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[2019] ZAGPPHC 1
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Makhafola v Standard Bank Of South Africa and Others (36612/16) [2019] ZAGPPHC 1 (28 January 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. 36612/16
In the matter between:
TAU DANIEL MAKHAFOLA
APPLICANT
AND
STANDARD BANK OF SOUTH AFRICA
FIRST RESPONDENT
CHIEF REGISTRAR OF DEEDS
SECOND RESPONDENT
SHERIFF OF THE HIGH COURT, VEREENIGING
THIRD RESPONDENT
ETIENNE NIENABER
FOURTH RESPONDENT
E NIENABER VERVOER t/a LOGICS CC
FIFTH RESPONDENT
JUDGMENT
MILLAR, A J
1.
This
application was brought initially by way of urgency in January 2018
by the applicant in order to
inter
alia
interdict to transfer of his immovable property pending an
application for rescission of a judgment that had been granted
against
him. The applicant was the registered owner of the property
against whom the first respondent, who held a mortgage bond
registered
against the title deeds of the property as security for a
loan, had obtained judgment.
2.
The
applicant had fallen into arrears with his repayment obligations to
the first respondent and it had instituted action against
him. The
applicant had defended the action and judgment was granted against
him on 6 October 2016. Besides the monetary judgment,
the court also
declared the immovable property specially executable. The applicant
subsequently brought an application for leave
to appeal the judgment
and that application was dismissed.
3.
No
further steps were taken by the applicant until it was brought to his
attention at the beginning of October 2017 that the
first
respondent intended to execute the judgment and to have the Sheriff
sell the property by way of auction.
4.
The
applicant immediately contacted the first respondent and an agreement
was reached on 29 September 2017 in terms whereof the
sale in
execution, scheduled for 6 October 2017, would be stayed and the
applicant would make certain payments to the first respondent.
The
first respondent for its part gave the third respondent instructions
to stay the sale pending the payments by the applicant.
5.
The
terms of the agreement entered into between the parties on are
disputed. I will deal with the parties’ contentions as
to what
the terms of the agreement were in due course, but it suffices to
state here that the first respondent thereafter took
the view that
the applicant had not complied with the agreement (which applicant
disputed) and subsequently instructed the third
respondent to proceed
to sell the property on auction. The property was sold on 30 November
2017 to the fourth and fifth respondents
and it was the transfer to
them that the applicant sought to interdict as a matter of urgency.
Before the urgent application was
heard on 9 January 2018, the first
respondent gave the following undertaking:
“
our
client undertakes that it will not transfer the property forming the
subject matter of the Application to the purchaser thereof,
pending
finalization of the Application (whichever form that may take). As
previously indicated the transfer has not yet been lodged
in the
deeds office
”.
6.
There
no longer being any urgency, the matter was removed from the roll and
the parties at that stage agreed time periods for the
delivery of
documents, the intention being that the application would then in the
ordinary course be enrolled for hearing on the
opposed roll of this
court.
7.
The
first respondent complied with its obligations and filed its
answering affidavit by 2 February 2018. The applicant failed to
file
a replying affidavit by 16 February 2018 and so the application was
removed from the roll a second time on 13 April 2018.
8.
A
lengthy period of time passed without the applicant delivering a
replying affidavit and the first respondent then enrolled the
matter
for hearing on 28 January 2018.
9.
Once
the matter had been enrolled, the applicant then delivered a replying
affidavit, with an application for condonation on 9 January
2019, as
well as a notice to amend his notice of motion on 17 January 2019.
Neither the application for condonation nor the application
to amend
the notice of motion were opposed by the first respondent and were
granted.
10.
The
relief sought by the applicant in Part A of the Notice of Motion is
interdictory in nature and was rendered nugatory by the
undertaking
given by the first respondent.
11.
The
relief sought in Part B of the Notice of Motion seeks primarily in
paragraph 2, an order for the rescission of the judgment
granted by
Murphy J on 6 October 2017 and in the alternative, introduced by way
of the amendment, for orders that are superfluous
in that they are
merely a statement of the legal consequences that would follow were
the judgment to be rescinded.
12.
The
applicants counsel conceded at the outset that no case had been made
out for rescission. The case for the applicant as it appears
from the
papers is not that the judgment is impeachable but rather that the
execution of that judgment is because of the agreement
reached to
stay it.
13.
The
parties are
ad
idem
that
an agreement was reached and that the sale in execution on 6 October
2017 was stayed. They differ on the terms of the agreement
and
whether the applicant fulfilled his obligations.
14.
On
29 September 2017, the applicant had spoken to a representative of
the first respondent – Ms Priscilla Madingwane who had
agreed
with the applicant that he would make payment of R300 000.00
before 2 October 2017 and would thereafter pay R75 000.00
per
month for 6 months, commencing on 15 November 2017 until all the
arrears had been settled in order to stay the execution.
This
was corroborated by contemporaneous notes made by her and also in
material respects by an email sent to her by the applicant
on 29
September 2017.
15.
The
only difference between the agreement recorded by Ms Madingwane and
that confirmed by the applicant in his email, was that the
first
payment would be in the sum of R267 144.00 and not R300 000.00
She however, subsequently sent the applicant
an email on 2 October
2017 disputing the applicant’s contention regarding the amount
of the first payment.
16.
The
first payment made by the applicant was in the sum of R150 000.00
which was made on 4 October 2017. When the applicant
failed to
make the further payments that had been agreed, the first respondent
proceeded to instruct the third respondent to continue
the execution
process and sell the immovable property on 30 November 2017.
17.
When
it became apparent to the applicant that the first respondent was
intent on proceeding with the sale, he again made a further
payment,
albeit that he still did not comply with the agreement, even on his
own version of it by the time that the sale in execution
took place,
he had not complied. On applicant’s own version, he was
to have paid R267 144.00 and R75 000.00
– a total
amount of R342 144.00 by 15 November 2017. Instead, by
then, all that had been paid by the applicant
was R200 000.00,
with a further R100 000.00 being paid on 16 November 2017.
18.
Even
though there is in the circumstances a dispute of fact as to what the
terms of the agreement were, on the applicant’s
own version he
failed to comply with the agreement. Even if this were not so,
on the papers before the Court, the terms of
the agreement contended
by the first respondent
[1]
,
are as a matter of probability the terms of the agreement that was
entered into on 29 September 2017.
19.
In
the present matter, even if it were to be found that the parties
entered into an agreement on the terms contended for by the
applicant, his own failure to comply with those terms constituted a
breach of the agreement which entitled the first respondent
to
proceed with execution as it did.
20.
The
applicant has used every arrow in his proverbial quiver in order to
delay and frustrate the execution of the judgment obtained
by the
first respondent. In the period of almost a year between the
dismissal of the application for leave to appeal until
the first
respondent first took steps to sell the immovable property, the
applicant was content to sit idly by and took no steps
to pay the
judgment debt or part thereof. Once the property was to be
auctioned, the applicant was galvanized into action
and entered into
the agreement with the first respondent to stay the sale.
Having reached an agreement, with the sale having
been stayed, he
again failed to comply with the agreement until the property was
again to be sold on auction. This reactive
behavior manifested
again after the urgent application was brought and the first
respondent gave the undertaking that it did.
The applicant had
obtained what he wanted which was to prevent the transfer of the
property and again sat idly by. It was
only after the first
respondent again took steps to bring the litigation to a finality by
setting the matter down that an application
for condonation was
brought for the filing of a replying affidavit 168 days out of time.
This was also accompanied by an
amendment to the notice of motion –
both of which occurred two weeks before the hearing.
21.
The
conduct of the applicant is to be deprecated. He has embarked
on a deliberate course of action to frustrate and delay
the
finalization of the litigation between himself and the first
respondent. It is for this reason that I intend to make
an
award for punitive costs on the scale as between attorney and own
client.
[2]
22.
In
the circumstances I make the following order:
22.1
The
application is dismissed.
22.2
The
applicant is ordered to pay the costs of the application and for the
application for condonation and to amend the notice of
motion on the
scale as between attorney and own client.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
28
JANUARY 2019
JUDGMENT
DELIVERED ON:
28
JANUARY 2019
COUNSEL
FOR THE APPLICANT:
ADV J MOLLER
INSTRUCTED
BY:
MAKHAFOLA &
VERSTER INC
REFERENCE:
MR S
MAKHAFOLA
COUNSEL
FOR THE FIRST RESPONDENT:
ADV. RJ GROENEWALD
INSTRUCTED
BY:
VAN
HULSTEYNS ATTORNEYS
REFERENCE:
MR A
LEGG
NO
APPEARANCE FOR THE SECOND, THIRD, FOURTH AND FIFTH RESPONDENTS.
[1]
STELLENBOSCH
FARMERS WINERY LTD v STELLENVALE WINERY (PTY) LTD
1957 (4) SA 234
(C) @ 235 E-G; see also PLASCON-EVANS PAINTS LTD v VAN RIEBEECK
PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A) @ 623 I to 624 A
[2]
De
la Guerre v Ronald Bobroff & Partners Incorporated and Others
[2013] JOL 30002
(GNP)