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[2021] ZAMPMBHC 48
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Diallo v ABSA Bank Ltd (1570/2018) [2021] ZAMPMBHC 48 (18 October 2021)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NO: 1570/2018
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED: YES
18/10/2021
In
the matter between:
ATAICO
DIALLO
Applicant
and
ABSA
BANK
LTD
Respondent
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
This is an application for condonation in terms of Uniform Rule of
Court 27(3), which
provides that: “
The Court
may, on good cause shown, condone any non-compliance with these
Rules.” The Applicant seeks the condonation so that
he can
launch another application aimed at rescinding a judgment obtained by
the Respondent against him for contravention of payment
terms and
conditions contained in a loan agreement. Following the conclusion of
the aforesaid agreement, The Respondent secured
the loan it had
advanced to the Applicant by registration of mortgage bond over a
certain immovable property belonging to the Respondent
described as:
“
Erf
[....] White River Extension 18 Township, Registration Division J.U.,
Gauteng Province, measuring 1198 (ONE THOUSAND ONE HUNDRED
AND
NINETY-EIGHT) square meters and held by Respondent in terms of Deed
of Transfer Nr T52280/2001 ("the immovable property”
[2]
It is appropriate to mention at this juncture that the papers of the
Applicant appear
to have been prepared by him. Furthermore, he was
self-represented on the day of the hearing. It was manifest from the
perusal
of the papers and the Applicant’s appearance in court
that he did not have a satisfactory grasp of the legal issues and
procedures
involved in conducting his case. To the extent possible
and necessary, the Court endeavoured to assist to facilitate the
proceedings
but could not do anything with his plainly defective
papers.
FACTUAL BACKGROUND
[3]
The facts from which this matter arise are
that on 6 June 2006, the Respondent concluded a mortgage loan
agreement with the Respondent
in terms of which the Respondent
advanced a mortgage loan to the Applicant in the sum of R960 000.00.
The mortgage loan was secured
by the registration of the Mortgage
bond number B104614/06 over the immovable property described above.
The Applicant utilized
the loan advanced to him by the Respondent to
acquire ownership of the immovable property.
[4]
It should suffice to state that the Applicant fell into arrears with
his monthly bond
payments, which in terms of the loan agreement
constituted a breach. The breach of the loan agreement prompted the
Respondent to
initiate legal proceedings against the Applicant. Those
proceedings culminated on 19 July and 30 September 2016 when the
Applicant
obtained monetary judgment and authorization to execute
against the immovable property respectively.
[5]
The immovable property was advertised to go on auction on two
occasions. On the first,
the sale in execution was marketed for 25
January 2017 but before that date the Respondent accepted a payment
plan and gave the
Applicant opportunity to rehabilitate his arrears
on the account. The Applicant failed to keep to the payment plan as
arranged
resulting in resumption of legal proceedings. The immovable
property was again advertised to go on auction by the sheriff on 8
November 2017. However, on 1 November 2017, the Applicant brought all
his arrears on the account up to date. As a result, the mortgage
loan
agreement was in terms of Section 129(3) read with 129(4) of the
National Credit Act 34 of 2005 (“THE NCA”) reinstated
RENDERING THE JUDGMENT OBTAINED EARLIER INEFFECTIVE FOR PURPOSES OF
EXECUTION OF THE IMMOVABLE PROPERTY.
[6]
Once the mortgage loan agreement was reinstated, the
Applicant
again ceased making payments on the account. Naturally, his default
caused the Respondent to reignite the legal process.
This process
concluded in the Respondent obtaining a judgment by default on 30
September 2019. The judgment granted the Respondent
monetary relief
and declared the immovable property specially executable.
Additionally, the Court set a reserve price for the sale
of the
immovable property in the amount of R1 500 000.00.
Subsequently, a sale in execution for the property
was scheduled and advertised for 25 November 2020.
[7]
The sale in execution proceeded as marketed. A provisional conditions
of sale agreement
was concluded with the highest bidder for a
purchase price amount of R950 000.00. In view of the fact that the
purchase price was
less than the reserve price initially set in terms
of the order of 30 September 2019, the Respondent launched an
application as
envisaged in Rule 46A(9)(d) and (e) of the Uniform
Rules of Court. On 5 March 2021, this Court authorised the conclusion
of the
conditions of sale agreement with the highest bidder.
[8]
The anticipated rescission application by the Applicant is intended
to set aside the
default order of this Court dated 30 September 2019.
There are two grounds on which the Applicant proposes to
challenge the order of 30 September 2019 in his rescission
application.
Firstly, he contends that the deed of transfer of the
immovable property and the property description referred to in the
particulars
of claim do not correspond. Secondly, that he has already
repaid the bond registered over the immovable property.
[9]
The Respondent has argued that the immovable property has, in terms
of the order of
this Court dated 5 march 2021, already been confirmed
sold to a third party. For that reason, it raises a non-joinder
point
in limine
that the purchaser should have been made part of these
proceedings because of its direct and substantial interest it has in
the
matter. The
point in limine,
if upheld, will be
dispositive of the whole matter. Thus, it ought to be sensible to
attend to it first. That said, I proceed to
state the issues
hereunder and only thereafter shall I turn to the
point in limine
.
ISSUES
[10]
The issues are straight forward and they are:
10.1 Has the
Respondent liquidated his entire indebtedness with the Respondent
arising in terms of the mortgage loan agreement?
10.2 Is it correct
that the Title Deed Number of the immovable property and property
description as stated in the particulars
of claim do not correspond?
10.3 Should the
Applicant have joined the purchaser of the immovable property?
[11]
I have already stated
supra
that because of the dispositive nature of the non-joinder issue, it
will be constructive to traverse it first. Perhaps I should
preface
this discussion by stating that it is not any interest that a party
might have in a matter that would qualify it to be
joined to legal
proceedings. In this regard, it could be beneficial to refer to
United
Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd and Another
[
1972]
4 All SA 493
(C)
where the Court quoted from what was said in an earlier case of
Henri
Viljoen
(Pty.) Ltd. v Awerbuch Brothers
1953
(2) S.A. 151
(O).
The Court in the latter case following a thoughtful scrutiny of
authorities on the meaning of direct and substantial interest,
concluded that it entails the following: “. . . an interest in
the right which is the subject-matter of the litigation and
. . . not
merely a financial interest which is only an indirect interest in
such litigation”. This legal position holds good
to date.
See
Absa v Naude case
[2015]
JOL
33323
(SCA)
and
Judicial
Service Commission and Another v Cape Bar Council and Another
2013
(1) SA 170 (SCA)
at
para 12.
[12]
The
immovable property is the subject of a
conditions of sale agreement concluded with a third party, the
purchaser. As such, any order
granting condonation for the late
launching of a rescission application will necessarily affect the
right and interest of the purchaser
who has a direct and substantial
interest in the immovable property as it or he or she has a right to
registration of transfer
of ownership and title into its/his/her
name. The Applicant has omitted to join the purchaser to these
proceedings. The non-joinder
in these circumstances has deadly
corollaries. In the circumstances there is no justification to
proceed to attend to the other
issues when this point alone is
dispositive of the whole matter.
CONCLUSION
[13]
In the result, the application fails and I make the following order:
1.
The application is dismissed with costs.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 18 October 2021 at 10:00.
APPEARANCES:
Counsel
for the Applicant:
Mr Diallo in person
Instructed by:
Counsel for the
Respondents:
Mr KW Van Heerden
Instructed
by:
VZLR INCORPORATED
Date of
Judgment:
18 October 2021