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2022
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[2022] ZAECMKHC 105
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De Beer v Zitlamu Eiendomme (Pty) Ltd and Another (CA120/2020; 10704/2018 & 2915/2020) [2022] ZAECMKHC 105 (2 December 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
APPEAL
CASE NO: CA120/2020
CASE
NO IN THE COURT A QUO: 10704/2018 & 2915/2020
In
the matter between:
FRANCOIS
DE BEER
Appellant
And
ZITLAMU
EIENDOMME (PTY)
LTD
First Respondent
CUROSOL
PROPERIETARY LTD
Second Respondent
JUDGMENT
GWALA
AJ
1.
This matter concerns an order made by the
additional Magistrate: Gqeberha in the District Court of Gqeberha
(the court
a quo
). The
court
a quo
made an
order in the following terms:
“
[24] The
judgement debtor is ordered to pay an amount of R2000.00 to the first
judgement creditor ZITLAMU EIENDOMME (PTY)
LTD and an amount of
R2000.00 to the second judgement creditor: CUROSOL PROPERIETARY
LIMITED with effect from the 01 June 2021
and thereafter on the first
day of each succeeding month until both debts legal costs have been
paid in full.”
2.
The appellant is the judgment debtor. The first
and second respondents are judgement creditors. The first and second
respondents
instituted separate actions in the court a quo pursuant
to which they obtained default judgements against the appellant.
3.
The first respondent obtained judgement against
the appellant in the capital sum of R229 814 98 (two hundred and
twenty-nine thousand
eight hundred and fourteen rand ninety-eight
cents) and costs. On the other hand, the second respondent also
obtained default judgement
against the appellant in the amount of
R138 073.30 (one hundred and thirty-eight thousand and
seventy-three-rand thirty cent) together
with costs.
4.
When the judgments remained unsatisfied, the
judgment creditors separately issued notices calling upon the
appellant to appear before
a magistrate for an inquiry in terms of
Section 65A (1) of the Magistrates’ Court Act 32 of 1944 in
respect of both judgment
debts. The enquiry was held simultaneously
before the magistrate. The matters were not consolidated though.
5.
From the appellant’s evidence at the
inquiry, it appeared that the appellant is employed. He was earning a
monthly salary
in the amount of R15 300 (fifteen thousand three
hundred rand) per month. Occasionally, he earns an extra income from
part time
jobs which he does over the weekends and that income ranges
between R500 (five hundred) and R600 (six hundred) per job.
6.
He stays in a rented house and pays an amount of
R5 000 (five thousand rand) for rental. His other expenses as
outlined by him are
as follows: he pays an amount of R1 900 (one
thousand nine hundred) per month for his contract with Mobile
Telecommunications Network
(MTN); a sum of R4 262 (four thousand two
hundred and sixty two rand) for a life policy with Momentum over his
life; a sum of R1
132 (one thousand one hundred and thirty two rand)
for short term insurance with Santam for his vehicle; a sum of R1 460
(one
thousand four hundred and sixty rand) for a hospital plan; a sum
of R2 926 (two thousand nine hundred and twenty six rand) for his
vehicle hire purchase; R 201 (two hundred and one rand) for his
internet connection; R1 050 (one thousand and fifty rand)
in
respect of other credit agreements; a sum of R1500 (one thousand five
hundred) for his son who is an adult staying on his own;
as well as a
sum of R1 000 (one thousand rand) for his chronic medication.
7.
Upon analysis of the financial status as
presented by appellant, the court
a quo
found that there are sufficient funds that could be utilized to pay
off the judgment debt. The court
a quo
reasoned that there are sufficient funds
available that could be utilised towards the settlement of the
judgment debts. The court
a quo
reasoned
that the amount of R4 262 (four thousand two hundred and sixty two
rand) which the appellant pays towards his life policy
is such an
amount that could be used towards payment of the judgement debts. On
this basis she made order referred to above.
8.
In his notice of appeal, the appellant attacks
the reasoning of the court
a quo
on various grounds. I deem it not necessary to deal with each of the
grounds of appeal in the form they appear in the notice of
appeal. It
is unnecessary to do so because they are an attack on the reasons for
the judgment. It is trite that in the final analysis
an appeal lies
against the order of the court and not necessarily against the
reasons given for the order. For instance, in
South
African Reserve Bank V Khumalo and Another
2010 (5) SA 449
SCA at para 4, the Supreme Court of Appeal stated the
principle as follows:
[4]
An appeal lies against an order that is made by a court and not
against its reasons for making the order. ... This means that the
principal issue on which the appeal turns is whether the full bench
was correct in its conclusion on the invalidity of reg 22C(1)
for the
reasons that it gave. If the respondent fails on that issue and on
the subsidiary issue that I referred to, then the order
that it made
falls to be set aside, and the challenge to the validity of the order
falls to be dismissed. ...” See also Baliso
v First Rand Bank
Ltd t/a West Bank
2017 (1) SA 292
CC para 8.
9.
With that said, the issue in this appeal turns on
whether the court
a quo
was correct in its conclusion that the appellant be ordered to pay
the amount of R2000 to each of the judgement creditors. If on
the
analysis the court
a quo
was
correct, there ends the chapter. If not, then what is the appropriate
order in the circumstances?
10.
The purpose of s 65A of the Act is to conduct an
enquiry into the financial position of the judgment debtor so that
the court can
make an order which has as its aim the settlement of
the judgment debt. The clear object of the notice in terms of s 65A
of the
Act is to enforce the already existing judgment debt.
11.
This will of necessity turn on whether
considering the financial circumstances of the appellant there are
sufficient funds available
that could be utilized towards the
settlement of the judgment debts. The analysis of the financial
position of the appellant as
disclosed by him in evidence at the
inquiry indicates that there is an amount of R4 262 (four thousand
two hundred and sixty-two)
that he pays towards his life policy.
12.
The life insurance is not a necessity. It is not
one of the basic necessities of life. In its nature it is a provision
for after
life which the insured life never derive any benefit from.
In fact, it could be characterised as luxurious in certain
circumstances
such as those of the appellant who is currently in a
situation where he is unable to afford to pay off his judgment debt.
13.
The appellant will never utilize for betterment
of his life the pay out of his life insurance policy as such policies
pay out only
upon the death of the insured. The amount that he pays
towards his life insurance, if re-directed, will go a long way
towards satisfying
the judgement debts. Whilst the said amount
appears to be little compared to the judgment debts, it will
nevertheless go a long
way towards settling the debts. It will reduce
the capital amount at least by R24 000 per year. As the
financial situation
of the appellant improves, more funds will be
available to satisfy the judgment debt.
14.
I am of the view that the court
a
quo
was correct and cannot be faultered in
finding that there are sufficient funds that could be utilized to pay
the judgement creditors.
There is no basis to interfere with the
order of the court
a quo
.
Accordingly, the appeal lacks merit and falls to be dismissed.
15.
The appellant passionately argues that the court
a quo
should not have
rejected his proposition that it was the aim of the legislature in
providing for the inquiry proceedings in terms
of section 65A of the
Magistrates’ Court Act to facilitate the settlement of the
judgment debt. This argument does not cut
the ice. It does not
contribute on the question whether the court
a
quo
was correct in making the order. The
appellant may very well be correct in his interpretation but it is
neither here nor there.
Whilst it may stand, it has no bearing on
whether the order was correct which is the focal point of the appeal.
16.
Section 65A is a procedure that is available to a
judgment creditor to secure the attendance of the judgment debtor
before the lower
court and to compel such judgment debtor to disclose
his financial position in order to enable the court to inquire into
such financial
position and to make such order as the court may deem
just and equitable. The court has a discretion in this regard guided
by the
consideration of what is just and equitable in the
circumstances of each case. This much clearly appears from the
provisions of
section 65A(1)(a) themselves. The remainder of the
provisions of section 65A make provisions for the procedure that will
be followed
for purposes of the inquiry.
17.
The appellant contends that the amount of R2000
(two thousand rands) is too little to satisfy the judgment debts. It
will result
in a situation where there are no prospects that the
appellant will discharge the debt within a reasonable time. In his
view an
appropriate order in the circumstances would be that the
inquiry in terms of section 65A (1) of Magistrates’ Court Act
32
of 1944, is closed. This view too does not cut the ice. It will
not be just to the creditors. The appellant does have funds available
that could be re-directed to satisfy the debt.
18.
The issue for consideration at 65A inquiry is the
financial position of the judgment debtor to determine whether there
are funds
that may be used to satisfy the judgment debt over a period
of time. The little that is available is better than nothing. The
financial
position of a debtor may improve over time. The very reason
to invoke section 65A is that the judgment debtor is unable to settle
the debt when called upon to do so. The judgment debtor gets an
opportunity to satisfy the debt over a period of time.
19.
It must be borne in mind that the judgment debtor
has an obligation to give effect to the court order. Invariably, at
the stage
section 65A is invoked, there is already a court order that
the judgment debtor has an obligation to satisfy. To expect the court
to look away when there are funds that may be utilised to satisfy the
debt, no matter how little they may be, will not be consonant
with
the obligation that a court order is binding upon whom it applies and
must be given effect to as long as it has not been set
aside.
20.
I have concluded that there is no merit in the
appeal and that it falls to be dismissed. I am of the view that costs
should follow
the event. In the circumstances I propose the following
order:
a)
That the appeal is dismissed with costs.
M.Gwala
Acting
Judge of the High Court of South Africa
Beshe
J
I
agree and it is so ordered.
N.G.
Beshe
Judge
of the High Court of South Africa
For
The Appellant:
Adv. Westerdale
For
First Respondent:
For
Second Respondent:
Date
of Hearing:
02 December
2022
Date
of Judgment:
02 December 2022