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2023
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[2023] ZAGPPHC 619
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Changing Tides 17 Pty Ltd NO v Ntsanwisi (14462/2019) [2023] ZAGPPHC 619 (31 July 2023)
IN THE HIGH COURT OF SOUTH AFRICA
[GAUTENG DIVISION, PRETORIA]
CASE NO: 14462/2019
In the matter between:-
CHANGING
TIDES 17 PTY LTD NO.
Applicant/Plaintiff
and
TIYANE
BOLDWING NTSANWISI
Respondent/Defendant
JUDGMENT
SKOSANA AJ
[1]
This application is brought in terms of Rule 46A(9) (c) and/or (d)
for the reconsideration
of the reserved price as set by the order of
Mdalana J on 20 June 2019. The served price was set at R1 241 367-23.
The
order also provided that, in the event of the reserved price not
being attained, the plaintiff may approach this court for the
reconsideration thereof in terms of Rule 46A(9)(c).
[2]
In its supplementary affidavit and as informed by counsel for the
plaintiff, at the
auction which took place in November 2020, the sale
could not be concluded as the highest bid received was R860 000-00.
This
appears from the Sheriff’s report. It is further stated
that the arrears with instalment totalled R756 597-40 as on 11
July 2023 with the last successful payment having been received from
the defendant on 22 September 2018 for an amount of R10 000-00.
The defendant also owed an amount of R23 021-00 as rates and
taxes as on 17 July 2023.
[3]
It is on that basis that the plaintiff prays for either the
confirmation of the sale
in execution of 05 November 2021 to be
confirmed or cancelled or that, in the event of the cancellation of
such sale, either no
reserve price be set alternatively the reserved
price be set at R1 147 500-00.
[4]
The defendant, who is a Chemical Engineer by profession appeared in
person and stated
that the property is a huge house with a market
value of about R1 700-00 and that it was placed on auction only
on one occasion.
He further stated that the R761 000-00 granted
in the main court order was actually the balance of the bond. He
needs an opportunity
to groom his business in order to be able to
settle the debt and there is a bond protection plan that can assist
in the settlement
of the debt.
[5]
As correctly pointed out by counsel for the plaintiff, the judgment
has already been
given on the merits. The alleged protection plan
referred to by the defendant is actually a life cover, not an income
protector.
It cannot assist the defendant at this stage.
[6]
On the other hand, it is clear that the property is a primary
residence for the defendant
and his family. The sale in execution was
held in 2020 when the economic conditions of this country and the
world over were at
their lowest with a bleak focus of the future as
well.
[7]
Having considered the factors set out in Rule 46A(9)(a), I am of the
view that the
reserve price proposed by the plaintiff in terms of his
draft order is fair and just in these circumstances. It follows that
the
sale in execution of 05 November 2020 must be cancelled and the
reserve price be set at R1 147 500-00.
[8]
As to costs, the sale could not be concluded in November 2020 because
of the reserve
price set by the court. The defendant was entitled to
place facts before this court which must be considered in relation to
the
reconsideration of such a reserve price. Consequently, I am not
inclined to grant costs in this application.
[9]
In the result, I make an order that the draft order contained on case
lines 022-4
to 022-6 is made an order of court subject to the
deletion of paragraphs 1.1 (confirmed or) and 5 thereof.
_______________
DT SKOSANA
Acting Judge of the High Court
Date of Hearing:
27 JULY 2023
Judgment delivered:
31 JULY 2023
APPEARANCES:
Counsel for the Applicant:
Adv P
Oosthuizen
Instructed by
Velile Tinto &
Associates Inc
For the Respondent:
Mr
Tiyani Ntsanwisi (In person)