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[2024] ZAECQBHC 6
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Changing Tides 17 (Proprietary) Limited N.O v Tyler and Another (2757/2020) [2024] ZAECQBHC 6 (30 January 2024)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
CASE
NO: 2757/2020
In
the matter between:
CHANGING
TIDES 17 (PROPRIETARY)
LIMITED
N. O
Plaintiff
And
BASIL
MAYNARD TYLER
1
ST
Defendant
YOLANDE
TINA TYLER
2
nd
Defendant
JUDGMENT
Zono
AJ
[1]
On 11
th
November 2020 the plaintiff instituted action
proceedings in this court enforcing the credit agreement that was
concluded between
the plaintiff and the defendants on 07
th
September 2005 at Port Elizabeth. In terms of the contract the
plaintiff would lend first and second defendant the Capital amount,
which would in turn be paid in instalments as stipulated in the
schedule to the loan agreement.
[2]
In the event of default of payment by the
defendants their indebtedness to the plaintiff would
become due and payable. The plaintiff’s case is that the
defendant breached the contract and fell in arrears in the amount
of
R270 257.10.
[3]
In its prayer the plaintiff prays for judgment against the first and
second defendant as follows:
a)
Payment of
R270 257.10
b)
Interest on the sum of
R270 257.10
at the rate of
5.60%
per annum compounded monthly in arrear from the 09
th
day September 2020 to date of payment.
c)
An order:
i.
Declaring Erf 2[…] KABEGA,
In the Nelson Mandela
Metropolitan Municipality, Division of Port Elizabeth,
Province of the
Eastern Cape, in extent 782 (Seven Hundred and Eighty-Two) Square
meters,
Held by Deed of
Transfer T44[…], subject to the conditions therein contained,
to be specially executable;
ii.
Authorizing the Registrar of this
court to issue a warrant of Execution against the immovable property
as described in prayer (c)(i).
(d)
Costs of suit on an attorney and own client scale.
(e )
Further and/ or alternative relief
[4]
Sequel to the institution of these proceedings, a settlement
agreement was entered between the
parties on 30
th
January
2021. On the same date the defendant signed consent to judgment in
terms of Rule 31(1) of the same amount of
R270 257.10.
It
is contended that the defendants failed to honour the terms of the
settlement agreement. That failure triggered the institution
of the
present application for default judgment. The relief sought in the
application for default judgment is exactly the same
relief sought in
the combined summons.
[5]
The matter was brought and set down in the opposed motion court as an
application for default
judgment. Normally applications for default
judgment serve before unopposed motion court.
[6]
The matter was brought in terms of
Rule 41 (4) and Rule 46A of the
Uniform Rules.
The plaintiff seeks to execute against the
residential immovable property of the defendants. That is sought in
addition to the monetary
judgment for the amount of
R270 257.10
and interest.
[7]
Rule 46A
provides that:
“
(2)
(a ) A court considered an application under this Rule must-
(i) establish whether
the immovable property which the execution creditor intends to
execute against is the primary residence of
the judgment debtor; and
(ii) Consider
alternative means by the judgment debtor of satisfying the judgment
debt, other than execution against the judgment
debtor’s
primary residence.
(b)
A court shall not authorize execution against immovable property
which is the primary residence of a judgment debtor unless
the court,
having considered all relevant factors, considers that execution
against such property is warranted”
[1]
[8]
An equivalent provision appears in
Rule 46 of the Uniform Rules
which provides as follows:
“
(a)
Subject to the provisions of
Rule
46A
, no writ of execution
against the immovable property of any judgment debtor shall be issued
unless-
(i)
A return has been made of any process issued against the movable
property of the judgment
debtor from which it appears that the said
person has insufficient movable property to satisfy the writ.”
[9]
The use of the word “
judgment debt”
in both
provisions presupposes that the provision of these Rules can only be
invoked once there is a monetary judgment duly obtained.
It was never
an intention of the Rule-Maker that an action for monetary judgment
be instituted simultaneously with the process
seeking to execute
against the immovable property of the judgment debtor. It was never
envisaged that a monetary judgment can be
obtained simultaneously
with the order of execution against an immovable property.
[10]
There is yet another reason why an order declaring an immovable
property executable cannot be granted in
the same action or
simultaneously with the monetary judgment. The Rules provide that
“
there
must be a return made of any process issued against the movable
property of the judgment debt from which it appears that the
said
person has insufficient movable property to satisfy the
writ
.”
[2]
Alternatively,
the court must “
consider
if there are alternative means by the judgment debtor of satisfying
the judgment other than execution against the judgment
debtor’s
primary residence.”
[3]
[11]
From this setting it was clear from the beginning that there is no
case made out for the relief sought in
prayer (c) of the particulars
of claim, for an order to declare defendants’ immovable
property to be executable. The quest
for that relief persisted even
during the application for default judgment where the plaintiff
sought the same relief of executability
of defendants’
immovable property. To sum it up, the plaintiff had no cause of
action at all in respect of the relief or
prayer aforesaid. The
relief or prayer was prematurely sought.
[12]
I must commend Mr White, Counsel for the Plaintiff who, in his
supplementary heads of argument filed on the
eve of the hearing, and
during his oral submissions in court expressely did not pursue the
relief of executability against defendants’
immovable property.
However, he insisted on the monetary judgment. It is prudent to
mention that the plaintiff instituted a single
claim comprising of
relief relating to monetary judgment and executability of defendants’
immovable property.
[13]
This brings me to the provision of
Rule 46A (3) (d)
which
provides that:
“
3
.
Every application to declare residential immovable property
executable shall be-
(d)
served by the sheriff on the judgment debtor personally: provided
that the court may order service in any other manner
.”
Personal service in
matters of this mature is indispensable.
[14]
The service of the summons was not entirely compliant with the
aforesaid Rule as the first defendant was
not personally served. The
summons was served upon one Yolanda whose full and further
particulars are unknown, in respect of the
first defendant.
[15]
The application in terms of
Rule 41(4) and 46A of the Uniform
Rules,
which is an application to declare defendants’
immovable property executable, was also not served personally upon
the defendants.
It was served upon G. Tyler, who is described in the
return of service as the defendants’ daughter.
[16]
In the light of these shortcomings I find that an application to
declare defendants’ immovable property
is ill-conceived and
cannot be granted. It therefore cannot succeed. That leaves me with
the monetary judgment which is part of
a single claim issued under
this case number.
[17]
Whilst Mr White unequivocally conceded that the service of the papers
offended
Rule 46A (3) of the Uniform Rules,
and is accordingly
defective, but he strongly argued that the defect was cured by the
presence of the first defendant in court.
He steadfastly argued
further that the fact that the first defendant’s presence in
court was in the context of the default
judgment application was of
no moment.
[18]
In the context of summary judgment application, where the defendant
had entered an appearance to defend,
Horn
AJ
[4]
had
this to say: “
The
Issue of summons is the initiation process of an action and has
certain specific consequences, one of which is that
it
must be served. The methods of service are prescribed in the
Rules. Mere knowledge of the issue of a summons is not service
and a
plaintiff is not relieved of his obligation to follow the prescribed
Rules.”
I emphatically find that the imperative dictates of
Rule
46A (3)
were not followed by the plaintiff.
[19]
It is on the basis of the above authority that I am of a strong view
that an application for default judgment
for monetary judgment, which
is part of the entire case including prayer for execution against
immovable property cannot succeed.
Both relief sought in the
application must fail.
[20]
Even if I am wrong on my reliance on this authority, there is yet
another reason why default judgment cannot
succeed.
[21]
Provisions of
Rule 46A (3) of the Uniform Rules
are couched in
imperative terms. The correct text is as follows:
“
3.
Every application to declare residential immovable
property executable
shall
be-
(a)……
(b)….
(c )…..
(d)
Served by the sheriff on the judgment debtor
personally:
provided that the court may order service in any other manner.”
[22]
The word “
shall”
when used in a statute is rather to be considered as peremptory,
unless there are other circumstances which negative this
construction.
[5]
In the wording
of the subrule there is nothing that may be construed to negative a
construction that provisions of
Rule
46A(3) (d)
are imperative and they require strict and exact compliance.
[23]
The reason for this provision to be imperative is not far to fetch.
Rule 46A and Rule 46 of the Uniform Rule
deal with execution
by the execution creditor against the residential immovable property
of the judgment debtor. It creates an
inroad to the provisions of
Section 26 of the Constitution,
which guarantees a right to
“
everyone to adequate housing”.
The Rule-Maker
envisaged that a judgment debtor may be left homeless once an
execution against his or her immovable property is
successfully
effected.
[24]
The Rule also adversely affects children’s rights enshrined in
Section 28 of the Constitution
which expressely provides as
follows:
“
28(1)
Every child has the right-
(a)…
(b) to family care or
parental care or appropriate alternative care when removed from the
family environment.
(c
) to basic nutrition, shelter, basic health care services and
social services.”
Children
have a right not to be placed at the degrading environment or placed
at an environment that risks their well-being, education,
physical or
mental health or spiritual, moral or social development.
[6]
[25]
The Rule-Maker was well alive of the possible breakdown of family
unit, loss of dignified shelter and the
emotional and mental trauma
that may be suffered when the family whose immovable property that is
the primary residence executed
against. The deterioration of social
and educational development brought about by the change of the
execution is a further consideration.
Shelter is a guaranteed
fundamental right for everyone.
[26]
Rule
46A and 46
of the Uniform Rules aim at limiting those fundamental rights
[7]
.
The Rule-Maker intended to put a higher threshold for the execution
creditors so that they do not lightly take away people’s
primary residence. The bar is raised deliberately so that judgment
debtor’s right to housing, dignity and privacy is not
lightly
tempered with. It is for that reason
Rule
46(1), 46A (2) of Uniform Rules and Section 36(1)(e) of the
Constitution
require
that for limitation of the rights outlined in
Section
26 and 28 of the Constitution
there must first be alternatives and other means that are exhausted
before resorting to the execution on the immovable property.
The
Constitution expressely requires that there must be less restrictive
means to achieve the purpose of limitation of rights.
[27]
All of this accounts for the reason to couch the provisions of
Rule
46A (3)
in imperative terms. In what follows I briefly deal with
the legal effects and consequences of the failure to adhere to
imperative
provisions of the law.
[28]
There is sound judicial authority that a statutory requirement
construed as peremptory usually needs exact
compliance for it to have
the stipulated legal consequence, and any purported compliance
falling short of that is a nullity.
[8]
The Service falling short of personal service of the application upon
the defendants is a nullity, of no force and effect and consequently
ineffectual.
[9]
[29]
Consequently the application for default judgment cannot succeed.
[30]
In the result the following order shall issue:
30.1 The
application for default judgment dated 22
nd
June 2021 is
hereby dismissed.
30.2 That
there shall be no order as to costs.
ZONO
AJ
ACTING
JUDGE OF THE HIGH COURT
Date
heard ;25
th
January 2024
Date
Delivered:;30
th
January 2024
APPEARANCES:
Counsel
for the Plaintiff
Adv
A. White
Instructed
by
VELILE
TINTO & ASSOCIATES
Tinto
House
942
Disselboom Avenue
Wapadrand
E-mail:melandry@tintolaw.co.za
Tel:012
807 3366
Ref:S6599//M
STRYDOM
C/O
MARK ROSSOUW ATTORNEYS
193
Circular Drive
Fairview
Port
Elizabeth
E-mail:
mark@brlaw.co.za
/
rene@brlaw.co.za
Tel:041 367
1314
Cell:072
786 4690
Ref:
T0070
Defendants’
Counsel
No
Appearance
7
Hugenot Street
Van
Der Stel
Port
Elizabeth
E-mail:
basilmtyler@gmail.com /
joantyler9@gmail.com
Tel:
082 8105 796
[1]
See
Jafta
v Schoeman and Other, Van Rooyen v Stoltz and others
[2004] ZACC 25
;
2005
(2) SA 140
(CC) Para 58-60
;
Gundwana
v Sleko Developmnet and others
2011
(3) SA 608
(CC) Para 57.
[2]
Rule
46(1)(a) (1) of the Uniform Rules.
[3]
See:
Rule 46A (2) (ii) of the Uniform Rules.
[4]
See:
First
National Bank of South Africa Ltd v Schweizer Drankwinkel Pty
Ltd
1998
(4)SA 565 at 568B.
[5]
See:
Bezuidenhout
v AA Mutual Insurance Association Ltd
1978
(1) SA 703
(AD) at 709.
[6]
See:
Section 28(1) (d), (f), (iii) of the Constitution
[7]
Section
36(1) of the Constitution.
[8]
Shalala
v Klerksdorp Town Council and another
1969
(1) SA 582(T)
at 587 A-C
[9]
LAWSA,
2
ND
Edition, Part
25, Page 399
, Para 366; also G.M Cockram:
Interpretation of statutes, 3
rd
Edition. Page 163