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[2018] ZAECPEHC 36
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Mlalandle v Nedbank Limited and Others (2215/2017) [2018] ZAECPEHC 36 (31 July 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 2215/ 2017
Date heard: 26 June 2018
Date
delivered: 31 July 2018
In
the matter between
NOMAVA
MLALANDLE Applicant
And
NEDBANK
LIMITED First
Respondent
Mc
WILLIAMS & ELLIOT
INC. Second
Respondent
VIVIAN
BRICKHILL Third
Respondent
CHRIS
DIEDERICKS Fourth
Respondent
MICHAEL
BOSCH Fifth
Respondent
LP
SHARP SHERIFF PORT
ELIZABETH Sixth
Respondent
JUDGMENT
GOOSEN,
J.
[1]
The
applicant seeks to set aside a sale, by auction, of an immovable
property sold in the execution of a judgment granted by this
Court 7
February 2017. The applicant founds her case upon the allegation that
the sale in execution proceeded in breach of an agreement
concluded
between the applicant and the first respondent. It is alleged that it
was agreed that the applicant would make payment
of 50% of the
arrears due by her in terms of the credit agreement by 12h00 noon on
the day of the auction and the balance over
a period of 6 months.
[2]
The
application is opposed. The first respondent alleges that no
agreement, as alleged by the applicant, was concluded. The first
respondent alleges that it was prepared to accept payment of an
amount of R35 000 before 12h00 on the day of the auction, in order
to
accommodate applicant, and that the applicant failed to make such
payment. The first respondent contends, therefore, that it
was
entitled to proceed with the sale in execution.
[3]
It
is common cause that the applicant and the first respondent entered
into a loan agreement 21 February 2012 in terms of which
the first
respondent advanced to the applicant the sum of R475 000.00 for the
purchase of an immovable property. The loan was secured
by a mortgage
bond registered against the property in an amount of R545 700.00. The
first respondent instituted action proceedings
against the applicant
in consequence of breaches under case number 4008/2016. On 7
February 2017 Chetty J granted an order
by default against the
applicant for payment of an amount of R466 994.84, together with
interest thereon. A further order was granted
declaring Erf […]
Algoa Park, in the division of Port Elizabeth (hereinafter “the
subject property”) executable.
It is unnecessary to set out the
nature of the applicant’s breaches of the credit agreement or
to recount the background
giving rise to the order granted by Chetty
J, since that Order and the antecedent conduct of the applicant
giving rise thereto
is not in issue in these proceedings.
[4]
On
16 February 2017 a warrant of attachment of the subject property was
issued. The warrant was served on the applicant by the Sheriff
on 4
March 2017. On 8 March 2017 the applicant contacted the third
respondent, an employee of the first respondent’s attorney
of
record, who is cited as the second respondent. I shall, later in this
judgment, deal with the joinder of these parties to the
application.
The applicant informed the third respondent that she is unemployed
and unable to make any arrangement to settle the
account. She
informed the third respondent that her boyfriend would assist her.
[5]
On
3 April 2017 the applicant again contacted the third respondent and
enquired as to the minimum amount she would be required to
pay to
avoid a sale in execution. After obtaining instructions from the
first respondent, the third respondent advised the applicant
telephonically, on 10 April 2017, that payment of 50% of the arrears,
which then stood at R67 521.74, would need to be paid and
that the
balance would need to be paid in six equal monthly instalments in
addition to the normal monthly instalments due in terms
of the
agreement. This proposal was confirmed in an email addressed to the
applicant.
[6]
A
notice of sale in execution was served on the applicant on 13 April
2017. The scheduled date of the sale was 26 May 2017 at 12h00.
On 2
May 2017 the third respondent contacted the applicant telephonically
advising her that she must make an arrangement in respect
of payment
of the outstanding arrears prior to the auction date, failing which
the auction would proceed. This is admitted by the
applicant.
[7]
The
first respondent states that on 4 May 2017 the applicant advised it
via its attorneys of record that she could possibly raise
an amount
of R33 000.00 by 15 May 2017. No arrangement was however made
regarding any further payment.
[8]
On
24 May 2017, at 15h51, the third respondent contacted applicant
telephonically to remind her that the sale in execution was scheduled
to proceed on 26 may at 12h00 and that no payment arrangements had
been made. The applicant advised that her boyfriend would make
the
required payment.
[9]
The
events of 25 and 26 May 2017 lie at the heart of the dispute in this
application. The applicant states that during the course
of May she
consulted the third respondent and offered to make payment of R33
000.00 and the balance of the arrears over 6 months,
together with
payment of the regular instalment. She states that a friend from
Pretoria would assist her to make these payments.
According to the
applicant she was told by the third respondent that the first
respondent would not accept the offer since there
was a third party
involved. In answer to these allegations the first respondent
confirms that an offer was made by the applicant
to pay R33 000.00
but stated that no agreement was concluded in relation to such or any
further payments.
[10]
The
first respondent alleges that on 25 May the applicant was again
advised telephonically that the sale in execution would proceed
unless payment of an agreed amount was received and an arrangement
made in respect of the balance and further payments. The applicant
was informed that the arrears stood at R83 856.50. The applicant does
not admit this conversation. She states that she was only
appraised
of the arrears by email which she received on 26 May 2017.
[11]
The
first respondent also states that on 25 May 2017 at 16h30 a person
called Gideon, who indicated that he was the applicant’s
boyfriend, contacted the third respondent. He informed her that he
had secured loan but that the funds were not yet available.
He stated
that he would be able to pay R35 000.00. The third respondent
informed Gideon that no arrangement had been made and,
since he was a
third party, the matter could not be discussed with him. It appears
that later that day the applicant called the
third respondent and
enquired whether she could make payment of R30 000.00 and offered
that her boyfriend sign as surety. The applicant
does not dispute
this conversation.
[12]
In
regard to the events of 26 May 2017, the applicant states that she
had made arrangements with a friend to assist her in repaying
the
arrears. She had managed to raise R33 000 to cover the arrears. She
went to the branch office of the first respondent to pay
the amount
into the account. She also arranged for her boyfriend, Gideon Phiri,
to make payment of the “balance” at
a Pretoria branch
office of the first respondent. When at the bank, she noted that she
had received an email which had been sent
to her the previous day,
advising that the arrears were R83 856.50. She was shocked by this
and spoke to a lady at the information
desk. She then telephoned the
third respondent to inform her that she was at the bank having
arranged to make payment of R33 000.00.
The third respondent advised
her that the first respondent required immediate payment of an amount
of R50 000 and upon proof thereof
would stop the sale in execution.
[13]
The
applicant alleges that, after further telephonic discussions with the
first respondent’s legal department, it was agreed
that the
applicant could pay R35 000.00 immediately and a further R15 000.00
on the following Monday. She made payment of R13 000.00
and a friend
in Pretoria also made payment. She could not obtain proof of this
payment, however, and the sale went ahead. She was
informed that the
house been sold and therefore immediately stopped any further
payments which she had arranged.
[14]
The
applicant’s version of what transpired on that day is denied by
the first respondent. The first respondent alleges that
following the
exchanges which occurred on 25 May, it decided, at 08h40 on 26 May
2017, that the sale in execution could be cancelled
provided the
applicant pay an amount of R50 000.00 prior to the sale which was
scheduled for 12h00. At 08h44 the third respondent
contacted the
applicant and advised her of the decision. At 09h08 the third
respondent received a call from Gideon enquiring whether
the first
respondent would consider payment of R25 000.00 on 26 May and payment
of a further R25 000.00 within 7 days. Gideon was
informed that the
first respondent’s instructions were clear and that it required
payment of R50 000 prior to the sale. These
allegations are admitted
by the applicant. It should be noted here that this admission flies
puts paid to the allegation by applicant
that she was acting upon a
prior agreement to pay R33 000.00.
[15]
The
first respondent states that at 10h23 a further call was received
from Gideon enquiring as to the time when payment should be
made.
This is also admitted by the applicant.
[16]
According
to the first respondent the applicant contacted the first respondent
at 11h19 to advise her that she had R35 000.00 available
for
immediate payment. The applicant enquired whether the sale could be
cancelled upon her undertaking to pay any further R15 000.00
on the
following Monday. The third respondent advised the applicant that the
first respondent required payment of R50 000.00. The
second
respondent however obtained further instructions from the first
respondent, who agreed that the sale could be stopped, provided
that
payment of an amount of R35 000.00 was made immediately. This was
conveyed to the applicant by the third respondent at 11h28.
[17]
At
11h56 third respondent again contacted the applicant to enquire
whether the payment had been made. The third respondent spoke
to the
bank teller who was dealing with the applicant at the time. She was
informed that the applicant was making payment of an
amount of R13
000.00. The applicant was informed that proof of payment of an amount
of R35 000.00 was required. The sheriff was
instructed to delay
commencement of the sale to allow for proof of payment to be
furnished. When this was not provided the sale
proceeded and the
property was sold to the fourth and fifth respondents. It is common
cause that prior to 12h00 payment of only
R13 000.00 was affected.
Two further payments of R11 000.00 and R2 000.00 were made after the
sale had occurred.
[18]
As
indicated at the outset the applicant founds her claim for the relief
sought on the basis of an agreement that the first respondent
would
stay the sale in execution upon payment of half of the arrears then
owed by the applicant. She claims that the first respondent
was
accordingly not entitled to proceed with the auction sale and that
the resulting sale should therefore be set aside.
[19]
The
applicant seeks final relief in application proceedings. Accordingly
the facts upon which the court must determine the application
are
those alleged by the first respondent together with those alleged by
the applicant which the first respondent cannot place
in dispute
(
Plascon-Evans
Paints Pty Ltd v Van Riebeeck Paints Pty Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)).
[20]
Consideration
of the factual averments of the parties, set out in detail above,
indicates that there are no significant or material
disputes of fact.
Such disputes as there are relate principally to the events of 26 May
2017. Such disputes are to be resolved
by application of the
principles set out above.
[21]
What
is immediately apparent from the facts set out above is that the
agreement upon which the applicant relies on the papers, i.e.
the
payment of 50% of the arrears prior to the sale and the balance over
a period of 6 months is, on the applicant’s own
version, not
established. There is accordingly no basis to find that it was agreed
by the parties that upon payment of an amount
of R33 000.00 prior to
the sale on 26 May 2017, the sale would be stopped. In any event upon
the applicant’s own version,
indeed on the common cause facts,
the applicant did not affect payment of this amount prior to the time
of the sale.
[22]
At
best for the applicant, the first respondent had undertaken to stay
the sale upon payment of an amount of R35 000.00 prior to
the sale
and upon proof of payment being furnished. This, it must be accepted
on the facts, arose consequent upon a last-minute
compromise by the
first respondent to accommodate the applicant. Yet, even this
arrangement, was not complied with by the applicant.
[23]
In
the circumstances the applicant has failed to establish a factual
basis for setting aside the sale in execution. In her application
papers, the applicant tenders payment of the arrears and legal costs,
and on this basis too, seeks the setting aside of the sale.
This
tender, however, cannot avail the applicant since it cannot revive or
reinstate the credit agreement.
[24]
Section
129 (3) of the National Credit Act provides that:
Subject
to subsection (4), a consumer may at any time before the credit
provider has cancelled the agreement, remedy a default in
such credit
agreement by paying to the credit provider all amounts that are
overdue, together with the credit provider’s
prescribed default
administration charges and reasonable costs of enforcing the
agreement, up to the time the default was remedied.
[25]
Subsection
(4) in turn provides that:
A
credit provider may not reinstate or revive a credit agreement after:
(a)
the sale of any property, pursuant to:
(i)
an attachment order; or
(ii)
surrender of property in terms of section 127;
(b)
the execution of any other court order enforcing that agreement; or
(c)
the termination thereof in accordance with section 123.
[26]
In
Nkata
v Firstrand Bank Ltd and Others
2016 (4) SA 257
(CC) at par 131, it was held that the barrier to
revival of the credit agreement applies only when the proceeds from
the sale in
execution have been realised. That is the case in the
present matter. Accordingly, “revival” of the credit
agreement
would be of no utility to either party at this stage. In
these circumstances the tender does not assist the applicant.
[27]
I
indicated earlier in the judgment that I would address the joinder of
parties. It is to this that I now turn. The applicant joined
the
first respondent’s legal representative, McWilliams and Elliott
Inc, as the second respondent. She also joined Mrs Vivian
Brickhill,
who is the professional assistant to Mr Murray, the first
respondent’s attorney of record. Mrs Brickhill was joined
as
the third respondent. The notice of motion however claims no
substantive relief against either the second or the third respondent.
[28]
The
application papers offer no justification for the joinder of these
parties as parties in their own right. It is apparent that
Mr Murray
of the second respondent operated throughout the conduct of case
number 4008/2016 as the first respondent’s duly
instructed
attorney. It is also apparent from the applicant’s papers and
those filed by the second and third respondent,
that the third
respondent, as the professional assistant to Mr Murray, was the point
of communication between the first respondent
and the applicant
during the execution process.
[29]
When
asked why these respondents were joined, Mr Crompton, on behalf of
the applicant, suggested that the third respondent “had
entered
into the agreement with the applicant”. This submission was
quickly abandoned when it was pointed out that any such
“agreement”
could only be between the applicant and the first respondent duly
represented and that this provided no
justification for the joinder
of the representative.
[30]
The
joinder of a party’s legal representative, or an employee of a
legal representative for that matter, in circumstances
such as this
is a most unusual step. It is one to be deprecated because of its
oppressive nature. This step, it is to be emphasised,
was taken by
the applicant who was herself represented by a legal practitioner of
many years’ standing. The joinder of these
parties clearly
occasioned additional costs. Such unwarranted misjoinder of parties,
with the attendant escalation of costs occasioned
thereby, may very
well persuade a court to make a cost order against a legal
representative in his or her personal capacity precisely
because of
its oppressive and potentially chilling effect on the ordinary
conduct of litigation by parties. Although I considered
such an order
I have come to the conclusion that in this instance a costs order
which follows the result will meet the exigencies
of the case.
[31]
In
the circumstance I make the following order:
The
application is dismissed with costs.
____________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicant
Adv.
Crompton
Instructed
by Stuart Laubscher Inc.
For
the First, Second & Third Respondents
Adv.
I. Bands
Instructed
by McWilliams & Elliot Inc.
For
the Fourth, Fifth & Sixth Respondents
No
appearance