the deponent stated that the
plaintiff acted as agent for Saambou Bank Limited. In that context
Ebersohn AJ noted at p. 200C that
although the deponent to the
summary judgment application refers to her knowledge of “records”,
the records are not
identified at all and one is left with doubt
whether it is the records of Firstrand Bank Limited or Saambou Bank
Limited, and whether
the records were complete or not.
[18] I consider that the
position would indeed be different had the affidavit to the summary
judgment application been attested
to by an employee of an agent of
the plaintiff. It is instructive to note that the judgments upon
which reliance are placed by
Ebersohn AJ deal predominately, if not
exclusively, with situations where the founding affidavit in the
summary judgment proceedings
had been attested to by the attorney on
behalf of the plaintiff. In these circumstances Ebersohn AJ might
rightly have been uncertain
as to the records in possession of the
deponent. In the present matter, however, the deponent is indeed an
office-bearer of the
plaintiff who would ordinarily in the discharge
of his duties obtain personal knowledge of arrear payments and the
extent thereof.
He declares that he is in possession of all the
plaintiff’s documentation relating to the cause of action. It
is not in dispute
on the papers that this is correct. In the
circumstances I do not consider that the second argument can succeed.
[19] The third argument
raised finds no application to the summary judgment and is directed
at the discretion which the court holds
in terms of the amended Rule
46(1)(a)(ii) of the Uniform Rules of Court in respect of the order
sought to declare the property
executable. Rule 46(1)(a)(ii) reads as
follows:
“
46
Execution - Immovables
(1)
(a)
No
writ of execution against the immovable property of any judgment
debtor shall issue until-
(i)
…
(ii)
such immovable property shall have been declared
to be specially executable by the court or, in the case
of a judgment
granted in terms of rule 31 (5), by the registrar: Provided that,
where the property sought to be attached is the
primary residence of
the judgment debtor, no writ shall issue unless the court, having
considered all the relevant circumstances,
orders execution against
such property. “
[20]
Previously the process of execution in the High Court was similar to
that which existed in the
Magistrate’s
Court. Once a judgment was granted (in undefended actions for a
liquidated debt it may have been granted by the
registrar) and the
judgment debt was not paid, the judgment creditor was entitled to
execute against the property of the judgment
debtor in satisfaction
of the judgment. It required the judgment creditor to proceed first
against movable property. If insufficient
movable property was found
to satisfy the judgment debt the judgment creditor would then proceed
to attach immovable property to
be sold in execution without further
intervention by the courts
.
[21] In the Magistrate’s
Court the procedure was embodied in section 66(1) of the Magistrate’s
Court Act, 32 of 1944
which provided as follows:
“
Whenever
a court gives judgment for the payment of money … such
judgment in case of failure to pay such money forthwith …
should be enforceable by execution against the movable property and,
if there is not found sufficient movable property to satisfy
the
judgment …, or the court, on good cause shown, so orders, then
against the immovable property of the party against whom
such
judgment has been given …”
[22] The provisions of
section 66 of the Magistrate’s Court came under scrutiny in the
Constitutional Court in the matter
of
Jaftha v Schoeman and
Others
;
Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2)
SA 140
(CC). The Constitutional Court considered the provisions of
section 26(1) of the Constitution of the Republic of South Africa,
Act 108 of 1996 (the Constitutiion), which enshrines “the right
to have access to adequate housing”. The Constitutional
Court
held that section 26(1) embodies both a positive and a negative
aspect. Positively, the provision obliges the State to take
measures
to achieve the progressive realisation of the right. In its negative
aspect, the right operates horizontally: it obliges
private parties
not to interfere unjustifiably with a person’s existing access
to “adequate housing”. After considering
the negative
component Mokgoro J said it was not necessary to delineate all the
circumstances in which measure will constitute
a violation of such
right but that: “… at the very least, any measure which
permits a person to be deprived of existing
access to adequate
housing limits the rights protected in section 26(1)”. She then
proceeded to add that nonetheless, a measure
may be a reasonable and
justifiable limitation of the right to access to “adequate
housing” as contemplated in section
36(1).
[23] The amendment to
Rule 46 of the Uniform Rules of the High Court serves merely to bring
the rule in the High Court in line with
the findings in
Jaftha’s
case.
[24]
Jaftha’s
case concerned the sale in execution which deprived the debtor of
title to a modest home which had been built by the State as part
of a
national housing scheme and which had been acquired with the
assistance of a state subsidy. The debtor had incurred a relatively
trifling debt which was not secured and was unrelated to the
property.
[25] It was accepted in
Jafhta’s
case that the forfeiture in issue was a
deprivation of “adequate housing” as envisaged in section
26(1) of the Constitution.
Not every sale in execution would,
however, constitute a deprivation of “adequate housing”.
The concept of “adequate
housing” is necessarily
relative. (See
Standard Bank of South Africa Ltd v Saunderson
and Others
2006 (9) BCLR 1022
(SCA) at 1029; and
Government
of the Republic of South Africa v Grootboom
2000 (11) BCLR
1169.)
[26] In the present
instance the defendants have not taken the court in their confidence
in respect of the value of the property.
The extent of the bonds do
however give some indication of its minimum value. The loans advanced
against the security of the house
amounted to R158 500. The
defendants have filed a supplementary affidavit herein in order to
set out those considerations which
they have urged me to consider in
exercising a discretion in terms of Rule 46(1)(a)(ii). They allege
that there is no risk to the
plaintiff of suffering any loss as there
is sufficient equity in the property to cover the debt if it is sold
upon their demise.
It can therefore safely be assumed that the
property has a value in excess of R158 500. The outstanding balance
on the bonds amounts
to R154 337,45 which is the amount which the
plaintiff currently claims.
[27] The nature of the
property in issue in this matter is therefore clearly markedly
different from that which was in issue in
Jaftha’s
case. The defendants have, nevertheless, alleged that the sale in
execution will infringe their rights in terms of section 26(1)
of the
Constitution. The first defendant, on behalf of the defendants, has
filed a supplementary affidavit setting out those facts
upon which
reliance are placed. He states as follows:
“
2.
I wish to bring the
following circumstances to the attention of the Honourable Court for
considering:
2.1 I am a 65 year old
Telkom pensioner with ailing health.
2.2 I am hearingly
impaired and suffered a stroke 5 years ago.
2.3 I suffer from chronic
high blood pressure and cholesterol for which I received medication
on a monthly basis.
2.4 I am a diabetic for
which I receive chronic medication.
2.5 My medical aid
provides ± R8 000.00 per annum for chronical illness
treatment. My monthly in this regard is ±
R1 800.00 per month.
This means that my medical aid contribution for chronical medication
is depleted after ± 4 months of
the year, after which I must
foot the entire medical bill for the remaining months of the year.
2.6 My wife, the Second
Respondent, is 60 years old and she suffers from Alzheimer’s.
2.7 My wife has a small
income of R3 040.00 per month which she contributes towards the
general expenses of our household.
3.
This dwelling house,
which the Plaintiff wishes to attach, is our primary and only
residence. My wife and I have been living there
since 1983 and still
occupy the dwelling.
4.
In the event of the
Honourable Court granting the Plaintiff’s application my wife
and I will suffer immense hardship as we
have nowhere else to go.
5.
With my small pension
income of R4 290.00 per month and my high medical expenses, we will
not be able to afford alternative accommodation.
6.
The alleged prejudiced of
(
sic)
the Plaintiff cannot be compared to the hardship and
prejudice which my wife and I will be suffering if the application is
granted.”
[28] The history of the
matter which emerges from the summons itself shows the following:
In 1983 the defendants
borrowed R24 500 from Saambou Bank and a bond to the extent of R26
500 was registered in favour of Saambou
Bank over the property. The
reason for this loan is not stated in the papers, although it would
appear that it was probably entered
into in order to acquire the
property. Nothing turns on this. In 2004 the defendants again
borrowed R30 000 from the plaintiff
hypothecating the property as a
second mortgage bond to secure the debt. In 2005 the defendants again
approached the plaintiff
in search of a loan. On this occasion they
borrowed R40 000 from the plaintiff again hypothecating the property
as a third mortgage
bond to secure the debt. In 2006 the defendants
yet again sought to borrow money and a further loan of R40 000 was
advanced to
the defendants by the plaintiff. Again the defendants
hypothecated the property as a fourth mortgage bond to secure the
debt.
[29] On each occasion the
defendants were able to obtain such loans by virtue of them offering
the property as security. On each
occasion a bond was registered over
the property.
[30]
Jaftha’s
case did not decide what the effect of the registration of a bond
would be upon section 26(1) of the Constitution (see
Saunderson’s
case
supra
at p. 1030 para [18]). Mokgoro J did, however,
state as follows in
Jaftha’s
case:
“
Another
factor of great importance will be the circumstances in which the
debt arose. If the judgment debtor willingly put his/her
house up in
some or other manner as security for the debt, a sale in execution
should ordinarily be permitted where there has not
been an abuse of
the court procedure. The need to ensure that homes may be used by
people to raise capital is an important aspect
of the value of a home
which courts must be careful to acknowledge.”
There has been no
suggestion of any abuse of the court procedure in this matter.
[31] In
Saunderson’s
case Cameron JA and Nugent JA, in writing the judgment of court, held
as follows in this regard at p. 1030 para [19]:
‘
The
present case does not require us to decide whether section 26(1) may
be compromised when the rights conferred by a mortgage
bond are
sought to be enforced in cases where the property concerned does in
fact constitute “adequate housing”. But
even accepting
for present purposes that execution against mortgaged property could
conflict with section 26(1) such cases are
likely to be rare. It is
particularly hard to conceive of instances where a mortgagee’s
right to reclaim the debt from the
property will be denied
altogether; and it is therefore not surprising that the
Constitutional Court noted in
Jaftha
that in the absence of abuse of court procedure – and none is
alleged here – a sale-in-execution should ordinarily
be
permitted against even a home bonded for the debt sought to be
reclaimed. Nor can the approach differ depending on the reasons
the
property owner might have had for bonding the property, or the
objects on which the loan was expended. Mr
Marcus
for the
amici
,
pointing out that the instruments before us are covering bonds (as
mortgage bonds usually are), which observe no such distinctions,
suggests in effect that execution should “ordinarily”
follow only where the bond was taken out to fund inessential
lifestyle choices; but this gives no weight to the fact that in all
cases the bond-holders claim in its essence is against the
property,
and that its entitlements springs from a limitation in title the
owner chose to accept in obtaining the loan.’
[32] It seems to me that
the manner in which these debts arose and the registration of the
bond in each case over the property,
which is of substantially
greater value than that in issue in
Japhta
, does in
this case give rise to an entitlement on the part of the bond-holder
to an order that the property be declared executable.
[33] I have been referred
by Ms
Beneke
, on behalf of the defendants, to two cases
from which she seeks support in her submission that I should exercise
my discretion
in favour of the defendants. The first is the matter of
Firstrand Bank Ltd t/a First National Bank v Seyffert, Jan
George Stephaus & Another and three similar cases
[2010]
JOL 26332
(GSJ). In this matter defendants had all applied for debt
review in terms of the NCA. The plaintiff had, as it was entitled to
do, given notice in terms of the provisions of section 86(10) of the
NCA to terminate the debt review process in respect of the
particular
credit agreement upon which the plaintiff relied. In each of these
cases Willis J granted a summary judgment but added,
however, the
following:
“…
I
consider that, although it would be right to grant the applicants
summary judgment for the debts due to them, it would be an
appropriate exercise of a discretion not to make orders that the
immovable property in question be declared to be specially
executable.
After all, among the clear purposes of the NCA is to
afford a debtor a reasonable opportunity to discharge a debt on terms
that
may be less onerous than may otherwise be the case.”
[34] The second matter to
which reference was made is
Absa Bank Ltd v Ntsane &
Another
[2007] JOL 19031
(T). In this matter Bertelsmann J
considered an application for default judgment. Plaintiff bank had
sued the defendant for an
amount of R62 042,43 said to be owing as
the principle sum under a mortgage bond registered over the
defendants’ property.
The debt became due as a result of the
defendants failure to pay the monthly instalments which had to be
made in terms of their
loan agreement with the bank. The arrear
amount which gave rise to the acceleration of debt was an amount of
R18,46. The court
highlighted the fact that the bank was seeking to
deprive the defendants of their home whilst the amount that was in
arrears was
trifling. It was this consideration, of the trifling
arrears which triggered the action, which weighed heavily with
Bertelsmann
J.
[35] These matters appear
to me to be distinguishable from the present. In the present case the
defendants voluntarily secured loans
of substantial proportion by the
registration of the bonds. The last of these debts was incurred in
2006. In August 2009 the defendants
obtained a restructuring order in
terms of section 87 of the NCA. The papers relating to this
restructuring are annexed to the
defendants answering affidavits. It
reveals that the defendants had undertaken in terms of the original
bond agreements to make
repayments which at the time of the
restructuring order amounted to R1 722,54 per month. In accordance
with the restructuring order
the onerous effect of this commitment
was ameliorated and defendants were afforded the opportunity to pay
off their debt over a
longer period by making payments of R1 134,10
per month. At the time of argument of the summary judgment
application before me
it was common cause that by November 2010 the
defendants had defaulted on the restructuring order and were in
arrears in respect
of such payments to the tune of R2 922,36.
[36] In the present case
therefore the arrears on the repayments due in terms of the loan
agreements was not trifling at all. Defendants
being unable to meet
those commitments sought debt review, as they were entitled to do.
The object of this process, as stated by
Willis J in the
Seyffert
matter referred to above is to afford the debtor a reasonable
opportunity to discharge a debt on terms that may be less onerous
than may otherwise be the case. In the present case the defendants
have been afforded this opportunity and have exhausted this
process.
Despite the reprieve granted to them they have been unable to meet
the restructured commitment. They have again fallen
in arrears even
as measured against the restructured commitment. These arrears do not
seem to me, in their context, to be trifling.
Within a period of
fourteen months of the granting of the restructuring order the
defendants have fallen in arrears by nearly three
instalments.
[37] In all the
circumstances the plaintiff is entitled to the relief which it seeks.
In the result the
following order is made:
1. There will be judgment
in favour of the plaintiff for payment of the amount of R154 337,53.
2. The defendants are
ordered to pay interest on the said amount of R154 337,45 at the rate
of 9.8%, calculated daily and compounded
monthly as provided for in
the said bonds with effect of 1 November 2010 to the date of payment,
both dates inclusive.
3. The property specially
hypothecated being
ERF 186 DESPATCH, IN THE
NELSON MANDELA BAY METROPOLITAN MUNICIPALITY AND DIVISION OF
UITENHAGE, PROVINCE OF THE EASTERN CAPE
IN EXTENT: 860 SQUARE
METRES
HELD UNDER DEED OF
TRANSFER No. T 14253/1983;
is declared to be
executable.
4. The defendants are
ordered to pay the costs of the suit on a scale as between attorney
and client.
______________________
J W EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances:
For Plaintiff
: Adv
Mullins instructed by Spilkins, Port Elizabeth
For Defendants:
Adv Beneke instructed by Van Vollenhoven & Associates, Port
Elizabeth