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[2018] ZAGPPHC 384
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Standard Bank of South Africa Ltd v Msibi and Another (43315/16) [2018] ZAGPPHC 384; [2019] 4 All SA 343 (GP); 2020 (1) SA 90 (GP) (16 February 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NO.: 43315/16
16/2/2018
In
the matter between:
STANDARD
BANK OF SOUTH AFRICA LTD
Applicant/Plaintiff
versus
SPHIWE
JOHANE
MSIBI
1
st
Respondent/Defendant
BOENA
VICTORIA
MSIBI
2
nd
Respondent/Defendant
JUDGMENT
MPHAHLELE
J
[1]
This is an application for summary
judgment against the respondents, for the respondents' breach of a
written home loan agreement,
as the respondents defaulted with
minimum monthly instalments.
[2]
On or about 16 February 2007, the
applicant and the respondents entered into a written home loan
agreement. The debt was secured
by a covering mortgage bond
registered in favour of the plaintiff on 29 March 2007 for the sum of
R67 200-00 and an additional
sum of R16 800 -00. The mortgage bond
was registered in favour of the applicant is a continuing covering
security for all and any
sum or sums of money which may then or in
the future be owing or claimable by the applicant from the
respondents from any cause
of whatsoever nature. The applicant
hypothecating erf 1043 Ezamokuhle Extension ltownship, registration
division: H.S., Mpumalanga
Province measuring: 288 (two hundred and
eighty eight) square metres held by deed of transfer no.:
Tl5075/19997 subject to the
conditions therein contained ("the
property").
[3]
the applicant state that the express,
alternatively implied, further alternatively tacit terms of the home
loan agreement are as
follows:
3.1
The parties agreed that the loan amount
would be repaid by the respondents to the applicant in 240 monthly
instalments in the amount
of R914- 74, to be adjusted by the
plaintiff in the event of variation of its annual finance charge
provided it does not exceed
the legal maximum permissible rate.
3.2
The parties further agreed that an event
of default would occur in the event of the respondents failing to
make payments of any
instalment due in terms of the loan agreement
and/or breach any of the terms and conditions of the loan agreement
or any other
agreement between the parties. Upon an event of default
and/or breach of any of the term and conditions of the loan agreement
or
any other agreement between the parties, the applicant would be
entitled, at its election and without prejudice to any other remedies
which may have to:
terminate
the loan and claim immediate repayment of the outstanding balance by
giving notice to the defendant; and
institute
legal proceedings for the recovery thereof and for an order declaring
the immovable property executable.
[4]
The respondents allegedly failed and/or neglected to maintain the
instalments agreed
in terms of the home loan agreement and the
mortgage bond and the applicant contend that, as in terms of the
agreements between
the parties, the full amount outstanding has
accordingly become due and payable.
[5]
In the opposing affidavit, the respondents raised the issue that this
court has no
jurisdiction to entertain this matter as the respondents
as well as the property to be executed are situated in the area of
Amersfoot
in the province of Mpumalanga.
[6]
On 15 January 2016, the Minister of Justice and Correctional Services
determined the
areas of jurisdiction of the Gauteng Division of the
High Court, with effect from 25 January 2016 .
[7]
Section 7(1) of the Superior Courts Act 10 of 2013 (the Act) provides
that the Judge
President of a provincial division may by notice in
the Gazette divide the area under the jurisdiction of that division
into circuit
districts, and may from time to time by like notice
alter the boundaries of any such district.
[8]
Currently the Mpumalanga Province falls
under the jurisdiction of the Gauteng Division functioning as
Mpumalanga Division . On 29
January 2016, the Judge President of the
Gauteng Division (the Judge President), acting in terms of section
7(1) of the Act, issued
a notice establishing the Mbombela and
Middelburg Civil Circuit Courts in the Mpumalanga Province.
[9]
Section 173 of the Constitution provides
that the Constitutional Court, Supreme Court of Appeal and High Court
have the inherent
power to protect and regulate their own process,
and develop the common law, taking into account the interest of
justice.
[10]
Clause 2.1 of the Practice Directive
provides that: "All action and motion proceedings including
urgent applications in any
area in the Mpumalanga province shall,
with effect from 1 February 2016, be issued through designated
officials and at the offices
situated at the Mbombela and Middelburg
courts specified in clause 4 below which shall operate as the
Registrar's office of the
circuit court"
[11]
By issuing the practice directive in terms of the powers vested in
him by section 173 of the
Constitution and Sect ion 7(1) of the
Superior Courts Act, the
Judge President effectively established the
areas of jurisdiction of the Mbombela and Middelburg Circuit Courts,
until further
notice. Importantly, the directive stipulates that
"All
action and motion proceedings including urgent applications in any
area in the Mpumalanga province shall, with effect
from 1 February
2016, be issued through designated officials and at the offices
situated at the Mbombela and Middelburg
courts
..... "
The wording of the directive is clear. There is no suggestion that
the Judge President acted outside his powers. In
the circumstances,
the Practice Directive must be adhered to.
[12]
Therefore this court has no jurisdiction
to hear the matter.
[13]
In the result, the point in
limine
is allowed with costs.
S
S MPHAHLELE
JUDGE
OF THE HIGH COURT,
PRETORIA
FOR
THE APPLICANT: A P Ellis
INSTRUCTED
BY: Struass Daly Inc.
FOR
THE RESPONDENTS: AM Smit
INSTRUCTED
BY: LK Joubert Attorneys