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[2017] ZAECPEHC 12
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Changing Tides 17 (Proprietary) Limited N.O. v Ruiters and Another (1810/2012) [2017] ZAECPEHC 12 (16 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 1810/2012
In
the matter between:
CHANGING
TIDES 17 (PROPRIETARY) LI MITED N.O.
Applicant
and
JOHN
MARK RUITERS
1
st
Respondent
I.D:
[6...]
PRISCILLA
BERTHA
RUITERS
2
nd
Respondent
I.D:
[6...]
[Married
in community of property to each other]
JUDGMENT
MBENENGE
J:
[1]
This action, which initially budded into and was destined to be a
default judgment application, ripened, in the course of time,
into a
contested application that served before me in the opposed motion
court.
[2]
The factual background to the matter is without complication. Because
of the nature of the proceedings, I shall use the appellations
“
applicant
”
and “
respondents
”
as denoting the parties in this matter. The applicant, in its
capacity as the duly appointed trustee of the South
African Home
Loans Guarantee Trust and registered bond holder over the subject
property which bond was registered as security for
a home loan
agreement entered into between the applicant and the
respondents, issued summons seeking payment of R376 526.91
against the first and second respondents (the respondents), jointly
and severally, the one paying, the other to be absolved, together
with interest and costs, as also an order declaring the immovable
property subject to the litigation
[1]
executable. It is common cause that the respondents are husband
and wife, married to each other in community of property.
[3]
After the respondents fell into arrears in their redemption of the
loan the applicant instituted the action referred to in paragraph
2
above during June 2012. The respondents thereupon entered
an appearance to defend the action. Thereafter, the
parties
concluded a settlement agreement whereby the respondents
inter
alia
acknowledged that they lacked a
bona fide
defence to
the main action “
whatsoever.”
[4]
In terms of the settlement agreement ( the agreement) the parties
recorded that the full instalment as referred to in the agreement
as
on 22 October 2015 was the amount of R4 133.22 per month, but
would increase or decrease based on the terms of the initial
credit
agreement underpinning the main action.
[5]
The respondents further undertook to proceed paying R4 133.22
per month towards the outstanding amount, together with an
additional
amount of R1866.78 per month “
towards the current arrears
balance in the amount of R19 080.43 for a total payment of
R6000.00 per month, commencing at the
end of November 2015 and after
on or before the 1
st
of each and every
subsequent month, until the arrears have settled, where after the
full instalment currently in the amount of
R4 133.22 will
resume
”.
[6]
In no time, subsequent to the conclusion of the agreement, the
respondents failed to pay the agreed instalments, so much so
that
when the summons was issued the respondents had fallen into arrears
in the sum R16 538.21, such arrears having accumulated
partially
as a result of sporadic and/or non-payment of the instalment from 3
March 2008 to 1 February 2016.
[7]
According to the relevant certificate of balance, as at 24 February
2016 the respondents were indebted to the applicant in the
sum of
R365 308.46, together with interest thereon “
calculated
at the rate of 8.70% per annum compounded monthly in arrears from 01
February 2016 to date of payment (being the base
rate of 6.70% as the
01 February 2016 plus 2.00%)
.”
[8]
The applicant thereupon resorted to the instant application, pursuant
to the provisions of rule 41(4) of the Rules of Superior
Court
Practice.
[2]
[9]
The application attracted opposition from the respondents’
camp. As far as it could have been ascertained, from
a reading
of the respondents’ opposing affidavit, the following technical
defences have been raised, namely:
(a)
that the agreement had been entered into on 1 December 2015 whilst
the applicant had signed
it on a different date;
(b)
that the quest for judgment pursuant to the agreement constituted an
abuse of the process
of court; and
(c)
that proceeding with and obtaining the judgment sought would in
effect infringe the respondents’
constitutional rights to
adequate housing.
[10]
These contentions only need to be stated in order to be rejected.
It is quite clear that in concluding the agreement
the parties
intended to bring finality to the initial litigation.
[3]
That was achieved, albeit that in the course of time the respondents
defaulted, resulting in the instant application being resorted
to.
The applicants’ replying affidavit makes it plain that the
applicant signed the agreement during March 2016
and that reference
to “
1
December 2015
”
as being the date on which the agreement was signed came about
through inadvertence. The applicant, in any event,
enforced the
agreement after March 2016. The respondents were not prejudiced
by this obvious error. There is nothing
abusive about the
launch of the application at the opportune stage, pursuant to the
breach of a valid and binding agreement, in
terms of the applicable
regulatory framework (i.e rule 41(4)).
[11]
Much as the respondents have the fundamental right of access to
adequate housing,
[4]
that right
is not absolute as it may be limited to the extent that the
limitation is reasonable and justifiable in an open and
democratic
society based on human dignity, equality and freedom, taking into
account all relevant factors.
[5]
[12]
It is now trite law that a family home may be declared executable
when a defendant falls into arrears under a home loan agreement.
[6]
Courts have accordingly resorted rather to fixing conditions as to
time of the sale in execution and the resulting vacation of
the
property, than otherwise.
[13]
At the hearing of the application the contentions raised in the
respondents’ opposing affidavit were not pursued.
I
found that stance to have been prudent. The respondents were
merely content to seek a further indulgence – a postponement
(from the Bar) of the matter to enable them to raise funds and place
themselves in a position to remedy their default and avoid
losing the
property to execution. The postponement application, which was
vehemently opposed by the applicant, was refused
as it was indeed
clear that the respondents were being dilatory, to the detriment of
the applicant. No reasonable prospect
of reinstating the credit
agreement within a short period of time was pointed to. The
history of this matter reveals that
the applicant has been more than
benevolent towards the respondents. The respondents should also
derive consolation from
knowing that section 129(3) of National
Credit Act 34 of, 2005 protects consumers who face the sale in
execution of their properties
by allowing them to reverse the credit
provider’s election to foreclose, conditional upon the consumer
fulfilling the requirements
for reinstatement (i.e payment of all
amounts that are overdue).
[7]
[14]
I am satisfied that the applicant has made out a case for the grant
of relief it is seeking.
[15]
I therefore order that:
(a)
the respondents pay the applicant the sum of R376 526.91,
together with interest thereon
at the rate of 7.60% per annum
compounded monthly and calculated from 2 May 2012 to date of payment;
(b)
the property known as “
ERF [1...] B., IN THE NESLON MANDELA
BAY METROPOLITAN MUNICIPLAITY, DIVISION OF PORT ELIZABETH, EASTERN
CAPE PROVINCE, IN EXTENT:
544 SQUARE METRES, HELD BY DEED OF TRANSFER
T[...] SUBJECT TO THE CONDITIONS THEREIN CONTAINED OR REFFERED TO”
(the property) is declared executable;
(c)
the Registrar of this Court is hereby authorised to issue a warrant
of attachment in respect
of the property; and
(d)
the defendants shall pay the costs of this application on the
attorney and client scale,
save that such costs shall be taxed on the
Regional Court scale.
___________________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant
:
K D
Williams
Instructed
by
: Velile
Tinto & Associates Inc
PRETORIA
C/O
Jacques Du Preez Attorneys
96
Mangold Street
Newton
Park
PORT
ELIZABETH
The
respondent
: In
person
Date
heard
: 9
February 2017
Judgement
delivered
: 16
February 2017
[1]
Erf
[1...] B., in the Nelson Mandela Bay Metropolitan Municipality,
Division of Port Elizabeth, Eastern Cape Province, in extent:
544
square metres, held by Deed of Transfer T[....] (the property)
[2]
Rule
41(4) provides:
“
(4)
Unless such proceedings have been withdrawn, any party to a
settlement which has been reduced to writing and signed by the
parties or their legal representatives but which has not been
carried out, may apply for judgment in terms thereof on at least
five days’ notice to all interested part
ies.”
[3]
Cf
Siebort & Honey v Van Tonder
1981(2) SA 146 (O) (481)
[4]
Section
26(1) of the Constitution of the Republic of South Africa Africa,
19996 (the Constitution)
[5]
Section
36(1) of the Constitution
[6]
See
Absa Bank Ltd vs Paterson
2013
(1) SA 481
(CC) para [37], where it was held:
“
The
fact that the mortgaged property is the defendant’s family
home is, in itself, not a reason to deny the mortgagee’s
contractual right to realise its security. Indeed, by giving
the property in security the defendant voluntarily derogated
from
the extent of his full dominium over the property in favour of the
bank. He did so for his own benefit and upon an
undertaking in
favour of the bank. If he defaulted in his payments
obligations to the bank, the full amount owed by him
would become
immediately due and payable, and the property given as security
could be sold to realise the funds to settle the
debt.”
[7]
Also
see
Nkata
v First Rand Bank Ltd & Others
2016(4) SA 257 (CC) at para [131] where it was held that section
129(3) amounts to a statutory remedy for rendering a default
judgment and attachment order ineffectual in an where the credit
agreement has been reinstated by the payment of all overdue
amounts
and allied administrative and legal costs by the consumer
.