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[2019] ZANCHC 2
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S.N.K.T v ABSA Bank Ltd and Others (600/2018) [2019] ZANCHC 2 (19 February 2019)
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
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case No:
600/2018
Heard
on: 07/09/2018
Delivered on:
19/02/2019
In
the matter between
S
N K-T
Applicant
AND
ABSA
BANK LTD
First Respondent
F
H T
Second Respondent
CECILIA
ALBERTYN
Third Respondent
REASONS AS REQUESTED
BY THE FIRST RESPONDENT
PAKATI
J
[1]
This is an application to stay the sale in execution of two
properties namely, [….], held by deed of
transfer number [….]
also known as [….] Kimberley (‘the H Property’)
and the other known as [….],
Kimberley, held by deed of
transfer number [….] also known as [….], Kimberley
(‘the D Property’), pending
the finalisation of the
divorce proceedings between the applicant, Ms S N K-T, and the second
respondent, Mr F H T (“the
T’s”). The divorce
action is pending in this court under Case Number 328/16. Both
properties are situated in Sol Plaatje
Municipality, District of
Kimberley, Northern Cape Province. Absa Bank Limited, and Mr T, the
first and second respondents, oppose
the application.
[2]
The third respondent, Ms C A, is currently the lessor of the flat
situated on H Property in terms of a verbal
lease agreement with the
Ts. Absa Bank Ltd conducts business at 80 Bultfontein Road in
Kimberley, Northern Cape and elsewhere in
the Republic of South
Africa.
[3]
On 18 September 2018 the first respondent, Absa Bank Limited, filed a
notice requesting written reasons ‘
in respect of the order
made on 06 September 2018’.
These are the reasons.
FACTUAL
BACKGROUND
[4]
The applicant, Ms S Nahid K-T, a general practitioner, and the second
respondent, Mr F H T (“the Ts”),
a neuro-surgeon
practising as such [….], were married in community of property
and their marriage still subsists. Ms T resides
at H and D Properties
with four minor children aged 14 years, 11 years, 7 years and 5 years
respectively. These two properties
are combined. Mr T used to share
it with them but moved out of the shared residence around April 2016
leaving her and the minor
children.
[5]
On 11 December 2012 the Ts requested the bank to open a Private One
Cheque Account Number [….] in their names
and honour all
cheques, vouchers bills and other negotiable instruments drawn on the
bank and purporting to be signed, made or
accepted by the bank and to
debit their account with the relevant amount whether the account had
a credit or not or otherwise.
The Ts undertook to pay the following:
5.1
All bank charges, interest and other charges as the bank may from
time to time levy in accordance with general banking practice;
5.2
To the bank on demand, should the account at any stage be overdrawn,
the amount in respect of which the account is overdrawn;
5.3
Interest calculated daily and compounded monthly on any overdrawn
balance at the rate charged by the bank for accounts to which
the Ts’
account belonged;
5.4
The bank’s legal costs on a scale as between attorney and
client. They further agreed that a certificate signed by any
bank
manager shall constitute proof of the facts therein stated, including
the capital amount owing together with interest and
the rate thereof.
[6]
The bank opened a business cheque account in the T’s names. It
lent and advanced monies to them and
disbursed the said monies for
and on their behalf culminating in the said account becoming
overdrawn in the amount of R 2 507 177-21.
The bank
complied with its obligations in terms of the agreement.
[7]
On or about 19 March 2013 the T registered a first mortgage Bond
Number. B268/2013 (Annexures “D”
and “F”) in
favour of the bank and the following (‘the H and the D
Properties were hypothecated. On the same
date they registered a
second mortgage bond No B7316/2013 (Annexure “F”) and
[….] situated in Cape Town, held
under Deed of Transfer No. T.
[….] also known [….]. The mortgage bonds were given as
security for any monies lent
and advanced to the Ts by the bank as
well as any amounts for which the Ts might have to pay to the bank
from time to time regardless
of the cause. The bank alleges that:
7.1 The Ts waived their
legal exceptions and they needed to get insurance over the
hypothecated properties;
7.2 Should they fail to
pay their monthly instalments any monies so secured in terms of the
mortgage bonds would become due and
payable immediately without
further notice and all the interest would be capitalised on date
thereof; and
7.3 A certificate
signed by any branch or other manager of the bank in which the
amounts due and payable together with interest
were set out would be
prima facie
evidence of such amounts.
[8]
In the meantime Mr T instituted divorce proceedings against Ms T in
this Court under Case Number 328/2016
on 17 February 2016 which is
still pending. During September 2016 he again approached this Court
seeking relief in terms of Rule
43 (1) of the Uniform Rules of
Court
[1]
. Pursuant to this
application Mamosebo J granted the following order on 16 September
2016:
‘
IT
IS ORDERED (BY AGREEMENT):
1.
That the
parties will jointly have the responsibility to care for the minor
children but that the children will permanently reside
with the
respondent [Ms T];
2.
That the
applicant [Mr T] will have the right to take the children with him
every alternative weekend from 12h30 on a Friday until
Monday morning
when he will deliver the children [at] school and the youngest child
by 8:00 am at the residence of the respondent
and the respondent will
fetch the children after school;
3.
That the
applicant will have the right to take the children with him for half
of every long school holiday and every alternative
short holiday per
year;
4.
That the
December holiday shall be regarded as two holidays starting from the
date on which school closes until 12h00 on the 31
st
of December, being the first part of the December holiday; and the
second part to start from 12h00 on the 31
st
day of December until school reopens. The two periods as aforesaid
shall alternate between [the] applicant and the respondent who
will
have the minor children spend with each alternative Christmas and New
Year with each party;
5.
That the
applicant will pay maintenance to the respondent [with] regards to
the minor children in the amount of R3000-00 per month
per child;
6.
That the
applicant shall keep the minor children on his hospital plan and that
the applicant will be responsible for 50% of all
reasonable medical
expenses incurred on behalf of the minor children, and 50% of any
medication prescribed by a medical practitioner.
7.
That the
applicant shall pay 50% of the children’s school fees and costs
relating to their extra-mural activities.
8. That the applicant
[Mr T]
pendete lite
will pay the following expenses:
8.1 The municipal
account in respect of the immovable properties, [….];
8.2 The bond
instalments in respect of the immovable properties, [….];
8.3 The salary of the
domestic worker;
8.4 The monthly
instalment, insurance and maintenance in respect of the Subaru
Outback motor vehicle (Reg no. [….])
8.5 That the applicant
[Mr T] will pay
pendete lite
the alarm system in respect of
the home.
3. That costs will be
costs in the main action.’
[9]
Regarding the bank loan Mr T failed to pay monthly instalments
timeously in terms and conditions of the agreement
and the covering
mortgage bonds on 18 February 2018 and the account fell into arrears.
On 14 March 2018 Absa Bank issued summons
against the Ts for payment
of R2 507 177-21, interest at 09, 55 % per annum,
capitalised monthly from 19 February 2018
to date of payment, both
days included, and that the properties mentioned at paragraph 4 above
together with [….], in the
city of Cape Town, in the Western
Cape Province held by deed of transfer [….], be declared
executable and costs on the scale
as between attorney and client.
[10] During March
2018 Ms T approached this Court seeking relief against Mr T who had
failed to comply with the Court order
dated 16 September 2016
(paragraph 5
supra
).
[11] On 24 April
2018 the bank filed an application for judgment against the Ts
jointly and severally, the one paying the
other to be absolved, in
terms of Rule 31 (5) (a) of the Uniform Rules of Court for the
payment of the amount of R2 507 177-21,
interests at the
rate 9, 55% per annum capitalised monthly from 19 February 2018 to
date of final payment, both dates inclusive
and a further application
to declared the immovable properties mortgaged by mortgage bonds
mentioned in paragraph 8
supra,
executable. On 07 May 2018 the
Registrar of this Court granted judgment by default as prayed for.
[12] Ms T alleges
that towards the end of 2017 she became suspicious that Mr T was
falling behind with his payments. She then
addressed an email
(Annexure “ST 5”) dated 18 January 2018 to the bank for
the attention of Mr Marc Adamson requesting
an update of the account.
On 19 January 2018 Mr Adamson responded and stated that he was unable
to divulge such information to
her due to the banks’ obligation
to confidential customer information because the loan account was not
in her name but Mr
T’s, unless a signed court order accompanied
her request. She alleges that Mr T had removed her signing authority
on his
accounts. He also did not make her aware of the state of the
loan account. According to her Mr T defaulted on his payments for the
first time around February 2018 though she would not say that with
certainty.
[13] Ms T’s
attorneys of record, Elliot Maris Wilmans & Hay, forwarded to the
bank’s attorneys of record,
Van De Waal Incorporated, a letter
dated 11 June 2018 requesting it to pursue the action against the Ts
until and after the divorce
proceedings were finalised, which was
turned down. On 12 July 2018 Ms T sent an urgent letter to the bank
informing them that she
and the children live in the double property
and that it would not be in the best interest of the children to move
out until the
divorce was finalised. She stated further that the
house in Bellville, Cape Town, had two potential buyers which meant
that the
bank loan would be settled using the purchase price rather
that creating instability to the children. She urged the bank to keep
her informed of the developments around the double houses by
forwarding another email dated 26 July 2018.
[14]
Notwithstanding the correspondence that Ms T forwarded to the bank
she was served with the notice of sale in execution
of the H and D
properties on 15 August 2018 and the sale was also advertised in the
Diamond Fields Advertiser dated 24 August 2018.
The sale was
scheduled to take place on 11 September 2018.
[15] On 30 August
2018 Ms T filed a notice of motion seeking an order interdicting the
bank from proceeding with the sale
of the properties on 11 September
2018 pending the finalisation of the divorce proceedings. In the
meantime Mr T approached this
Court during September 2018 seeking an
application in terms of Rule 43 (6) of the Uniform Rules of Court
[2]
pending finalisation of the divorce action due to a change in his
financial circumstances. This application was removed from the
roll
by O’Brien AJ on 31 August 2018.
[16] The bank
filed its opposing papers on 04 September 2018 and Mr T on 05
September 2018. The bank states that Ms T should
have used the rental
income received from the lease concluded orally with the third
respondent, Ms A thereby reducing the debt.
It also alleges that it
obtained an order against the Ts which was, at no stage disputed.
According to the bank the divorce proceedings
have not been finalised
for more than two years now therefore it is uncertain when it would
be finalised in the near future especially
taking into account the
various applications and counter-applications that had already taken
place between the T. It further claims
that it validly obtained
judgment against the T. It denies that Ms T was unaware of what the
status of the account was especially
taking into account the
correspondence by her attorneys to its attorneys of record. According
to the bank as per Annexure “AB1”
the last payment was an
amount of R19 571-00 made by a debit order on 01 August 2017
from Mr T’s cheque account number
40-8013-1485.
[17] The bank
also disputes that H and D immovable properties are combined. It
alleges that they are two separate properties
with different title
deeds. It states further that the application by Ms T is a delaying
tactic as no arrangements have been made
as to how she would pay the
debt. Ms T has failed to establish a
prima facie
right to the
relief sought, the argument goes.
[18] Mr T, on the
other hand, supports the sale of the properties on auction by the
bank. He alleges that the applicant is
delaying the process to
frustrate the divorce proceedings. He states that he has financial
difficulties and is not in a position
to service the bonds. Notably,
his application in terms of Rule 43 (6) was removed from the roll.
[19] The second
respondent clearly has no interest in the properties because he has
filed for divorce on 17 February 2016.
He was ordered to continue
paying for the bonds in the order dated 16 September 2016. He has
failed to do so hence the sale of
the immovable properties on
auction. The letter from the bank dated 19 January 2018 (see para
[13]
supra
) shows that Mr T approached the same bank and told
it to refuse the applicant information claiming that the loan account
was in
his name. He also removed her from all signing authority on
his accounts. At that stage already she was willing to come to the
second respondent’s rescue but was prevented from doing so by
the bank together with the second respondent. The bank could
not even
tell her whether there was compliance with the order granted on 16
September 2016. She was left in the dark. Although
she could not be
informed of the progress of the account she was served with the
warrant of execution on 18 July 2018. The question
is why the bank
and the second respondent kept the information from Ms T, who at the
end was going to be affected with the minor
children. This makes no
sense.
[20] On 12 July
2018 the applicant again begged the bank to give her information
about the account. Despite such pleas by
the applicant that the four
minor children she has with the second respondent would be affected
by the move causing them instability
they still refused and proceeded
with the execution of the warrant. It is clear that the applicant did
not sit back and do nothing.
[21] Section 28
of the Constitution states that a child’s best interests are of
paramount importance in every matter
concerning the child. In my view
neither the bank nor the second respondent would be prejudiced if the
sale of the property was
stayed until 06 March 2019. If there is any
prejudice that they would suffer it is outweighed by the interests of
the minor children
hence I granted the following order on 07
September 2018:
‘
IT IS ORDERED
BY AGREEMENT THAT:
1.
That the
Applicant’s non-compliance with the provisions of the Uniform
Rules of Court pertaining to the form and service of
this application
be condoned and that this application be heard as an urgent
application in terms of the provisions of Rules (12)
of the said
Rules;
2.
That, the
1
st
Respondent is interdicted from proceeding with the scheduled sale in
execution, situated in the Sol Plaatje Municipality, District
of
Kimberley, Province of the Northern Cape (held by Deed of Transfer
[….] also known as [….], Kimberley, up and
until 06
March 2019;
3.
That the
1
st
Respondent is interdicted from proceeding with the scheduled sale in
execution on 11 September 2018 of the property known as Erf
2565,
Kimberley, situated in the Sol Plaatje Municipality, District of
Kimberley, Province of the Northern Cape (held by Deed of
transfer
[….]) also known as [….], Kimberley, up and until
06 March 2019;
4.
That the
1
st
Respondent is to pay the costs of this application, unless this
application is opposed by the 2
nd
and/ or 3
rd
Respondent also in which case the costs of this application be borne
by such Respondent(s) that does oppose the application jointly
and
severely, the one paying the others to be absolved.’
[22]
These are basically the reasons why I granted the order above.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Applicant:
Adv D Olivier
Instructed
by:
ELLIOTT MARIS & HAY
On
behalf of the Respondent:
Adv A Van Tonder
Instructed
by:
VAN DE WAAL INC
[1]
Rule 43 (1) provides: ’This rule shall apply whenever a spouse
seeks relief from the court in respect of one of the following
matters: (a) Maintenance
pendete lite
; (b) a contribution
towards the costs of a pending matrimonial action; (c) interim
custody of any child; (d) interim access to
any child.
[2]
Rule 43 (6) of the Uniform Rules of Court provides that the court
may, on the same procedure, vary its decision in the event
of a
material change taking place in the circumstances of either party or
a child, or the contribution towards costs proving
inadequate.