About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2019
>>
[2019] ZAWCHC 88
|
|
Nortje and Another v Nedbank Ltd and Others (8667/2019) [2019] ZAWCHC 88 (3 July 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
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 8667/2019
In
the matter between
GARON
KEVIN NORTJE
FIRST
APPLICANT
ROSALIND
MAGDELINE NORTJE
SECOND
APPLICANT
and
NEDBANK
LTD
FIRST
RESPONDENT
THE
SHERIFF WYNBERG SOUTH
SMITH
TABATA BUCHANAN BOYES
SECOND
RESPONDENT
RICARDO
LESLIE RYNHARDT
THIRD
RESPONDENT
TAMARA
DELPHINE RYNHARDT
FOURTH
RESPONDENT
THE
REGISTRAR OF THE DEEDS OFFICE
FIFTH
RESPONDENT
Coram:
Rogers
J
Heard
:
28 June 2019
Delivered:
3 July 2019
JUDGMENT
Rogers
J
[1]
On 28 June 2019, and after
hearing argument, I made an order dismissing, with costs, the
application for the relief set out in the
applicants’ notice of
motion dated 22 May 2019 and their amended notice of motion dated 24
June 2019. I postponed the first
respondent’s
counter-application sine die. In making the order I stated I would
give my reasons in due course. My reasons
now follow.
[2]
The application and
counter-application was set down for Tuesday 25 June 2019. They came
before Steyn J in Third Division. Because
this was an opposed matter
and because of the volume of her roll, she ordered that the matter be
heard before me in the urgent
court on Friday 28 June 2019. Only the
first and third respondents have participated actively in opposing
the application. I refer
to them collectively as the respondents. The
first respondent is Nedbank Ltd (‘Nedbank’) while the
third respondent
is a firm of attorneys, Smith Tabata Buchanan Boyes
(‘STBB’), who are dealing with the transfer of the
property pursuant
to the sale in execution.
[3]
In essence, the applicants
by way of the aforesaid notices of motion seek to prevent the
transfer of their home in Heathfield (‘the
property’)
pursuant to a sale in execution pending the final determination of an
application which they have launched (under
case 8470/2019) for an
order declaring that (a) the mortgage bond over the property is
invalid; (b) that the related loan
agreement has automatically
terminated by virtue of the non-fulfilment of a suspensive condition
requiring the registration of
a mortgage bond; (c) that all steps
taken to sell and transfer the property in execution are invalid and
have been automatically
terminated. I shall refer to case 8470/2019
as the declaratory application and to the present case – case
8667/2019 –
as the interdict application. The declaratory
application was launched on 20 May 2019 in terms of a notice of
motion which specifies
9 July 2019 as the hearing date.
[4]
The applicants have no
prospect of obtaining the relief they seek in the declaratory
application and they thus have no prima facie
right worthy of
protection in the interdict application. There are two insuperable
obstacles in their way.
[5]
The first insuperable
obstacle is that on 30 November 2017 Nedbank obtained summary
judgment against the applicants by way of an
order granted by Davis
J. In terms of that judgment the applicants were ordered to pay
Nedbank R1 201 980,82 plus interest
and costs, and the
property was declared specially executable for the said amounts. This
judgment was obtained on the strength
of the loan agreement and
mortgage bond which the applicants now seek to impugn. The applicants
applied for leave to appeal against
Davis J’s order but
applications for leave were dismissed by this court, by the Supreme
Court of Appeal and finally –
on 27 March 2019 – by the
Constitutional Court.
[6]
Davis J’s judgment
is a final order and all avenues of appeal have been exhausted.
Regardless of the validity, in the abstract,
of the mortgage bond and
loan agreement, the judgment stands as a final order by which the
applicants must pay money to Nedbank
and by which Nedbank has
authority to execute against the property in satisfaction of its
judgment. The applicants have not brought
proceedings to have the
judgment set aside and it seems to me that any such application at
this stage would be perfectly hopeless.
[7]
In any event, the validity
of the mortgage bond and loan agreement have been rendered res
judicata by Davis J’s judgment.
It matters not whether the
attack which the applicants now wish to pursue was advanced before
Davis J. The simple fact is that
he could not have granted the
judgment he did except on the basis that the loan agreement and
mortgage bond were valid. Because
validity was an essential
foundation of the judgment, such validity is thereby rendered res
judicata as fully as if the court had
formally declared the loan
agreement and bond to be valid (see
Boshoff
v Union Government
1932
TPD 345
and 350-351, quoted with approval in
Caesarstone
Sdot-Yam
Ltd v World of Marble and
Granite 2000 CC & others
2013
(6 SA 499
(SCA) paras 20-21; see also
Turk
v Turk
1954 (3) SA 971
(W);
Transalloys
(Pty) Ltd
v
Mineral-Loy (Pty) Ltd
[2017] ZASCA 95
para 26).
[8]
Even where res judicata is
not applicable, the rationale which underlies this defence may
operate to brand, as an abuse of process,
the bringing forward of
claims or defences which ought properly to have been raised in
earlier proceedings (
Janse
van Rensburg & others NNO v Steenkamp & another; Janse van
Rensburg & others NNO v Myburgh & others
2010
(1) SA 649
(SCA) paras 27-30). I have no doubt that it is an abuse of
process for the applicants at this late stage to seek to attack the
loan agreement and mortgage bond. The applicants cannot claim that
they were unaware, at the time summary judgment was granted,
of the
facts giving rise to their new attack. That attack, as shall
presently appear, is based on an alleged formal defect in the
bond.
The defect – if such it be – appeared on the face of the
bond. The bond was registered in March 2008. If the
applicants did
not at that time see the bond as registered, they would have seen it
when Nedbank’s summons was served in
2016. They could have
taken the point in the summary judgment proceedings. I may mention,
in this regard, that the first applicant
is a qualified attorney.
[9]
The second insuperable
obstacle is that, contrary to the applicants’ contention, the
mortgage bond does not suffer from a
fatal defect. The applicants’
complaint is that the name of the conveyancer who appeared before the
registrar of deeds does
not appear in the bond even though space was
provided for the insertion of that name on the first page.
[10]
I accept that the name of
the conveyancer would customarily appear on the first page of a deed
and that this is a salutary practice.
The question is, however,
whether there is a statutory provision which requires the
conveyancer’s name to appear in the bond
on pain of nullity if
it does not. I asked the first applicant in argument whether he could
direct me to any statutory provision
which lays down such a
requirement. He could not. The respondents’ counsel informed me
that he had not found any such provision
in the Deeds Registries Act
47 of 1937 (‘the Act’) or in the regulations promulgated
thereunder. He did, however, refer
me to s 50 of the Act which
is headed ‘Execution of bonds’. Sub-section (1) reads
thus:
‘
A mortgage
bond shall be executed in the presence of the registrar by the owner
of the immovable property therein described or by
a conveyancer duly
authorised by such owner by power of attorney, and shall be attested
by the registrar.’
[11]
The requirement is thus
that the bond be executed by the owner or by a duly authorised
conveyancer on behalf of the owner, not that
the name of the
authorised conveyancer be recorded in the bond. The respondents have
provided evidence that the applicants, as
owners, signed a power of
attorney authorising various conveyancers from the firm Strauss Daly,
among others Mr E D Chisholm, to
execute the bond on their behalf;
and that Mr Chisholm in fact appeared before the registrar and
executed the bond. Mr Chisholm
has confirmed under oath that he
appeared and executed the bond.
[12]
The applicants did not
file a replying affidavit contesting the evidence that Mr Chisholm
was duly authorised and appeared before
the registrar to execute the
bond. When questioned on this omission, the first applicant stated
that the filing of such an affidavit
would have been a further step
in the litigation, which would have jeopardised their rule 30
complaint that the respondents had
been guilty of various procedural
irregularities. The rule 30 complaint was without merit but I
nevertheless asked the first applicant
whether he and his wife
disputed that they had signed the power of attorney or that Mr
Chisolm had appeared before the registrar
to execute the bond. When
the first applicant conveyed that the applicants wished to deal with
this aspect, I allowed the matter
to stand down so that they could
file an affidavit. Later in the day they handed up affidavits and
argument was completed.
[13]
In their supplementary
affidavits the second applicant disputes her signature on the power
of attorney while the first applicant
expresses doubt as to his
signature. For good measure the second applicant also denies her
signature on her purported consent to
the loan agreement and bond in
terms of s 15(2) of the Matrimonial Property Act. The applicants
seemingly base these assertions
not on the ground that the signatures
do not visually match their own but on the following circumstances:
(a) that the only bond
and transfer documents they signed were signed
in Cape Town, not in Newlands (as the power of attorney and consent
record); (b) that
the consent would have been signed as part of
the loan agreement at the premises of Nedbank, yet it purports to
have been signed
at the same place and witnessed by the same persons
as the power of attorney, and the handwriting recording the date and
place
of signature on both documents appears to be the same; (c) that
they do not know the persons who signed as witnesses. All of this,
they say, ‘strengthens our argument that there was fraud
involved with the signing of these documents’.
[14]
I do not consider that
these affidavits raise genuine dispute of fact. The applicants do not
deny that they sought a loan from Nedbank
in order to buy the
property and that a mortgage bond was a condition precedent to
obtaining the loan. In accordance with usual
conveyancing practice,
they would have had to sign a power of attorney and the second
applicant would have needed to sign a consent.
Since they wanted the
loan and were agreeable to the registration of a bond, they would
have been happy to sign the necessary power
of attorney and consent.
The conveyancers attending to the registration of the bond had no
reason not to call upon them to do so.
[15]
The signatures of both
applicants on the power of attorney purport to have been witnessed by
Ms
D D Kemp
of
Strauss Daly whose certificate of preparation as conveyancer is
affixed to the power of attorney and mortgage bond. She was also
one
of the conveyancers named in the power of attorney. The other
witness, Mr M C Tucker, was also a professional employee of Strauss
Daly. The address recorded for these witnesses is the Newlands office
of that firm. To judge by the handwriting, it was Mr Tucker
who
inserted the place and date of signature. It is common practice for
clients to sign conveyancing documents at the offices of
the
responsible firm. Ms Kemp and Mr Tucker had no incentive to forge the
applicants’ signatures or to act as a false witness
or to
falsely record the place and date of signature.
[16]
On the applicants’
own admission they signed transfer and bond documents though they say
this was in Cape Town rather than
Newlands. The ‘bond
documents’ would in the ordinary course have included a power
of attorney. They do not explain
how they can remember precisely
where they signed these documents 12 years ago. They also do not say
at whose office in Cape Town
they signed the documents.
[17]
To the applicants’
knowledge the loan was granted, the property transferred and the
mortgage bond registered. For more than
ten years this state of
affairs prevailed without complaint and they made frequent bond
payments to Nedbank. Even when they belatedly
attacked the bond,
their case was not that its registration was unauthorised but that it
was formally defective. Their conduct
in contesting Davis J’s
judgment all the way to the Constitutional Court, and the timing of
various applications lodged by
them (including very late applications
for leave to appeal and certain other urgent applications which I
have not found it necessary
to detail), manifest a concerted and
sustained endeavour to delay the implementation of this court’s
judgment and to remain
in occupation despite the fact that they have
paid only a fraction of the instalments due since September 2015.
According to the
respondents, the arrears (disregarding the
acceleration and judgment granted by Davis J) amount to R546 425.
[18]
The applicants have not,
in their latest affidavits, disputed that Mr Chisholm appeared before
the registrar and executed the bond.
I would not expect them to be in
a position to deny it. I simply record that the registrar would not
have attested the bond if
a conveyancer had not appeared before him
to execute it, and that ex facie the last page of the bond it was
signed by the registrar
and by a conveyancer who signature is the
same as the signature on Mr Chisholm’s affidavit in the present
proceedings.
[19]
I thus have no hesitation
in rejecting, as far-fetched and untenable, the applicants’
assertion that they did not sign the
power of attorney. In any event,
their subsequent conduct over more than ten years shows that they
authorised or at least ratified
the registration of the bond.
[20]
To return to the supposed
defect in the mortgage bond. Even if the omission of the
conveyancer’s name were a defect in the
bond, s 100 of the
Act provides as follows in respect of ‘formal defects’:
‘
No act in
connection with any registration in a deeds registry shall be
invalidated by any formal defect, whether such defect occurs
in any
deed passed or registered, or in any document upon the authority of
which any such deed has been passed or registered or
which is
required to be produced in connection with the passing or
registration of such deed, unless a substantial injustice has
by such
act been done which in the opinion of the court cannot be remedied by
any order of the court.’
[21]
The applicants submitted
that a ‘mortgage bond’, a defined term in the Act, is not
a ‘deed’ for purposes
of s 100. This contention is
without merit. The word ‘deed’ is not defined. In this
setting it means a legal document
executed by the person or persons
whose position the terms in the document affect. The Act refers to
many types of deeds –
deeds of transfer, of cession, of grant,
deeds creating servitudes and so forth. The word may also apply to
documents which are
not capable of registration, as for example a
deed of sale. The fact that ‘mortgage bond’ is defined in
the Act does
not mean that it is not a ‘deed’. A mortgage
bond falls within the ordinary meaning of that word.
[22]
There is both legislative
and judicial support for this meaning. Section 6(1) of the Act refers
inter alia to a ‘deed conferring
. . . any real
right in land other than a mortgage bond’. The exclusion of
mortgage bonds from the scope of that
particular section would have
been unnecessary if a mortgage bond were not a ‘deed’.
Regulation 29 of the regulations
promulgated under the Act refers to
‘land . . . hypothecated in a deed of bond’.
The former Appellate Division
described one of the functions of a
mortgage bond as being a ‘deed of hypothecation’
(
Thienhaus
NO v Metje & Ziegler Ltd & another
1965
(3) SA 25
(A) at 32B-D; see also
Reeskens
v Registrar of Deeds
1964
(4) SA 369
(N) at 372B-C;
Nedcor
Bank Ltd v Kindo & another
[20
02]
ZAWCHC 10
p 5). There is also no conceivable reason why the
lawmaker would have wished to exclude mortgage bonds from the scope
of s 100.
[23]
Finally, it is necessary
to deal with para 72 of the respondents’ opposing affidavit,
because the applicants placed great
store on it in argument. In para
10.13 of his founding affidavit the first applicant referred to an
email he had sent to STBB on
21 May 2019 seeking an undertaking that
the firm would not re-lodge the transfer documents (they had been
rejected on technical
grounds earlier that day) pending a
determination of the applicants’ declaratory application. After
referring to the fact
that transfer is usually affected within five
to seven working days of lodging, the first applicant said that the
absence of a
response to his email was a clear indication that STBB
intended to re-lodged the papers. The answering affidavit, deposed to
on
11 June 2019, was made by STBB’s Mr T M C Chase. In answer
to the allegations I have just summarised, he said the following
in
para 72 (my underlining) :
‘
After the
lodging of the transfer at the Deeds Office was rejected, and after
this application was launched, I took the view that,
out of an
abundance of caution, it would be prudent to halt further steps to
transfer the property until this application
and
the main application
were heard.’
[24]
The ‘main
application’ in the above passage is the declaratory
application set down for 9 July 2019. The applicants
argued that Mr
Chase had effectively given an undertaking that the respondents would
not proceed with transfer until the declaratory
application was
decided; and that for this reason the interdict application and the
counter-application should be removed from
the roll and the
undertaking enforced.
[25]
The quoted passage from Mr
Chase’s affidavit cannot be construed as an undertaking. At
most it is an explanation as to why,
in the days immediately
following 21 May 2019, his firm refrained from re-lodging the
transfer documents. By the time the answering
papers were filed,
however, the respondents had quite clearly come to the view that
there should be no delay and that the applicants’
declaratory
and interdict applications were completely without merit. The passage
in question comes from an affidavit in which
the respondents were
opposing the interdict application and asking for it to be dismissed.
The interdict application was enrolled
for hearing on 25 June 2019
and that is when the respondents intended to argue that it should be
dismissed. Mr Chase’s affidavit
was also the founding affidavit
in the respondents’ counter-application. They wanted the
counter-application heard simultaneously
with the interdict
application on 25 June 2019. The relief they sought in the
counter-application showed beyond doubt that they
had no intention of
allowing any delay in transfer beyond that date.
[26]
In context, therefore, Mr
Chase could not have intended, when he made his affidavit, that
everything should be held over until the
declaratory application was
determined. At the earliest that would have happened on 9 July 2019
though whether it would in fact
be heard on that day would depend on
whether the applicants could persuade the duty judge to hear the
declaratory application during
recess.
_____________
Judge
O L Rogers
APPEARANCES
For
applicants
In
person
[…]
Road
Heathfield
For
first and third respondents
Mr
D van Reenen (with him Ms N van Zyl)
Instructed
by
Smith
Tabata Buchanan Boyes, Claremont
c/o
Smith Tabata Buchanan Boyes
8
th
Floor, 5 St Georges Mall
Cape
Town