About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 834
|
|
Bezuidenhout v Standard Bank of South Africa Limited (76288/2012) [2018] ZAGPPHC 834 (28 February 2018)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
CASE
NO: 76288 /2012
In
the matter between:
P.O.
BEZUIDENHOUT
Applicant
and
STANDARD
BANK OF SOUTH AFRICA LIMITED
Respondent
JUDGMENT
1.
This
is an application brought on an urgent basis for an order to stay a
sale in execution of certain immovable property in Menlo
Park,
Pretoria, scheduled to be held at 10:00 today, 28 February 2018. The
application was served on the respondent yesterday morning
at 9:15
and set down for hearing yesterday afternoon at 15:00. The
application is for the aforesaid stay of the sale pending the
finalisation of the application instituted by the applicant for the
rescission of a judgement granted against the applicant on
4 March
2014 by Mali J.
2.
The respondent filed a comprehensive and
rather voluminous answering affidavit and it was indicated on behalf
of the applicant that
he does not want to file a replying affidavit
and wanted to argue the matter on the papers before the court. The
matter was argued
on behalf of the parties until well after hours
yesterday and due to the urgency of the matter I shall not refer to
all the facts
and all the arguments put up and raised before me but
merely to the salient features thereof. Most of the facts were, in
any event,
common cause between the parties and the issues for
decision by this court eventually turned out to be rather crisp.
3.
Briefly, the relevant history leading up
to the present application is the following. On 12 January 2011 the
respondent instituted
an application ("the main application")
against the applicant by serving the application on him personally.
The claim
was for payment of the amount of R 1 244 965, 60 which was
due to the respondent as the outstanding amount in respect of a home
loan agreement in terms of which the applicant had fallen into
arrears. The loan was secured by the registration of three mortgage
bonds over the aforesaid property of the applicant and the plaintiff
accordingly also prayed for an order that the property be
declared
specially executable.
4.
The applicant opposed the application
and filed an answering affidavit to which the respondent filed a
replying affidavit. The matter
was argued in full by the legal
representatives on behalf of the parties and Mali J gave judgement on
4 March 2014. The court rejected
all the defences of the applicant
and granted judgement in favour of the respondent including declaring
the property specially
executable.
5.
The applicant applied for leave to
appeal on 28 March 2014. The applicant took no steps to have the
application heard and the respondent
eventually applied for a date
for the hearing and had the record typed. The application for leave
to appeal was set down for hearing
on 25 June 2015.
6.
On 24 June 2015, the day before the
hearing of the application for leave to appeal, the applicant brought
an application for rescission
of the judgement. On 25 June 2015 the
applicant attempted to withdraw his application for leave to appeal.
Mali J refused this
attempt and dismissed the application for leave
to appeal with costs.
7.
The aforesaid 2015 rescission
application remained pending and the applicant took no steps
whatsoever to take the matter forward.
The respondent submitted that
this was done in order to delay the execution of the judgement.
8.
The respondent opposed the 2015
rescission application by delivering its answering affidavit on 14
October 2015. The applicant failed
to file a replying affidavit or to
set the matter down and it was left to the respondent to prepare and
enrol the matter for hearing
on the opposed role.
9.
The 2015 rescission application was set
down for hearing on 16 May 2016. However, immediately prior to the
application being heard
on 16 May 2016, the applicant withdrew the
2015 rescission application. The institution of this 2015 rescission
application delayed
the execution of the order in favour of the
respondent for approximately one year.
10.
Thereafter, on 16 August 2016, the
applicant petitioned the Supreme Court of Appeal for leave to appeal
the judgement of Mali J.
This application for leave to appeal came
some two and a half years after the date of the judgement and some
four months after
the withdrawal of the 2015 rescission application.
In the application to the Supreme Court of Appeal the applicant asked
for leave
to appeal "against the whole of the judgement and
order" of Mali J delivered 6 March 2014.
11.
In his affidavit supporting the
application for leave to appeal the applicant submitted that Mali J
erred in certain respects in
regard to his application for leave to
appeal as well as the judgement delivered in the main application.
None of these grounds,
however, referred to the order of Mali J that
his property be declared specially executable although the applicant
did submit that
he was severely prejudiced as a result of the orders
handed down by the court in that the aforesaid property that had been
declared
specially executable was his home and primary place of
residence, which stood to be sold in execution. He submitted that his
property
was valued for approximately R 2 500 000, 00 which was well
over the judgement amount granted against him and that he would
suffer
severe financial loss if the property were to be sold on
auction.
12.
It was submitted on behalf of the
respondent in the present application that it is to be noted that the
applicant's affidavit in
the present rescission application has for
the most part been adopted word for word from the application to the
Supreme Court of
Appeal for leave to appeal.
13.
When the respondent's attorneys of
record attempted to file their notice of substitution as attorneys of
record with the Registrar
of the Supreme Court of Appeal, they
established that the application for leave to appeal had not actually
been lodged with the
Supreme Court of Appeal. The respondent's
attorneys wrote to the applicant's attorneys in this regard on a
number of occasions
but no response was forthcoming. As a result, the
respondent, in the absence of the applicant lodging the application
for leave
to appeal with the Supreme Court of Appeal, lodged such
application together with its opposing affidavit. That occurred on 19
December
2016.
14.
In the opposing affidavit, the
respondent detailed the applicant's dilatory conduct in the
proceedings to date and also set out
why none of the grounds of
appeal raised by the applicant, in their view, had any merit.
15.
On 30 January 2017 the Supreme Court of
Appeal dismissed the application for leave to appeal with costs "on
the grounds that
there is no reasonable prospect of success on appeal
and there is no other compelling reason why an appeal should be
heard."
16.
Some six weeks later, on 14 March
2017 the appellant lodged an application for leave to appeal to the
Constitutional Court. This
application was founded on one composite
ground namely that the applicant's right to a fair trial had been
infringed by the court
a
quo.
17.
The respondent filed an opposing
affidavit to the Constitutional Court application for leave to appeal
and again set out the applicant's
history of delaying and attempting
to stave off execution of the judgement and also gave reasons why the
applicant's application
for leave to appeal was ill founded.
18.
On 2 May 2017 the Constitutional Court
dismissed the application for leave to appeal on the basis that "it
bears no prospects
of success".
19.
On 21 August 2017 the applicant launched
his next application for rescission of the judgement of Mali J. The
respondent submitted
that this application was simply a tactic by the
applicant to delay the execution of the judgement against him even
further and
that it was brought solely in an attempt to forestall the
sale in execution of the property. The applicant submitted that when
the application for rescission was dismissed, as it would be, the
applicant would simply go through the entire appeal process again
in
an attempt to delay execution for another two or three years.
20.
Despite anticipating that the applicant
would not proceed to enrol the application but wait for the
respondent to arrange a sale
in execution simply to frustrate such a
sale on the basis of the application for rescission, the respondent
decided to proceed
with the sale in execution.
21.
In
the interim, and prior to delivery of the respondent's answering
affidavit, the applicant on 27 October 2017 delivered a notice
of
removal of the application for rescission from the unopposed roll. On
9 February 2018, the respondent received a Jetter from
the
applicant's attorneys threatening the respondent with an urgent
application should they proceed with the sale in execution
scheduled
for 28 February 2018. In the letter the respondent was requested to
deliver its answering affidavit to the rescission
application by 16
February 2018.
22.
On 16 February 2018, the respondent
informed the applicant's attorney that the sale in execution would
not be cancelled and any
attempt to halt the sale in execution by way
of an urgent application, would be opposed. On the same day the
respondent's answering
affidavit was e-mailed to the applicant's
attorneys.
23.
The applicant's attorneys denied that
they received the letter of 16 February 2018 and the letter was
eventually re-sent by the
respondent's attorneys.
24.
The respondent submitted that the fact
that the applicant took no steps to progress the urgent application
until shortly before
the date of the sale in execution, and
thereafter to attempt to rely on the present rescission application
to seek the cancellation
of the sale in execution, again fits in with
the applicant's
modus operandi
of
delay and illustrates that the applicant has no real belief·in
the 2017 application for rescission, save as a procedural
mechanism
to circumvent execution of the judgement.
25.
The respondent referred to the fact that
the applicant is currently almost 9 years in arrears with his
repayments to the respondent
which had grown to a total outstanding
debt of R 2 301 670, 57. Furthermore that the respondent commenced
proceedings against the
applicant seven years ago and obtained
judgement against him four years ago.
26.
The respondent submitted that the
applicant has in the present application for rescission simply
recycled the grounds of appeal
submitted in his applications for
leave to appeal to the Supreme Court of Appeal as well as the
Constitutional Court into a new
rescission application, in an attempt
to restart the entire process. It was submitted that there is no
merit in the applicant's
current rescission application or the
present urgent application and that same constitutes another dilatory
tactic on the part
of the applicant to retain ownership and remain in
occupation of the property without paying therefore.
27.
The respondent further dealt with each
and every ground offered by the applicant in the 2017 rescission
application and showed that
such grounds in fact formed part of his
applications for leave to appeal to the Supreme Court of Appeal and
the Constitutional
Court, which had both been dismissed by those
courts.
28.
I do not propose to deal with the delay
in bringing the urgent application on the eve of the sale in
execution and will rather deal
with the merits of the application
itself.
29.
At the hearing of this application it
was submitted by Attorney Perrel, on behalf of the applicant that the
applicant has a right
to prosecute his rescission application and
that, for purposes of the present application for the stay of the
sale in execution,
the merits of the rescission application are
irrelevant, that this court cannot decide the merits of that
application and that
the court who eventually hears that application,
would do so. She further submitted that the applicant stands to
suffer an injustice
if he were to be evicted from his home and that
in such event he would suffer irreparable harm.
30.
It was conceded on behalf of the
applicant that the rescission application, as well as the present
application for a stay, must,
however, be
bona
fide
applications. It is
clear that this must be so for, if it is not, such applications would
constitute an abuse of this
court's process as it would simply be
aimed at attempting to delay the execution of this court's judgement
further.
31.
On behalf of the respondent Advocate
Groenewald referred me,
inter alia,
to the discussion in Erasmus,
Superior Court Practice, of Rule 45A where reference is made to the
inherent discretion
of a court to order a stay of a sale in
execution, which discretion must be exercised judicially but which is
not otherwise limited.
It is furthermore stated that as a general
rule the court will grant a stay of execution where real and
substantial justice requires
such a stay or, put otherwise, where
injustice will otherwise be done.
32.
The author furthermore referred to the
fact that it has been held that in particular circumstances the court
could, in the determination
of the factors to be taken into account
in the exercise of its discretion, borrow from the requirements for
the granting of an
interlocutory interdict namely that the applicant
must show that the right which is the subject of the main action and
which he
seeks to protect by reason of the interim relief is clear
or, if not clear, is
prima facie
established though open to some
doubt; that if the right is only
prima
facie
established, there is a well
grounded apprehension of irreparable harm to the applicant if the
interim relief is not granted and
he ultimately succeeds in the
establishment of his rights; that the balance of convenience favours
the granting of interim relief;
and that the applicant has no other
satisfactory remedy. The authorities referred to by the learned
author support the aforesaid
statements of our law.
33.
Although it has been stated in the
authorities that the court is not concerned with the merits of the
underlying dispute and that
the sole enquiry is simply whether the
causa
is
in dispute, I regard this as a general proposition
ceteris
paribus
and not one which would
prevent a court from exercising its discretion against
ordering a stay of execution if there
is no valid underlying
causa
or if the applicant had failed to
show a
prima facie
right
which would justify the subsequent rescission of the existing order
of court. It is consequently necessary to analyse the
validity or
otherwise of the application for rescission for this purpose.
34.
It was stated on behalf of the applicant
that the applicant relies for his application for rescission on the
provisions of Uniform
Rule of Court 42. Rule 42 provides as follows:
42
Variation and Rescission of Orders
(1)
The court may, in addition to any other
powers it may have, mere 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.
(2)
Any party desiring any relief under this
rule shall make application therefor upon notice to all parties whose
interests may be
affected by any variation sought.
(3)
The court shall not make any order
rescindingor varying any order or judgment unless satisfied that all
parties whose interests
may be affected have notice of the order
proposed."
35.
In paragraph 5 of the applicant's
affidavit in support of his application for rescission the following
is stated:
"This
of course is a judgment that was erroneously sought and granted in
the absence of any evidence so lead/reduced to justify
the relief."
36.
This is a clear indication that the
applicant relies on Rule 42 (1) (a) for his application for
rescission. When Me Perre! was reminded
that the judgement and order
were not sought or granted in the absence of the applicant, she
submitted that in reality the applicant
relies on Rule 42 (1) (b) for
the reason that the order was granted in error because there were no
facts before the court a
quo
on
the basis of which the court could have granted the prayer declaring
the property specially executable.
37.
It was submitted that the applicant had
failed to place any evidence before the court which would have
enabled the court to make
an order in respect of the issue of
executability. It was submitted in particular that the respondent
failed to place evidence
before the court that the property was the
applicant's primary residence. I disagree with the submission for a
number of reasons.
38.
The main application came before the
court a
quo
as
an opposed motion and the evidence before the court upon which it had
to adjudicate the matter, was contained in all the affidavits,
including the answering affidavit. In the answering affidavit the
applicant stated that the property was the primary residence
of him
and his family and that he would be deprived of his fundamental right
to adequate housing should the property be sold in
execution.
The court a
quo
was
thus fully entitled to consider this evidence.
39.
Furthermore, in response to the
aforesaid, the respondent stated in its replying affidavit that in
the event of the respondent wishing
to rely upon his constitutional
right to adequate housing it is incumbent upon him to place the
information relevant thereto before
the court. The respondent
furthermore stated that in that paragraph the applicant merely stated
that he and his family will be
denied their fundamental right to
adequate housing, but, however, failed to set out any foundational
basis for that statement.
40.
The applicant did not accept this
invitation to place further facts before the court. In fact, in none
of the documents in any of
the proceedings before the different
courts, had the applicant ever taken the point that the respondent
had failed to place sufficient
information before the court in order
for it to declare the property specially executable and that the
court had consequently,
for that reason, erred in making that order.
41.
Another, and more basic reason, why the
applicant cannot succeed with an application for rescission in terms
of Rule 42 (1) (b)
is that the "patent error" referred to
in the Rule can never refer to a situation where, such as was
submitted on behalf
of the applicant, the court did not have
sufficient facts before it to have come to a particular conclusion
and order. The "patent
error" referred to in the Rule is an
error as a result of which the judgement granted does not reflect the
real intention
of the Judge pronouncing it. In other words, the order
does not express the intention of the Judge. And such an order may
then
only be varied to the extent of such ambiguity, error or
omission.
42.
The applicant's case namely that there
was not sufficient evidence before the court a
quo
to have declared the property
specially executable, can therefore never be entertained in terms of
Rule 42 (1) (b).
43.
Despite what had been argued on behalf
of the applicant in the application before this court it seems that
the applicant himself
had earlier accepted the aforesaid as a correct
interpretation of Rule 42 (1) (b). In his application for leave to
appeal to the
Constitutional Court the applicant stated in his
affidavit in relation to his first rescission application
instituted
in 2015, the following:
"5.31
I duly accepted my Attorney of Record's advice that I had followed
the incorrect legal procedure in overturning the Judgement
of the
Honourable Acting Justice Mali dated 6 March 2014, and therefore
withdrew my Application for Rescission of the
Judgement
on his advice."
44.
The present about-face by the applicant
has not been explained.
45.
There is yet a further reason why the
applicant cannot succeed in rescinding the order of Mali J in terms
of rule 42 or any other
Rule of Court or the common law. It was
submitted on behalf of the applicant, as I have indicated before,
that the order of Mali
J falls to be set aside for the reason that
there was not sufficient evidence before the court to have declared
the property specially
executable. On any interpretation that would
mean that the court had made a wrong factual finding which would, if
found to be correct,
make the judgement and order susceptible to an
appeal and not a rescission in terms of Rule 42.
46.
I now turn to the main argument on
behalf of the respondent namely that after the applicant had followed
the appeal process, which
culminated in the dismissal of his
application for leave to appeal to the Supreme Court of Appeal, and
for that matter the application
for leave to appeal to the
Constitutional Court, the matter was at an end and the applicant is
not entitled to reopen the matter
by way of a new process directed at
the rescission of the order appealed against.
47.
I agree with the argument on behalf the
respondent. The applicant had applied to the Supreme Court of Appeal
for leave to appeal
against the whole of the judgement and order of
Mali J. It does not matter, in my view, whether the applicant had
included as one
of his grounds of appeal the fact that, in his
submission, Mali J had erred in declaring the property specially
executable. If
such had not been relied upon as one of the grounds of
appeal it would be regarded as having been abandoned by the
applicant. Cf
Bredenkamp v Du Toit
1924 GWLD 15
at 19; Hardenberg And
Another V Nedbank Ltd
2015 (3) SA 470
(WCC) at p478A.
48.
The fact remains that the applicant
applied for leave to appeal against the order and judgement of Mali
J, which included the declaration
of the property to be specially
executable. The moment the Supreme Court of Appeal refused leave to
appeal, that was the end of
the matter and it is not open for the
applicant to reopen his attack on the judgement and order of the
court a
quo
by
means of a process in terms of Rule 42 or any other process. Any
process initiated by the applicant is met by the principle of
res
iudicata
and issue estoppel and the
principle of finality.
49.
In the result I find that the applicant
had failed to show that he has a
prima
facie
right to apply for the
rescission of the judgement and order of Mali J. On the evidence
before this court it is abundantly clear
that the applicant is still
on his quest to frustrate and delay the efforts of the respondent to
execute on its judgement. The
application for rescission is not a
bona fide
application
and neither is the present application to stay the execution of the
order of Mali J.
50.
In the circumstances I exercise my
discretion against the granting of the order as prayed for by the
applicant.
51.
As far as costs are concerned it was
submitted on behalf of the respondent that an order for costs should
be made against the applicant
on a punitive scale and that an order
for costs should also be made against the attorney of record of the
applicant
de bonis propriis.
52.
I am satisfied that a punitive order for
costs should be made against the applicant for it is clear, as I have
mentioned above,
that his application was not
bona
fide
but an abuse of the Rules of
this court in the furtherance of his attempts to frustrate the
respondent in its efforts to execute
an order validly obtained from
this court.
53.
As far as an order for costs against the
applicant's attorney is concerned many questions have been raised on
behalf of the respondent
but in my view there is not sufficient
evidence before this court which would merit such an order.
54.
In the result, the following order is
made:
1.
The application is dismissed.
2.
The applicant is ordered to pay the
costs of the respondent on the scale as between attorney and client.
C.P.
RABIE
JUDGE
OF THE HIGH COURT