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[2019] ZAGPPHC 255
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Sekgala v Sheriff of the High Court and Others (12231/2014) [2019] ZAGPPHC 255 (25 June 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED.
Case No: 12231/2014
25/6/2019
In
the matter between:
SEKGALA,
RAMMUTLANA
BOELIE
Applicant
and
THE
SHERIFF OF THE HIGH COURT
First Respondent
JOHANNESBURG
EAST
Second Respondent
NEDBANK
LIMITED
Third Respondent
CHRISTOPHER
NUNES
THE
REGISTRAR OF DEEDS,
PRETORIA
Fourth Respondent
INRE:
NEDBANK
LIMITED
Plaintiff
and
SEKGALA,
RAMMUTLANA BOELIE
Defendant
JUDGMENT
HF
JACOBS, AJ:
[1] This is an application
for the declaring of the judicial attachment by the first respondent
(the Sheriff)
at the behest of the second respondent (Nedbank)of the
applicant's immovable property
[1]
null and void and further for the setting aside of the sale in
execution at which the said property was sold by the Sheriff to
the
third respondent on 25 January 2018 and for ancillary relief. The
applicant appeared in person and the summary of the relief
sought has
been distilled from the notice of motion he delivered. The present
litigation between Nedbank and the applicant commenced
during January
2014 when Nedbank instituted proceedings against the applicant
claiming payment of an outstanding debt and foreclosure
in terms of a
mortgage bond in respect of the property mentioned above. This Court
granted judgment against the· applicant
during 2015. That
litigation came to an end on 9 May 2019 when the Constitutional Court
refused the applicant leave to appeal against
the judgments of this
Court.
[2]
[2]
Application is therefore made as
recorded in paragraph 1 above by the applicant conceding -that the
judgment granted in favour of
Nedbank against him is final after he
has exhausted all remedies to challenge the judgment. In this
application the applicant relies
on the following grounds for the
relief sought:
[2.1] that Nedbank
failed to comply with the provisions of Rule 46(8)(c) of the Uniform
Rules of Court
in that the conditions of the sale in execution was
not served cm him;
[2.2] that Nedbank
and the Sheriff failed to disclose that there existed arrear
municipal rates and
taxes payable by the applicant in respect of the
property to the local authority concerned at the time of the sale in
execution
and that failure to publish that fact constitutes a
material defect In the execution process which renders that process
null and
void;
[2.3] that the
Sheriff and Nedbank failed to publish, prior to the sale in
execution, that the applicant
was indebted to the body corporate of
the property in respect of arrear levies and that the failure to so
publish constitutes a
material defect in the execution process which
also renders it null and void;
[2.4] that the
Sheriff and Nedbank failed to state prior to and during the sale in
execution whether
it was to be sold with or without a reserve and
that failure to do so constitutes a material defect in the execution
process rendering
the sale in execution null and void;
[2.5] that the
Sheriff and Nedbank failed to serve a notice of attachment of the
property on the applicant;
[2.6] that the
sale in execution took place while there was an appeal pending to the
Constitutional
Court .against the judgment against the applicant
which was only finalised on or about 9 May 2019; and
[2.7] that there
was a general lack of transparency in the execution process for want
of disclosure
of the arrear levies, rates and taxes and the like
information which caused the third respondent to purchase the
property at the
sale in execution.
[3]
When the matter was called the applicant
handed up a notice in terms of Rule 30(2)(b) raising a complaint that
Nedbank's set down
of the application constitutes an irregular step
in that:
[3.1]
Nedbank's answering affidavit was served out of time;
[3.2]
no agreement exists between the parties extending the time
period for
the filing of Nedbank's answering affidavit; and
[3.3]
Nedbank failed to bring a condonation application or
an
application in terms of Rule 27(1) for the extension of time to
file its answering affidavit.
[4]
I will deal with the aspects raised in
Rule 30(2)(b) notice of the applicant and postpone discussion of the
rescission application
to later in this judgment.
[5]
The applicant's contention that
Nedbank's answering affidavit is out of time is correct. But the
applicant's statement that no condonation
was sought by Nedbank in
its answering affidavit is incorrect. Nedbank's answering
affldavit
[3]
contains
in paragraphs 29 to 31 under the rubric
"CONDONATION,.
an apology for the late filing of
the answering affidavit and record facts and reasons for the late
filing of the answering affidavit.
The applicant's contention that
there is before me no application for condonation is factually
incorrect. In addition thereto,
the applicant submitted that by
reason of the absence of a formal application for condonation there
exists no answering affidavit
that may be taken into account for
purposes of this application and, therefore, the applicant was thus
far under no obligation
to file a replying affidavit and further that
-should the answering affidavit of Nedbank be received and the late
filing thereof
condoned, the applicant would still have the
opportunity to file a replying affidavit in response to the belated
answering affidavit.
[6]
During his address in open Court it
became clear to me that Mr Sekgala wilfully withheld his replying
affidavit. He was clearly
well acquainted with the Rules of Court,
Rules of Practice and what was expected from him as a litigant in
these proceedings. From
the outset Mr Sekgala informed me that he had
been advised on matters germane to his application and it was clear
from Mr Sekgala's
address In open Court that he chose not to file a
replying affidavit and therefore decided not to answer to the
condonation application
of Nedbank taken up in the last paragraphs of
its answering affidavit. Under the circumstances I am of the view
that Mr Sekgala
failed to file a replying affidavit at his peril. He
did not apply for leave to file a replying affidavit or applied fora
postponement
to do so. He simply submitted that should the answering
affidavit be received and the late filing thereof condoned, he would
become
entitled to file a reply.
[7]
I am of the view that the late filing of
Nedbank's answering affidavit should be condoned for the reasons
stated in its answering
affidavit. I will now return to the
application for rescission of the sale in execution.
[8]
The chronology gleaned from the papers
filed of record is relevant in the present context. The sale in
execution took place on 25
January 2018. On 17 November 2017 an
amendment of the rules regulating the conduct of the proceedings of
the several provincial
and local divisions of the High_ Court of
South Africa was published.
[4]
In terms of the amendment a new Rule 46 regulating execution of
immovable property was Introduced as was Rule 46A regulating
execution
against residential immovable property. In terms of
paragraph 8 of the amendment it came into operation on 22 December
2017.
[9]
The history of the litigation between
the applicant and Nedbank is set out in paragraphs [7]-[12] of the
judgment of the Constitutional
Court.
[5]
I supply a brief summary of that chronology:
[9.1] The
applicant obtained a home loan secured by a mortgage bond from
Nedbank and defaulted
on repayments;
[9.2] In
2011 Nedbank obtained default judgment against the applicant for
arrear payments. The
applicant applied for, and was granted, interim
interdictory relief staying a warrant of execution which had been
obtained by Nedbank
for the applicant's default;
[9.3] The
applicant then applied for rescission of the default judgment;
[9.4] In
2014 Nedbank Instituted new proceedings under the present case
number, 12231/2014 in
this Court and filed a notice of withdrawal in
the case instituted against the applicant during 2011;
[9.5] On 15
September 2015 Makume J gave judgment in favour of Nedbank against
the applicant
and dismissed his application for rescission. Leave to
appeal was also refused;
[9.6] The
applicant then unsuccessfully petitioned the Supreme Court of Appeal
for leave to
appeal;
[9.7] The
applicant then made application to the President of the Supreme Court
of Appeal in
terms of
section 17(2)(f)
of the
Superior Courts Act of
2013
. The application was based on the allegation that exceptional
circumstances exist. That application to the President of the Supreme
Court of Appeal was dismissed on 27 February 2018;
[9.8] On
19 February 2019 the Constitutional Court dismissed the applicant's
application
for leave to appeal.
[10]
Section 18
of the
Superior Courts Act,
10 of 2013
provides that, absent an order of court, the operation and
execution of an order is suspended pending an application for leave
to appeal or an appeal. An application for reconsideration of the
refusal of leave to appeal by the Supreme Court of Appeal in terms
of
section 17(2)(b)
takes place in terms of
section 17(2)(f).
The power
of the President of the Supreme Court of. Appeal is stated in
paragraph 30 of
Cloete.
[6]
On 15 December the applicant applied to the President of the Supreme
Court of Appeal to
"refer"
the decision of the other two judges
dismissing his application for leave to appeal
"to
the Court"
for reconsideration
or variation. The application to the President of the Supreme Court
of Appeal is not a decision to grant or
refuse leave to appeal. It Is
part of the appeal process.
[7]
Under the circumstances it follows that the application of the
applicant to the President of the Supreme Court of Appeal in terms
of
section 17(2)(f)
on 15 December2017 suspended execution and Nedbank
was not entitled to proceed with execution and the sale of execution
is for
that reason void. Under
the circumstances it Is not necessary to consider the other grounds
relied on by the applicant In his challenge of the validity of the
sale in execution.
[11]
The applicant appeared in person. His
exposure to costs in this application is minimal. Under the
circumstances and having regard
to the technical nature of the
applicant's challenge I am not inclined to make any order of costs in
these proceedings.
I make the following order:
1.
The
judicial attachment and sale in execution of the property known as
Section number 72 described on Sectional Plan No:
SS750/1995
in the
Sectional Title Scheme known as Wilbur Woods situated at Rembrandt
Park Extension 6, Johannesburg on 25 January 2018 is
set aside; and
2.
There
will be no order as to costs.
HF JACOBS
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
[1]
Section number 72 described on Sectional Plan No:
SS750/1995
In the
Sectional Title Scheme known as Wilbur Woods situated at Rembrandt
Park Extension 6, Johannesburg.
[2]
See order of the Constitutional Court dated 9 May 2019 under case
number CCT56/19' between Rammuttana Boelie Sekgala and Nedbank
Limited and case number CCT63/2018 between Rammutlana Boelle Sekgala
and Nedbank Limited published under neutral citation
Cloete
&
Another v
S;
Sekqala v Nedbank Limited
[2018] ZACC 6
per Theron J decided on19 February 2019.
[3]
At pp 38-91.
[4]
See Government Gazette No: 41257 of 17 November 2017.
[5]
See footnote 2 above.
[6]
Cloete
&
Another v S; Sekgala v Nedbank Limited
[2018]
ZACC
6
per Theron J decided on 19 February 2019.
[7]
Cloete
&
Another v S
par [33];
Sekgala v
Nedbank Limited
[2018] ZACC 6
per Theron J decided on 19
February 2019;
Liesching v S
2017
(4) BCLR 454
(CC).