About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2019
>>
[2019] ZAKZDHC 9
|
|
Soobramany and Another v Changing Tides 17 (Pty) Ltd and Another (487/2011) [2019] ZAKZDHC 9 (28 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO: 487/2011
In the matter between:
COLLIN
SOOBRAMANY
1
st
Applicant
VIJAYLUXMI
SOOBRAMANY
2
nd
Applicant
and
CHANGING TIDES 17
(PTY) LTD
(Registration
No.:
2001/009766/07)
1
st
Respondent
SHERIFF
OF THE HIGH COURT, CHATSWORTH
2
nd
Respondent
ORDER
After hearing counsel and
considering the matter, I make the following order:
The application is
dismissed with costs on the attorney and client scale.
JUDGMENT
Date
Delivered: 28 May 2019
Masipa J
Background
[1]
This matter has a long history having initially been heard on 31
March 2011, and thereafter
on approximately 17 sittings over a period
of eight years. It emanates from an application by the first
respondent to have an immovable
property declared specially
executable.
[2]
The current application is brought by the applicants as an
application to stay the
sale in execution set for 28 May 2019. It is
the third such application with the two earlier applications having
been dismissed
with costs. Despite these dismissals, the first
respondent did not proceed with the sale pursuant to undertakings to
pay by the
applicants, alternatively the filing of an application for
leave to appeal.
[3]
It is necessary to set out the full relief sought by the applicants
in this matter
which is the following:
‘
1.
A
rule nisi do hereby issue calling upon all interested parties, if
any, to show cause before the above Honourable Court, on the
11
th
day of June 2019 at 09h30 or so soon thereafter as the matter may be
heard, why an Order should not be granted in the following
terms
that:
a.
Non-compliance
with the uniform rules be condoned in terms of Uniform Rule 6(12)
(a).
b.
The
sale in execution set down for the 28 May 2019, of Portion 5782 of
5762 of Erf 107 Chatsworth situate at 75 Progress Avenue,
Moorton,
Chatsworth is stayed.
c.
The
Judgement of this honourable court, under case number 487/2011 dated
20 March 2017 is rescinded and set aside.
d.
The
settlement agreement dated 14 June 2011 between the applicants and
the first respondent is set aside.
e.
The
second applicant is compliant with the debt restructuring order 25
July 2008, under case number 22340/2008 of the Durban Magistrate
Court.
f.
Costs
of application.
2. Prayer (b) to act as an interim
interdict until the rule nisi is either confirmed or discharged.
3. Alternatively, a reserve price for
the sale in execution is set at R 600 000-00 of Portion 5782 (of
5762) of Erf 107 Chatsworth
situate at 75 Progress Avenue, Moorton,
Chatsworth.’
The
Facts
[4]
On 12 December 2006, the applicants concluded a mortgage loan
agreement, secured by
a bond registered in favour of South African
Home Loans Guarantee Trust, over the property described as Portion
5782 (of 5762)
of Erf 107 Chatsworth in extent 243 square metres. The
first respondent is a trustee of this trust. During 25 July 2005, the
first
applicant experienced financial difficulties and applied for
debt restructuring. It is important to mention at this stage that the
applicants are married in community of property. It is not disputed
that the applicants failed to comply with the terms of the
debt
restructuring order. The first respondent issued summons against the
applicants which led to the parties concluding a settlement
agreement
on 14 July 2014. In terms of that agreement, the applicants
acknowledged their indebtedness to the first respondent and
undertook
to make monthly payments of R2 854 for six months, and thereafter R3
752.82 until the loan was settled in full. It was
also agreed that
the applicants would sign a consent to judgment. However, only the
second applicant signed it.
[5]
On 23 July 2014, pursuant to the applicants’ breach of the
settlement agreement,
the first applicant, relying on the strength of
the consent to judgment, sought and obtained judgment in the amount
of R383 549.22
plus interest and an order declaring the
immovable property executable. Following this, the applicants filed
an application for
rescission of judgment on 21 March 2015 on the
basis that the debt review order had not been terminated, that the
settlement agreement
and confession to judgment were not
countersigned by the first applicant and lastly, that the first
applicant had several medical
conditions. The judgment was rescinded
by Jappie JP after hearing argument on the opposed roll.
[6]
Subsequent to the rescission of the judgment, no further steps were
taken by the applicants,
which resulted in the first respondent
applying for judgment based on the settlement agreement. The
applicants opposed the application
on the basis that the debt review
order had not been terminated, that the settlement agreement and the
confession to judgment were
not countersigned by the first applicant,
that legal fees have been debited to the account, and lastly denied
the arrears. The
matter was heard as an opposed application before
Jappie JP on 20 March 2017.
[7]
The court in that instance, following an application for adjournment,
raised concerns
that the matter was long outstanding and confirmed
with the first applicant that monies were owed to the first
respondent. The
court indicated that the matter had nothing to do
with the debt review but related to a settlement agreement. The court
indicated
that it was apparent from the papers that the debt review
had been cancelled. The first applicant indicated that they could not
afford to pay the instalments in terms of a settlement agreement and
had not made any payment towards the loan over a period of
62 months.
The first applicant made a tender to pay upon receipt of a payment
from his pension fund. As correctly stated by the
first respondent,
this tender was made on numerous previous occasions but was never
effected.
[8]
The order was granted in favour of the first respondent in the amount
of R434 080.96
as appeared on the certificate of balance.
Interest was granted at the rate of 10.1 per cent which the court
found was in accordance
with the settlement agreement. This was on
the basis that the applicants were in breach of the settlement
agreement, and that the
first applicant had admitted to the
indebtedness and raised no defence to this. Pursuant to the judgment,
the first respondent
applied for a second sale in execution.
Approximately four months later, the applicants applied for leave to
appeal the judgment
of 20 March 2017. On 19 July 2017, that
application was dismissed with costs on attorney client scale.
[9]
The first respondent proceeded to obtain a date, the third one, for a
sale in execution,
and approximately three months later, the
applicants petitioned the Supreme Court of Appeal, which petition was
refused with costs.
The first respondent applied for a fourth sale in
execution and obtained a date for 30 October 2018. The applicants
launched an
urgent application to stay the sale on the following
grounds:
1.
that legal costs were debited to the account;
2.
the prejudice to be suffered by the applicants should the sale
proceed;
3.
the first applicant’s medical condition;
4.
concerns about the debt review;
5.
that their son would assist with the bond payment;
6. that
the disability grant/pension they had been awaiting for in the amount
of
R147 000 would be received during the first week of December;
and
7.
complaints about the conditions of sale.
[10]
At the hearing of that application before Madondo DJP on 29 October
2018, the applicants made
a tender of R100 000, and further
monthly payments of R4 000. After hearing the application, it
was dismissed with costs.
The applicants then approached the first
respondent with a tender of R50 000, and pleaded for the sale
not to proceed. The
first respondent agreed to this. Not
surprisingly, the applicants again did not keep to the promised
tender and made no payments.
The first respondent applied for a fifth
sale in execution which was set for 26 February 2019.
[11]
On 22 February 2019, the applicants launched another urgent
application to stay the sale pending
a rescission application. This
matter was argued before me. The issues raised by the applicants in
this instance were the following:
1.
the applicants sought the introduction of a reserve price;
2.
raised the issue of legal costs;
3.
raised the issue of the property to be sold being their primary
residence;
4.
raised the issue of debt review; and
5.
stated that the notice of sale did not properly describe the
property.
[12]
Having raised the settlement agreement and the confession to
judgment, the applicants’
counsel conceded that these issues
had been raised before and considered. The applicants’ counsel
also conceded that the
applicants had not paid the loan, and
attributed this to their medical condition. He further conceded that
the applicants previously
made a tender to pay the monies owed.
[13]
This application for 22 February 2019 was also dismissed with costs.
Thereafter, the applicants
applied for leave to appeal. A request for
reasons for the order was made and the reasons were provided on 20
March 2019. In these
reasons, it was noted that the judgment which
the applicants sought to rescind was the judgment of 15 September
2015 relating to
the confession to judgment, which judgment was
rescinded by Jappie JP. Further, that the introduction of a sale
price related to
rule 46A which came into effect on 22 December 2017,
which was after the judgment and the declaration of executability of
the applicant’s
property, and that the provisions of this rule
did not apply retrospectively. I noted that the tender for payment
based on a payment
from the pension fund was made on numerous
occasions, and that the applicants owned another immovable property
with the result
that they would not be prejudiced to be without a
home as envisaged by s21 of The Constitution of the Republic of South
Africa,
1996.
[14]
It was further noted that the applicants had done all they could to
frustrate the first respondent’s
endeavours to obtain judgment,
and to secure payment for the loan by continuously raising issues
already determined by the court.
Numerous attempts were made to set
the application for leave to appeal down at the convenience of the
applicants’ legal representatives.
The application was
ultimately set down on 13 May 2019, one of the dates provided by
them. Despite providing the date, the applicants’
representatives again sought a change of the date and when this was
declined, withdrew as attorneys of record. The first applicant
appeared in person and sough an adjournment of the application.
[15]
The first applicant appeared in person at the application for leave
to appeal, and after a failed
application for adjournment and an
attempt to raise new issues, the application for adjournment and the
leave to appeal were dismissed
with costs. The first respondent
obtained a sixth sale date. The rescission application was set down
for 10 June 2019. In view
of the sale date, the applicant launched
the third application to stay the execution pending the current
application. The application
is premised on the following issues:
1.
a complaint about legal fees which were charged when they were not
due;
2.
interest allowed by Jappie JP at the rate of 10 per cent when the
settlement
agreement provided for 7.70 per cent;
3.
that the settlement agreement was not signed by the first respondent;
4. failure
by the first respondent to serve the requisite notice in terms of
s129
of the National Credit Act 34 of 2005 (‘the NCA’) on
the applicants;
5.
that they were not in arrears when judgment was taken against them;
6.
that the settlement agreement was not in compliance with the Uniform
Rules of
Court when judgment was granted;
7.
the rescission of the judgment on the grounds set out above.
Submissions
by counsel and analysis
[16]
Mr
Nicholson, for the applicants, argued that since the rescission
application was set down for 10 June 2019, it was therefore pending.
It was not competent for this court to determine the matter and that
it was appropriate that the sale in execution be stayed pending
the
rescission application. This argument could however not be sustained
in light of the relief sought by the applicants in the
current
application. In fact, as was submitted by Mr Aldworth, for the first
respondent, the applicants suggested in their founding
affidavit for
the current application, that they may have been given incorrect
legal advice since the rescission application seeks
to challenge a
judgment based on the confession to judgment, and not upon the
settlement agreement. This concession by the applicants
was as a
result of the reasons for the judgment dated 20 March 2019. This
acceptance can be accepted as an admission that there
are no
prospects of success in the rescission application set down for 10
June 2019.
[17]
Mr Aldworth submitted that the applicants’ rescission
application was based on the provisions
of rule 42(1), and that is
does not satisfy the requirements of this rule since the relevant
rule provides as follows:
‘
The court
may, in addition to any other powers it may have
mero
motu
or
upon the application of any party affected, rescind or vary:
(a)
an order or judgment
erroneously sought or erroneously granted in the absence of any party
affected thereby;
(b)
An order or judgment in which
there is an ambiguity, or a patent error or omission, but only to the
extent of such ambiguity, error
or omission;
(c)
An order or judgment granted as
the result of a mistake common to the parties.’
[18]
Mr Aldworth submitted that the applicants’ rescission
application fell
short of meeting the requirements of rule 42, since
the applicants were legally represented or in appearance at all times
when
the matter was in court when judgment was granted. Mr Nicholson
submitted that the issue of non-compliance with rule 42 was an issue
to be determined by the court hearing the rescission application. In
terms of the relief sought by the applicants, this court is
appropriate to determine the issue as rescission was one of the
issues raised.
[19]
He submitted that in order to succeed with obtaining the interim
order, the
applicants must demonstrate prospects of success with the
rescission application. This would have been so if the applicants did
not seek rescission in the current application. In any event, the
applicants conceded that they had no prospects of success with
the
rescission application set down for 10 June 2019.
[20]
Relying on
Nkata
v Firstrand Bank Ltd
2016
(4) SA 257
(CC), Mr Nicholson argued that rescission could be applied
for once the arrears have been paid, since the agreement between the
parties would be reinstated. In this regard, he submitted that the
first respondent erroneously debited an amount of R66 000
as
legal fees and once this was credited, it amounted to payment which
must be taken into account when considering payment in terms
of the
settlement agreement. Once this is done, it would be apparent that
the settlement agreement has been complied with. This
is of course
disputed by Mr Aldworth who argued that the legal costs were
erroneously debited and then credited, and that this
could not be
construed as payment in terms of a settlement agreement. I agree with
this argument, and am of the view that there
was no payment in terms
of the settlement agreement. This means that the re-instatement of
the agreement was not competent.
[21]
The applicants conceded on several occasions that they owed monies to
the first
respondent, despite raising a bare denial as a defence. It
therefore cannot be accepted that there are no monies owing in the
form
of arrears. The loan agreement can therefore not be reinstated.
[22]
The second point which was raised related to the interest which was
awarded
by the court. Mr Nicholson argued that percentage agreed to
in the settlement agreement was 7.70 per cent, while to court
awarded 10.1 per cent. He argued that this was a mistake falling
within the application of rule 42(1)(c). Mr Aldworth argued that
this
submission was flawed since the parties to the matter were the
Applicants and the first respondent and the purported mistake
would
have been made by the court. He submitted that if the
applicants were right, which was disputed, then the appropriate
cause
would have been to appeal the judgment. In view of the two interest
rates contained in the settlement agreement and the absence
of
clarification thereof before Jappie JP, it cannot be said that there
is a patent error as provided for in rule 42(1)(b). Consequently,
I
agree with the argument by Mr Aldworth.
[23]
The third point raised by the applicants is the purported failure by
the first
respondent to issue a section 129 notice letter in terms of
the NCA. Mr Nicholson argued that since the second applicant was not
under debt review, this issue should have been raised as a defence
prior to judgment in the matter. Since it was not, it does not
and
cannot fall within the operation of rule 42.
In
Ferris
& another v Firstrand Bank Ltd & another
2014 (3) BCLR 321
(CC), the court at 327 held that section 129(2)
of the NCA expressly stipulated that the requirement to send a notice
under
section 129(1) of the NCA was not applicable to debts
subject to debt-restructuring orders.
[24]
Mr Aldworth argued that even if the issue was to be considered, the
s129 notice
was not applicable in view of the debt review. He
submitted that since the applicants are married in community of
property, debt
review applied to the entire estate. In regard to
this, Mr Nicholson argued that since the joint estate was affected by
the debt
review, notice of cancellation of the debt review in terms
of s 86(10) of the NCA had to be sent to both spouses. He relied on
Subramanian v Standard Bank Limited
2012 JDR 0381 (KZP). The
court in that matter found that it was in the interest of justice for
the notice of cancellation of a
debt review affecting community of
property not only to be served on one of the spouses. Notably though,
that case is distinguishable
to the current once since in that case,
both spouses applied for debt review. Further, the applicants
own case is that the
first applicant was not placed under debt
review.
[25]
In
Ferris
,
the court held that
defective
delivery of the s 86(10) notice did not preclude the enforcement of
the loan by the bank. Section 86(10) permits a credit
provider to
terminate a debt review by giving notice at least 60 business days
after the debtor applied for debt review. While
the bank was not
entitled to rely on this section for the enforcement of the loan
because notice was not properly given, it was
independently entitled
to enforce the loan on the basis of the breach of the
debt-restructuring order.
In
any event, this issue does not fall within the application of rule
42.
[26]
With regard to the issue of primary residence, Mr Aldworth submitted
that this
issue was determined by Madondo DJP who found that the
applicants had seemingly concluded a fraudulent transaction to make
it appear
as though their son had purchased their second property. He
found that the applicants failed to show that the property sought to
be sold was their primary residence. This decision was never appealed
against, and stands, hence the issue was not raised again
when the
matter came before me for the first time on 22 March 2019.
[27]
Mr Aldworth argued that there must be finality of matters once
judgment is
granted. It was therefore not competent for the
applicants to keep coming to court even after approximately four
years to raise
new issues. He submitted that in any event, the issues
which are raised by the applicants have all been dealt with and
determined.
The applicants ought to have brought their review
application within a reasonable period and in order to succeed, show
that judgment
was based on a mistake common to both parties. The
applicants’ application did not meet these requirements. There
was therefore
no basis for interim relief.
[28]
In order to comply with the requirements for an interim relief, the
applicants
have to show a
prima facie
right, reasonable
apprehension of irreparable harm, balance of convenience and the
absence of any satisfactory remedy. On the facts
of this case, the
applicants have failed to make out a case for the interim relief
sought. It cannot be said that they have shown
any right to be
protected, since the issue regarding their right to housing has been
dealt with by this court on countless occasions.
While the applicants
may have an apprehension of irreparable harm, this is not reasonably
held since they have alternative housing
as was found by Madondo DJP.
The balance of convenience favours the first respondent who has bent
backward to accommodate the applicants
by not persisting with at
least three sale dates. Justice and fairness required that this
matter be brought to finality. The delay
caused by the applicants of
more than eight years is unreasonable. Of course if the applicants
wished to appeal the judgment of
20 March 2017, they have had more
than sufficient time to do so since they have been legally
represented at all material times
relevant thereto. The applicants
have exhausted numerous legal remedies in this matter. Their conduct
of bringing continuous rescission
applications, and applications to
stay sales in executions, borders close to an abuse of the court
process.
[29]
On
the evidence before the court and upon hearing counsel, I find that
the applicants have failed to make out a case for the relief
sought,
and that the application falls to be dismissed. Mr Aldworth submitted
that such costs be as against attorney and client.
In view of the
applicants’ conduct since 2017, I am of the view that a
punitive costs order is necessary. The applicants
have continuously
abused the court process by raising the same issues on numerous
occasions with the aim of preventing the sale
in execution. They
continue to do so despite several cost orders being made against
them. It is hoped that the current cost order
will serve as a
deterrent to them, and to bring an end this frivolous behaviour by
the applicants.
[30]
The following order is made:
The application is
dismissed with costs on the attorney and client scale.
Masipa J
DETAILS
OF THE HEARING
Matter
heard on:
23 May 2019
Judgment
delivered on:
28 May 2019
Appearance
Details
For the Applicant:
Mr WAJ Nicholson
Instructed by:
Mervin Dorasamy Inc
For the Respondent:
Mr DWD Aldwoth
Instructed by:
Shepstone &
Wylie