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[2023] ZAECELLC 28
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Firstrand Bank Limited v Zikalala - Rule 46A Application (623/2021) [2023] ZAECELLC 28 (17 August 2023)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EAST LONDON CIRCUIT
LOCAL DIVISION)
CASE
NO. 623/2021
NOT REPORTABLE
In
the matter between:
FIRSTRAND
BANK LIMITED
Applicant
and
THABISILE
BRIGID MARIA ZIKALALA
Respondent
JUDGEMENT IN RESPECT
OF RULE 46A APPLICATION
HARTLE
J
[1]
The applicant, in whose favour a bond is registered over the
respondent’s immovable property, applied pursuant to the
provisions of Uniform Rule 46A for an order declaring the property
specially executable.
[2]
The application was opposed by the respondent who appeared
in person.
[3]
Default judgement was granted against the respondent for payment
to
the applicant of the amount of R2 107 618.27 together with
interest and costs as provided for in the mortgage loan agreement
when the matter came before me on 8 February 2021. On this date
too she appeared in person and pursuant to representations
made by
her at the hearing concerning her adverse, but not hopeless,
financial situation I added a
proviso
to the order that the
bank should not enrol any application in terms of Rule 46 A arising
from the judgement before 9 May 2022.
[4]
When the matter fortuitously came before me again she indicated
that
her intention was not to frustrate the applicant’s entitlement
to execute, but she requested a further extension of
at least six
months to meet her arrears based on her reasonable expectation that
she will be able to raise funds to bring the money
in.
[5]
In its founding affidavit dated 23 May 2022 (unfortunately
somewhat
dated in relation to the date when the matter was heard), the
applicant recorded the arrear amount to be in the sum of
R317 798.64
and the monthly instalment in the sum of approximately R21 851.05.
At the time the respondent was said
to be 14.54 months in arrears
with the payment of her normal monthly instalments.
[6]
I had hoped for an updated figure because whereas the respondent
gave
the impression that she had been making payments of what she could
afford since then, Mr. Tarr who appeared for the applicant
however
suggested the opposite.
[7]
The history of the matter is water under the bridge so to speak
but
the respondent’s woes are the common tale of the average South
African consumer battered by the ravages of a severe economic
turnaround and aggravated as a result of the COVID pandemic.
She says that she fell into arrears with her bond repayments
in 2017
already though when her salary was reduced by 50%. She
responsibly applied for debt review but was subsequently retrenched
in 2019. Apart from a small monthly pension that she currently
receives she has over the years supplemented her income as
best she
can. She applied her UIF payments towards the bond and also
sold some of her furniture. Her property has three
dwelling
units on it which she presently lets for a combined sum of R14 500,00
per month. This income stream was substantially
reduced during the
pandemic but is presently available to ply towards the payment of the
arrears.
[8]
Her son assisted her to buy a small second hand vehicle which
she
uses for E-Hailing (Bolt). She enjoyed a good income from this
venture for at least two months during which time she
paid R20 000.00
per month off on the bond, but the motor vehicle broke down. It
is currently undergoing repairs.
Once it is fixed she will hire
a male driver to assist her so that she can be on the road even at
nighttime. This should,
so she confidently projects, enable her
to increase her monthly payments.
[9]
Most significantly she has undergone training as solar installer
and
was expected to sit for the exam in June 2023. With
certification she explained that she will be a regulatory approved
solar installer increasing her chances for employment.
[10]
She is a pensioner who even at the time of making application for the
bond was already
59 years of age. She however appears to be in
good health and is physically agile (as is especially evidenced in
photographs
depicting her carrying out solar panel installations on
rooftops).
[11]
The property is the primary residence of the respondent which she
occupies together with
her major son (aged 29 years) and two of her
deceased brother’s children, aged 21 and 18 years. The
children are at
college and school respectively. Her son is employed
as a reservist in the South African Defence Force who works only for
a limited
number of days in the month. He assists her
financially as is indicated by his acquisition of the motor vehicle
for the E-hailing
business.
[12]
The property is also an important source of income for the respondent
since it boasts three
dwelling units on it which she lets out.
[13]
She points out that if she is forced to dispose of the property (a
recent acquisition which
has little equity in it at present) she will
unlikely be able to obtain affordable alternative accommodation for
her and her dependents
with her limited pension income and will in
any event be liable to pay a shortfall on the bond.
[14]
She is in arrears with the rates on the property but has reduced
these from R79 000.
00 to R35 000.00.
[15]
Mr. Tarr made the standard submissions regarding the applicant’s
entitlement to execute
on its security. These cannot be
gainsaid.
[16]
He argued however that the promises and projections made by the
respondent are simply not
good enough and are not going to cover the
amounts owing in terms of the judgement debt. The respondent
agreed with me that
it was counterintuitive to press an argument that
the applicant had been reckless in extending the loan to her in the
first place,
but the thought occurs to me that this is exactly the
kind of matter in which the applicant should be considering a
possible restructuring
of the credit agreement.
[17]
Although Mr. Tarr indicated that his firm instructions were to move
for the order prayed,
he fairly conceded that it would not be
inappropriate for this court to suspend the operation of the order
sought for a limited
period to enable the respondent to pursue her PV
Green Card Certification.
[18]
Having considered the parties’ submissions, I am inclined to
grant such an order.
The respondent has shown considerable
mettle in the face of an enormous struggle to keep her and her
family’s heads above
water straddling a period of 4 years.
She strikes me as having a committed plan, an impressive business
acumen, and ambition
to carry out her desires. She has also
shown a commitment to appearing in court personally to plead her case
on numerous
occasions and evidences a sense of responsibility for her
obligations as a credit consumer and respect for legal processes.
[19]
The order which I make below will take into account the delay in the
delivery of my judgment
herein.
[20]
I issue the following order:
1.
The immovable property as hereinafter described
and specially
hypothecated under Mortgage Bond B23[…], is declared specially
executable:
ERF 6[…] EAST
LONDON BUFFALO CITY METROPOLITAN MUNICIPALITY DIVISION OF EAST LONDON
PROVINCE OF THE EASTERN CAPE
IN EXTENT: 1106 SQUARE
METRES
HELD BY VIRTUE OF DEED OF
TRANSFER T 43[…],
for the sum of R2
107 618.27 together with interest at the rate of 8.99% per
annum, calculated daily and compounded monthly
from 1 May 2021 to
date of payment, both days inclusive, in terms of the default
judgement order of this court dated 8 February
2022.
2.
The Registrar is authorised to issue a writ
of attachment.
3.
The Sheriff of this court is authorised to
execute the warrant of
attachment.
4.
The immovable property of the respondent shall
be sold in execution
by the Sheriff subject to a reserve price of R1 800 000.00.
5.
In the event that the indicated reserve price
is not achieved at the
first sale in execution then and in that event the immovable property
of the Respondent may be sold at any
subsequent sale in execution to
the highest bidder without a reserve price.
6.
The operation of the order outlined in paragraphs
1 - 5
above shall be suspended until 1 November 2023.
7.
The respondent is liable to pay the attorney
and client costs of the
application.
B HARTLE
JUDGE OF THE HIGH COURT
DATE
OF HEARING:
26
April 2023
DATE
OF JUDGMENT :
17
August 2023
Appearances:
For
the Applicant:
Mr.
B Tarr instructed by Bate Chubb & Dickson Attorneys, East
London (ref. M1195/MAT55401.
For
the Respondent:
In
person (Email address t[...]@gmail.com)