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[2017] ZAECPEHC 34
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Nedbank Limited v Antoniou (1150/2000) [2017] ZAECPEHC 34 (22 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: 1150/2000
In
the matter between:
NEDBANK
LIMITED
Applicant/Plaintiff
And
JULIANA
ANTONIOU
Respondent/Defendant
JUDGMENT
BESHE,
J:
[1]
Respondent was found liable for payment of three amounts as a result
of her son’s failure to pay debts owed by him to
the applicant
(Nedbank Limited). This was in respect of three separate loan
accounts. Respondent had signed a surety agreement
as co-principal
debtor with her son in respect of these loan accounts. The amounts
for which respondent was found liable are:
R308
624.67 plus interest;
R35
984.86 plus interest; and
R81
699.27 plus interest respectively.
The
order directing the respondent to pay these amounts to the applicant
was made on the 1 June 2016 after a trial that proceeded
before
Revelas J
.
[2]
It appears to be common cause that following
Revelas
J’s
judgment, attempts were made to
attach respondent’s movable assets in satisfaction of the said
judgment. This was by means
of writ of execution dated 19 September
2016. The said writ was served on the 26 October 2016. The Sheriff
found no attachable
assets belonging to the respondent and filed a
nulla bona
return.
This then led to the launching of the present application.
[3]
In this application, leave is sought for the issuing of a writ of
execution against the immovable property of the respondent,
being an
unimproved piece of agricultural land covering 9,7565 hectares. This
application was launched in January 2017.
[4]
Respondent duly filed notice of her intention to oppose the
application. At the time attorneys
Theron and
Vennote
were acting for her. There having
been no opposing affidavit filed within the stipulated time,
applicant had the matter set down
for hearing as part of the
uncontested opposed roll on the 30 May 2017.
[5]
Prior to that however respondent had purported to file a notice of
application for leave to appeal
Revelas J’s
judgment. However on the 15 May 2017 a notice
of withdrawal as respondent’s attorney of record from
Theron
and Partners
came to hand together with a
withdrawal of application for leave to appeal. The notices emanated
from
Theron and Partners
,
apparently under the hand
Mr Theron Junior
,
who also indicated
Mr Theron Senior
,
due to his advanced age as well as other reasons is not in a position
to represent the respondent.
[6]
On the 30 May 2017 respondent appeared in court in person and
apparently sought a postponement of the matter in order for her
to
arrange for a legal representative. The matter was postponed until
the 20 June 2017. Respondent was ordered to file her opposing
affidavit by 12h00 on Thursday the 15 June 2017. She was also ordered
to pay the costs that were occasioned by the postponement.
[7]
On the 20 June 2017 and without filing her opposing affidavit,
respondent appeared in person and once again asked that she be
given
an opportunity to secure legal representation. It would appear that
she had made an effort to secure legal representation
which effort
was however in vain. Needless to say, her application from the bar
for a postponement was opposed on behalf of the
applicant. Counsel
for the applicant
Ms Morgan
pointed
out that not only in respect of this application but the progress of
this case was marred by delays that were caused by
the respondent.
She moved for the order sought in applicant’s notice of motion.
[8]
The fact that the matter has a long history was confirmed by the
respondent in her address. She stated that this matter has
been going
on for sixteen (16) years. She also pointed out that she was seventy
two (72) years old. She was suffering from ill
health. She would need
at least three months to get a lawyer who would be ready to take over
the matter and seemingly explore the
possibility of an appeal. It was
not her fault that her lawyer
Mr
Theron
could not act
for her.
[9]
As to why the order sought should not be granted, she stated that she
was innocent, this was a matter between her son and
Mr
Hull
(applicant’s official). She does
not owe anybody, so she contended.
[10]
It is also apparent from
Revelas J’s
judgment that the outcome of this matter (the trial) was delayed as a
result of respondent’s attorney’s conduct / devices.
She
also found that respondent associated herself with this conduct.
[11]
I am not satisfied that respondent has made out a case for the
postponement of the matter. It would appear that she is still
carrying on the same vein as during the trial, namely of delaying the
finalisation of the matter and thereby delay the satisfaction
of the
judgment. The three months period is, according to respondent based
on the fact that the matter has a long history, it will
take a lawyer
at least three months to familiarise himself / herself with the
matter. In my view, that is a matter that can be
determined by a
lawyer not her. Besides, that is not the reason cited by
Spilkin
Attorneys
for not acting for her. Rather a
deposit was required so that counsel can also be briefed.
[12]
I am not persuaded that respondent has proffered any valid reason why
the order sought by the applicant should not be granted.
She cannot
be heard to be saying she is innocent, that the matter is between
Mr
Hull
and her son. She was found to be liable
for the debts in question. She has not placed any facts before me to
show that it will
not be in the interest of justice to grant the
order sought. That there is good cause why it should not be granted.
[13]
Accordingly the following order will issue:
1.
That leave be and is hereby granted to the Registrar of this Court to
issue a Writ of Execution against the immovable property
of the
Respondent, being:
Erf
481 Joubertina, in the Koukamma Municipality, Province of the Eastern
Cape, situated at PJ Retief Street, Joubertina, in extent
9,7565
hectares held in terms of Deed of Transfer T62426/2991;
2.
That leave is granted to the Applicant to attach the abovementioned
property and to arrange its sale in execution to defray the
amount
due by the Respondent to the Applicant in terms of the Judgment of
this Court given in this matter on 1
st
of June 2016;
3.
Ordering the costs of this application to be paid by the Respondent.
_______________
N
G BESHE
JUDGE
OF THE HIGH COURT
PPEARANCES
For
the Applicant :
Adv:
M Morgan
Instructed
by
:
BLC
ATTORNEYS
4
Cape Road
PORT
ELIZABETH
Ref.:
Mr LT Schoeman/wjd/K/35068
Tel.:
041 – 506 3700
For
the Respondent :
Juliana Antoniou
Instructed
by
:
RESPONDENT IN PERSON
304
Salbern Flats
29
Cape Road
Central
PORT
ELIZABETH
Ref.:
Ms J Antoniou
Tel./Cell:
082 531 6863
Date
Heard
:
20 June 2017
Date
Reserved
: 20 June 2017
Date
Delivered
:
22
June 2017