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[2018] ZAGPPHC 769
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Masenya and Others v Nedbank Limited and Others (89054/2014) [2018] ZAGPPHC 769 (16 March 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
CASE NO: 89054/2014
16/3/2018
In the
matter between:
Manoko
Engelina
Masenya
First Applicant
Pheega Andrew Madiga NO
(in his
capacity as the executor of the late
Maisha
Joseph
Madiga)
Second Applicant
Phillip
Nkhure Madiga NO
(in his
capacity as the executor of the late
Maisha
Joseph
Madiga)
Third Applicant
and
Nedbank Limited
(formerly
known as Nedcor Bank
Limited)
First Respondent
Master
of the High Court
Polokwane
Second
Respondent
Thomas Grobler
Attorneys
Third
Respondent
JUDGMENT
MIA,
AJ
[1] The first
applicant, Engelina Masenya Manoko, is an executrix in the estate
of
the late Maisha Joseph Madiga (deceased) who died on 18 July 2012.
The second and third applicants are co-executors in the estate
of the
late Maisha Joseph Madiga. The first applicant seeks various orders
related to the property situated at 4 Earth Street,
Polokwane,
Limpopo Street, Limpopo Province namely:
1. Condoning the late filing
of this application;
2. That the First Respondent
be directed to stay the transfer of the immovable property
known as
Erf 10787 Extension 61 Township, Polokwane also known as 4 Earth
Street, Polokwane, Limpopo Street, Limpopo Province,
pending the
finalisation of the estate of the late Maisha Joseph Madiga;
3. That judgment granted in favour
of the First Respondent against the executors of the aforementioned
estate of Maisha Joseph Madiga be rescinded and set-aside;
4. That the execution processes
declaring Erf 10787 Polokwane Extension 61 Township, Registration
Division LS, Province of Limpopo measuring 433(four hundred and
thirty three) square metres held by Deed of Transfer T70005/08
be
stayed until the final liquidation and distribution account is filed
with the Second Respondent;
5. That the Second
Respondent be ordered to avail any documents which are in its control
and possession to the applicants with immediate effect;
6. That the Third Respondent be
directed to furnish written reasons as to why did it fail to
file the
liquidation and distribution account as ordered by the court under
case number 89054/2012 , Estate number 794/2012 on
behalf of the
applicants with immediate effect;
7. That the mortgagee be
ordered to make available the balance of the mortgage bond
872668/2008
with immediate effect.
8. That any party who
opposes this application be ordered to pay the costs of this
application
at an attorney and own client scale.
[2] The matter was set
down by the first respondent who sought to have the application
dismissed with costs to enable it to proceed to have the property
transferred into its name. The applicants were not present when
the
matter was argued despite a notice of set down having been served on
Zamisha Shisinga Attorneys who were the last attorneys
on record
[1]
.
Mr Du Plessis, Counsel for the first respondent informed this court
that Zamisha Shisinga Attorneys withdrew as the attorney of
record on
19 February 2018. There is no record thereof on the court file. I
expressed my reservations about the applicants being
aware that the
matter was on the roll. Mr Du Plessis submitted that it was trite
that in such circumstances, Zamisha Shisinga Attorneys
would in the
normal course have informed their clients of their withdrawal at such
a late stage prior to their withdrawal and informed
them of the date
of the hearing.
[3] I noted further
that the applicants' at the outset served the notice of motion
on the
first respondent and not on the second and third respondents. The
first respondent also did not serve the notice of set
down on either
the second and third respondents. Mr Du Plessis submitted however
that the matter was properly set down between
the applicants and the
first respondent as early as 1 November 2017. He highlighted further
that the court has been ceased with
this matter for five years where
relief has been sought in respect of the immovable property. The
applicants had been dilatory
in the extreme herein.
[4] In considering the
dispute it is useful to understand the background to the
application.
The first applicant was married to the deceased in community of
property. The second and third applicants were born
during the
subsistence of the marriage.
[5] During the
marriage an amount of R430 251 was advanced to the first applicant
and deceased under security of a mortgage bond over certain immovable
property known as erf 3844 Zone 2, Seshego, Polokwane. The
parties
failed to meet their obligations under the bond: Default judgment was
granted by the Registrar on 29 January 2010. The
property was
declared executable by the registrar of the court on 29 January 2010
and a warrant of attachment issued. In the interim
the parties
marriage was dissolved on 12 August 2009. In terms of the decree of
divorce the joint estate was to be divided equally.
This did not
occur. The bank entered into a distressed restructure agreement in
respect of the home loan on 17 June 2010 with both
parties.
[6] Upon the death of
Mr Madiga in 2012, the Master of the High Court issued letters
of
authority instead of letters of executorship. The first applicant
appointed the third respondent to wind up the estate and to
file the
liquidation and distribution account after receiving requests for
same. The joint estate was not divided after the decree
of divorce,
and the liquidation and distribution account of the deceased, Mr
Madiga was not lodged. The winding up of the estate
of deceased
remains unfinalised.
[7] The first
applicant had given instruction initially to Thomas Grobler attorneys
and later to Zamisha Shingisa attorneys to wind up the estate and
lodge the liquidation and distribution account. Neither firm
of
attorneys have managed to attend to same. Whilst the first applicant
seeks relief that the third respondent explain why this
has not
occurred, it appears that the papers were not served on the second
and third respondent either by the first applicant nor
was the notice
of set down filed on the second and third respondent. No relief is
competent in this respect consequently.
[8] Mr Du Plessis'
submission was that the deceased's estate be finally wound up.
The
first respondent had granted many indulgences to the applicants . A
liquidation and distribution account has not been filed
by the
applicants' attorneys Thomas Grabler Attorneys or Zamisha Shisinga
Attorneys. The first applicant raised aspects in her
affidavit such
as her lack of knowledge of the law and being furnished with
inadequate information, however despite receiving numerous
requests
from Hack Stupel & Ross Attorneys, the first respondent's
attorneys she failed to attend to winding up the deceased
estate, she
failed to lodge the liquidation and distribution account and she
failed to apply to have the bond transferred to her
name in terms of
section 45.
[9] He submitted that
the first applicant's conduct was characterised by delaying
tactics
because once the liquidation and distribution account was lodged it
would be the end of the matter. Further the first applicant
failed to
defend the summons which resulted in default judgment being granted
on 29 January 2008, and the property being attached
on 11 January
2010. He submitted that the first respondent had bent over backwards
to accommodate first applicant and the deceased
by concluding the
distressed restructuring agreement on 17 June 2010. After the
deceased passed away in 2012 nothing happened with
finalising the
deceased estate. The applicant's present ignorance as a defence but
their inaction with the assistance of her attorney
does not explain
the lack of attending to crucial matters over a period of five years.
[10] The first respondent's
attorneys presented correspondence which span a period of five years
wherein
attempts were made to secure the first applicant's
co-operation and to ensure the matter could be finalised. In view of
the applicants'
unwillingness and or refusal to finalise the winding
up of the deceased's estate, the first respondent was forced to lodge
an application
to compel the applicants' to file the liquidation and
distribution account which order was granted on 28 January 2015 by
Khumalo
J that the parties were to file the liquidation and
distribution account within three months. The order was served upon
all applicants.
There can be no doubt they knew about the existence
of the order.
[11] The third respondent then
provided the first respondent with letters of executorship and
indicated that the first applicant wished to take over the immovable
property. This required the first applicant to attend upon
a branch
of the first respondent to apply for a section 45 endorsement in
respect of the immoveable property. The first applicant
failed to do
so to date. A perusal of the correspondence of the third respondent
indicates that the first applicant failed to furnish
the third
respondent with instructions over a period of time and was
uncontactable. On 11 August 2016 an application in terms of
Rule 46
was served on the first applicant and the second respondent. The
relief was granted by Fabricius J. A warrant of execution
was issued
against the immovable property on 5 September 2016 and a sale in
execution was scheduled for 30 November 2016. The first
respondent
purchased the property for an amount of R293 000. On 7 March 2017,
the attorneys informed the first applicant that they
were proceeding
with the transfer of the immovable property. At this point the first
applicant's attorneys requested the outstanding
balance.
[12] The applicant is required to
show good cause for rescission in terms of Rule 31(2)(b) The
applicant has had an attorney on record for five years and on relies
on a lack of knowledge. This does not constitute good cause
and is an
unacceptable explanation for her dilatory conduct. There is further
no explanation why she failed to apply for an endorsement
in terms of
section 45.
[13] The applicants are in wilful
default in defending both applications preceding the attachment
of
the immovable property as well as the sale of the immovable property.
The applicants have not given a reasonable explanation
for their
default and delay in lodging the liquidation and distribution
account, for defending the first respondent’s claims,
for
disregarding the order of Khumalo J and the first applicant for
failing to apply for an endorsement in terms of sections 45.
The
applicants have failed in their fiduciary obligations. The property
sold for R293 000 on an outstanding loan of R400 000. There
remains a
deficit of R100 000.
[14] Mr Du Plessis submitted that
if the applicant were to argue a lack of funds to instruct
an
attorney this was not accepted as a reasonable explanation in Bowes
v
Pinnick
1905 TS 156.
He submitted further that the dilatory
nature of the applicant is relevant. This too was not accepted as a
reasonable explanation.
In this regard he relied on the decision in
Scholtz v Merryweather
2014(6) SA 90(WCC)at 94F-96C. In view
of the above he submitted that the application be dismissed with
costs.
[15] I am persuaded by the
submissions made on behalf of the first respondent. There is no
reasonable explanation on the papers for the applicants' delay in
bringing the application or for failing to defend the various
applications which have been launched wherein relief was granted.
There has been a delay and a disregard for the various orders
handed
down and there are ground on which the transfer ought to be stayed or
the rescission granted in the absence of good reasons
on the part of
the applicants.
ORDER
[16]
For the above reasons the following order is made:
1.
The application is dismissed.
2.
The applicants to pay the costs of this application.
S
C MIA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA’GAUTENG DIVISION,
PRETORIA
Appearances:
On
behalf of the applicant
:
No
Appearance
Instructed
by
: No
Appearance
On behalf
of the Defendant
:
Adv J A
Du Plessis
Instructed
by
: Hack
Stupel and Ross Attorneys
Date of
hearing
: 26
February 2018
Date of
judgment
: 16
March 2018
[1]
First Respondent's Opposing Affidavit, p182