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[2023] ZAKZPHC 47
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Nedbank Limited v Rossiter Family Trust and Another (6076/2021P;3293/2021P) [2023] ZAKZPHC 47 (8 May 2023)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
6076/2021P
3293/2021P
In the matter between:
NEDBANK
LIMITED
APPLICANT
versus
THE ROSSITER FAMILY
TRUST
FIRST RESPONDENT
GAIL WINGROVE
ROSSITER
SECOND RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
This matter has a long history as it started some years back and
Applicant now seeks
the eviction of Second Respondent and all other
persons occupying the premises at 2[...] R[...] Road Winston Park
Gillits and 2[...]
W[...] Avenue Umhlanga Rocks. On 27 October
2022 an order was granted that the matters under case number
6076/2021P and 3294/2021P
be consolidated under a new case number.
This appears not to have been done and the two matter are thus being
dealt with
together. It however appears that the affidavits
were filed under case number 6076/21P. Both applications are
opposed
by Respondents. Originally there was a third Respondent
one Reeve Luke Rossiter who had died in the interim and the matter
is
proceeding only against First and Second Respondent.
[2]
On 12 March 2018, an order was granted against First Respondent in
this court under
case number 8244/2010P that
inter alia
the
properties described as Erf 3[...] Winston Park Registration Division
FT KwaZulu-Natal in extent 2.068 hectares, Erf 1[...]
Umhlanga Rocks
(extension number 1[…]) registration division FU, in the
Durban Metropolitan Unicity Municipality, province
of KwaZulu-Natal
and portion 35 (2) of Erf 2[...] Z[...], registration division FU,
province of KwaZulu-Natal be declared to be
immediately executable.
First Respondent sought leave to appeal against the said order which
was refused on 26 April 2018.
On 28 September 2018 leave to
appeal to the Full Court of the KwaZulu-Natal Division was granted by
the Supreme Court of Appeal.
[3]
The appeal was heard on 14 February 2020 and the appeal was dismissed
and Appellant
Gail Wingrove Rossiter N.O., (Second Respondent) herein
was ordered to bear the costs of the appeal personally. Second
Respondent
on 8 July 2020 sought special leave to appeal against the
appeal judgment AR 94/19 which was dismissed with costs on the
grounds
that there were no prospects of success for special leave to
appeal to the Supreme Court of Appeal. Thereafter Second
Respondent
sought leave to appeal from the Constitutional Court.
This was also dismissed with costs on 18 August 2021.
[4]
Thereafter Second and Third Respondent were requested to vacate the
said properties
by Applicant’s attorney. As they did not
do so an application was brought during August 2021 to evict them
from the
said properties based on the orders granted on 12 March
2018.
[5]
On 13 September 2021 in terms of the PIE Act 19 of 1998 orders were
granted by this
court in both matters that a notice be served on
Respondents and the municipality in terms of section 4(2) of Act 19
of 1998 at
least fourteen (14) days prior to the hearing of the
matter and the applications were then adjourned to 11 October 2021
for the
second order prayed. The orders in both matters were
served on Respondents. On 11 October 2021 both applications
were
adjourned
sine die
. In both applications
Respondents had to deliver an application seeking condonation for the
late delivery of their answering
affidavits within seven (7) days of
the order and were ordered to pay the wasted costs of the
adjournment. An answering affidavit
was then filed by First and
Second Respondent on 7 October 2021.
[6]
Prior to the order of 12 March 2018 and other steps taken as set out
above default
judgment was granted against Respondents and Third
Respondent on 30 May 2012. On 14 August 2012 an application was
brought
for the rescission of the default judgment which was opposed
and was dismissed on 27 February 2013. On 17 November 2015 the
judgment was set aside by the Supreme Court of Appeal did not deal
with the merits of the defences raised but on the basis that
Respondents had not been given notice of the time when the default
judgment was to be dealt with by the Registrar. An amendment
to
the pleadings was thereafter argued and was granted as the trustees
of the Trust had changed. On 12 March 2018 after a
further
hearing judgment was granted in favour of Applicant against the Trust
(First Respondent) that the properties referred to
in paragraph 3
above be declared executable.
[7]
Pending the hearing by the Supreme Court of Appeal the judgment which
had been granted
against First Respondent was then executed on and
the properties were sold and purchased by Applicant during 2014.
Applicant
thereafter took transfer of the said properties and is the
registered owner thereof at this stage. As set out above
judgment
was then again granted against the Trust in 2018 and various
steps taken by Respondents thereafter as set out above. All
remedies were exhausted by Respondents and the 2018 judgment
therefore still remained. Despite all of this Second Respondent
is still in occupation of the said premises.
[8]
It is also common cause that the said properties are presently
registered in the name
of Applicant and this has also not been
disputed. Section 4(2) of the PIE Act has been complied with and that
due notice was given
to Respondents of the hearing of the eviction
application. It must now be considered whether the second order
prayed, namely
the eviction of Second Respondent, is to be granted or
not.
[9]
Applicant’s ownership of the properties arises from a valid
judgment and a lawful
execution process. The property was
bonded and accordingly an order could be granted that the property be
declared executable
without first pursuing an order against
movables. The order that was granted on 12 March 2018 declaring
the properties executable
was appealed by Respondents on various
grounds in various courts until it was finally refused by the
Constitutional Court.
Loans were granted and the properties
were security for the loans which entitled Applicant to execute
against these properties.
[10]
Respondents do not contend that they occupy the said properties with
the consent of Applicant
and accordingly they are unlawful occupiers
in terms of the PIE act.
[11]
Applicant has fulfilled all the procedural requirements as owner and
Respondents disclose no
circumstances relevant to the eviction and
therefore it is contended that Applicant is entitled to an order for
eviction.
Nldovu v Ngcobo; Bekker v Jika
2003 (1) SA 113
(SCA).
[12]
It was submitted on behalf of Applicant that Respondents have not by
way of a counter application
sought to have the sale in execution of
the immovable properties set aside and for them to be retransferred
to First Respondent.
It was further submitted that First
Respondent has exhausted all its remedies and that the judgment
remains intact.
[13]
It was submitted on behalf of Respondents that leave to appeal was
granted on 24 May 2013 and
that the property was transferred to
Applicant on 8 June 2015. It was therefore submitted that the
judgment upon which Applicant
issued the writ and transferred the
properties was set aside by the Supreme Court of Appeal on 1 December
2015. It is further
submitted that Applicant’s contention
that the properties were declared executable on 12 March 2018
confirmed that it was
unlawfully transferred on 8 June 2015. At
that stage Rule 46 could not be complied with as an auction could not
be advertised
as it was already registered in the name of Applicant.
It is therefore contended that the Trust is still the owner of the
property even though it is registered in the name of Applicant.
It was submitted that the execution was invalid and the sheriff
had
no authority to pass transfer and that it should be set aside even
against a
bona fide
possessor.
[14]
In the answering affidavit filed on behalf of Respondents it was
submitted that while there was
an appeal pending before the Supreme
Court of Appeal, Applicant transferred the properties into its name.
It is contended
that the properties were sold in execution unlawfully
and that the Supreme Court of Appeal on 1 December 2015 set aside the
default
judgment granted. A copy of the appeal judgment is
attached to the answering affidavit wherein the Supreme Court of
Appeal
in paragraph 11 held:
“
In
any event the properties were transferred in the face of a pending
appeal and the respondent transferred them into its name.
That
process can be easily undone.”
It held in paragraph 15
of the judgment that it was procedurally defective. It
therefore concluded that the default judgment
had been erroneously
granted and that the applicants were entitled to have it rescinded.
The default judgment was accordingly
set aside. In paragraph 11
of the judgment of the Supreme Court of Appeal it states:
“
I
find it disturbing that the respondent still saw fit to thereafter
proceed to transfer in execution of judgment the Winston Park
property on 19 February 2014 and to have the Umhlanga property
declared specially executable on 13 August 2014.”
[15]
It is further contended in the answering affidavit that there was no
reserve price when the properties
were sold in execution. It is
contended that before Second Respondent can be evicted or any other
occupiers, Applicant must
bring an application to declare the
property specially executable and a reserve price be set.
[16]
It was submitted by Mr Combrinck on behalf of Applicant that when the
Supreme Court of Appeal
granted its judgment, to which I have
referred it may have indicated that it was disturbing that Applicant
sold and transferred
the properties but that there is nothing in
their order setting aside the said transfer. It is therefore
submitted that the
transfer still stands and accordingly does not
affect the transfer of the properties into the name of Applicant.
[17]
It is further contended on behalf of Applicant that in 2018 the
properties were once again declared
executable and that that order
was appealed and proceeded all the way to the Constitutional Court
where it was dismissed.
Accordingly at no stage was there any
order granted or sought to have the transfer of the said properties
to Applicant set aside.
[18]
When the properties were declared executable even at the latest date
which was 2018 Rule 46A
had come into operation during November 2017
but the issue of a reserve price is not compulsory but is
discretionary. The
issue whether a reserve price is set or not
is accordingly not a defence.
[19]
After the order of the Supreme Court of Appeal on 17 November 2015
the parties were indeed in
the position they would have been before
default judgment was granted by the Registrar. Except there was
already the transfer
of the Windsor Park Avenue Property to
Applicant. The matter was opposed and the action defended and
judgment was granted
by this court on 12 March 2018 declaring the
properties executable. It appears that this was never raised at
that stage,
that the properties had already been transferred.
The appeal processes proceeded to the Constitutional Court where it
was
dismissed. The 2018 judgment therefore was still applicable
and there was never any order granted that the registration of
the
property into the name of Applicant should be declared
null
and
void
or set aside.
[20]
As set out in the judgment of the Supreme Court of Appeal the
transfer of the properties into
the name of Applicant could be
undone. However the Supreme court of Appeal did not grant such
an order nor did any other
court. There has also to date not
been any application to undo the registration of the said properties
in the name of Applicant.
Applicant therefore remains the
registered owner of the properties. It does not follow that
because the monetary judgment
was set aside the sale of the
properties would automatically be reserved. As stated by the
Supreme Court of Appeal it had
to be undone which was not done.
[21]
As set out above Applicant has complied with all the necessary
requirements in terms of the PIE
Act and it has also not been
suggested by Respondents that they do not have access to any other
accommodation or cannot afford
to pay rent for other accommodation.
The following order is
therefore granted:
1.
First and Second Respondent and all members of Second Respondent’s
family
and any other person who occupy the premises at 2[...] R[...]
Road, Winston Park, Gillits and 2[...] W[...] Avenue, Umhlanga Rocks
in or under First alternatively Second Respondent be and are hereby
directed to vacate the said properties within thirty (30) days
of
service of this order.
2.
Should the order in paragraph 1 above not be complied with the
Sheriff or his
deputy be and is hereby authorised to eject Second
Respondent and all other persons occupying the said properties.
3.
Costs of the applications to be paid by Respondents jointly and
severally the
one paying the other to be absolved.
C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
11
APRIL 2023
JUDGMENT
HANDED DOWN:
8
MAY 2023
COUSEL
FOR APPLICANT:
P
J COMBRINCK SC
Instructed
by:
Garlicke
& Bousefield
La
Lucia Ridge
Ref:
A Liebenberg/LL/N081
Tel:
031 570 5483
c/o:
Skye Forsyth Attorneys
Pietermaritzburg
Ref:
Sky Forsyth
Tel:
033 880 0074
COUNSEL
FOR RESPONDENT:
T
CHETTY
Instructed
by:
Theyagaraj
Chetty Attorneys
Durban
Tel:
031 208 0527
c/o:
Cajee Satsubi Chetty
Tel:
033 814 9150
Ref:
Mr Essa