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[2018] ZAGPPHC 153
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Nkwane v Nkwane and Others (36700/2016) [2018] ZAGPPHC 153 (22 March 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 36700/2016
In
the matter between:
GIVEN
JUA
NKWANE
Applicant
and
KELEBOGILE YVONNE
NKWANE
First
Respondent
MPHEKELELI CLEMENT
MAUBANE
Second
Respondent
THE STANDARD BANK OF
SOUTH AFRICA
LIMITED
Third
Respondent
REGISTRAR OF DEEDS
SOUTH AFRICA
Fourth
Respondent
THE SHERIFF OF ODI (GA
RANKUWA) NORTH
WEST
Fifth
Respondent
MINISTER FOR JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT
Sixth
Respondent
THE SOUTH AFRICAN
HUMAN RIGHTS
COMMISSION
Applicant
for
Amicus
Curiae
JUDGMENT
POTTERILL
J
[1]
In this matter the applicant [Nkwane] is applying that the Court set
aside the sale in execution of Erf […] Zone 9, Ga-Rankuwa
Unit
9 Township, North West [the property] which took place on 28 October
2015. Ancillary to this order sought, the Registrar of
Deeds of South
Africa must be directed to cancel and revive the registration of the
property currently registered in the name of
M C Maubane. The court
is also requested to declare and remedy Rule 46(12) of the Uniform
Rules of Court [the Rules] as far as
it is inconsistent with sections
25(1) and/or section 26(1) of the Constitution of the Republic of
South Africa Act, 1996, in that
it requires the sale of a person’s
home to be conducted without a reserve price.
[2]
The third respondent [Standard Bank] opposed this application.
[3]
The South African Human Rights Commission [SAHRC] was admitted as
Amicus
Curiae
and
Adv Sikhakhane made submissions on its behalf.
[4]
The Rules Board for Courts of Law [Rules Board], although not a party
to the proceedings was, as is required, served with a
Rule 10A
notice. The Rules Board abides the decision of the Court, but
nonetheless on behalf of the Sixth Respondent filed an affidavit
setting out the imminent amendment of Rule 46A, the very bone of
contention, before Court. The Rule has in the meantime been amended.
[5]
The crux of the matter is the constitutionality of Rule 46(12) of the
Rules. All the parties before court are in agreement that
despite the
imminent amendment to rule 46(12) it did not render the matter before
court moot simply because the applicant and those
in a similar
position to him will only get relief from this application, if
granted.
The
common cause factual background
[6.1] Nkwane and his now
divorced wife on 2 September 2011 obtained a home loan from Standard
Bank in the amount of R380 000
pursuant to them purchasing the
property jointly and severally. Standard Bank granted the loan after
an affordability assessment
was done.
[6.2] On 8 November 2011
a continual covering mortgage bond was registered over the property.
[6.3] On 25 February 2012
Nkwane defaulted on his monthly instalment payable to Standard Bank.
A pattern of default and /or payment
of amounts lesser that the
required repayment amount continued. As a result Standard Bank called
Nkwane on 18 September 2012 to
enquire about his default and it was
informed that he was having financial difficulties due to his
divorce. Nkwane then on 26 September
2012 paid more than that’s
month instalment, but insufficient to bring the arrears up to date.
Nkwane however failed to make
any payment towards the loan the next
month, October 2012. The instalments for the months November and
December 2012 were underpaid
and no payments were received for
January, February and March 2013.
[6.4] Nkwane in January
2013 applied for debt review, but nothing came of this application.
[6.5] On 15 March 2013
Nkwane applied to Standard Bank for rehabilitation. If rehabilitation
is granted then it would entitle Nkwane
to pay significantly less
than the monthly instalment which was ordinarily due for the
specified period of time. This application
was granted on 7 June
2013; Nkwane could pay less than half of his normal monthly
instalment for the period of 6 months from June
to November 2013. The
period and amount was in accordance with Nkwane’s express
wishes conveyed to an employee of Standard
Bank, Agnes Silas.
[6.6] Not only pending
the rehabilitation application was Nkwane’s instalment for
April 2013 underpaid and no instalment paid
for May 2013, but by
November 2013 Nkwane had defaulted on his reduced instalments in
terms of the rehabilitation application.
[6.7] On 20 December 2013
Nkwane requested a further rehabilitation programme but this was
against Standard Bank’s policy
to within a 12 month period
grant two applications and the application was denied.
[6.8] Despite promises to
Standard Bank Nkwane’s default or underpayment continued. On 30
July 2014 Nkwane informed Standard
Bank that due to the 2-year
separation from his wife he could not afford the instalments and he
wanted to sell the house. Alicia
Wilson an employee of Standard Bank
informed Nkwane that he must utilise the Bank’s EasySell
Department [EasySell] that would
assist him in marketing and selling
the house. Nkwane however never signed the EasySell mandate.
[6.9] The woes of non- or
underpayment of the instalment continued. On 9 October 2014 Nkwane
informed Standard Bank that his wife
refused to sign the EasySell
mandate and therefor EasySell could not assist.
[6.10] The account was
referred to the Bank’s attorneys. They attempted to secure
payment from Nkwane, but except for R2000
nothing was forthcoming.
The attorneys then proceeded with the sending of a section 129 notice
in terms of the
National Credit Act, 34 of 2005
[the Act].
[6.11] In March 2015
summons was issued and served on Nkwane.
[6.12] Default judgment
was granted against Nkwane and his wife on 17 April 2015.
[6.13] On 30 April 2015 a
warrant of execution was served.
[6.14] On 18 May 2015
Nkwane called Standard Bank to inform it that he and his wife were
divorcing and he could not afford to pay
the instalments due.
[6.15] The attorneys for
Standard Bank attempted to assist Nkwane to sell the house via
EasySell or privately, but no sale transpired.
[6.16] The sale of
execution was to take place on 5 August 2015. Standard Bank cancelled
the sale because of a Voluntary Surrender
Notice published in the
Government Gazette pertaining to Nkwane and his wife. No voluntary
surrender application proceeded.
[6.17] A new notice for
the sale of execution was served and the sale in execution of the
property was set down for 28 October 2015.
Without setting out all
the detail, there is no doubt, that the attorneys for Standard Bank
and Standard Bank itself had between
the period 5 August 2015 and 27
October 2015 by means of telephone calls, again providing an EasySell
mandate and reminders, attempted
to assist Nkwane in avoiding a sale
in execution.
[6.18] At the sale in
execution the property was sold for R40 000. The property was
sold without a reserve price. The insurable
value of the house prior
to the sale of the property was R492 470.00.
Analysis
of the facts
[7]
This is not the story of Standard Bank being the big, bad and
powerful financial institution versus the small, bona fide
individual.
In recovering the debt Standard Bank went out of
their way to assist Nkwane, by
inter
alia
more
than halving the instalments payable and offering to assist in
marketing and selling the property out of hand; not by means
of a
sale in execution. The default of payments started shortly after the
loan was granted and the loan certainly cannot be branded
as reckless
credit.
[8]
Nkwane did not sell the house out of hand because his wife refused to
sign the mandate to do so. It is generally accepted that
a voluntary
sale will realise more than a forced sale. It was also the separation
and divorce that caused Nkwane his inability
to pay the instalments.
If the same institution, now representing Nkwane, could have assisted
Nkwane in obtaining an order
compelling Nkwane’s wife to sign
the mandate it would have removed the thorn from the flesh and I
venture to say that this
matter would not have proceeded to court.
[9]
Having said that, it is like a blow to the stomach absorbing that a
house worth R470 000 was sold for R40 000 to settle
a debt
of R370 000; but is this process substantially and procedurally
unconstitutional?
The
Mouton
and
Bartezky
matters
[10]
After this application was launched two judgments spoke on this very
issue. On 14 July 2017 the Gauteng Local Division
of the High
Court in the matter of
Mouton v ABSA,
Case number
17922/2014
and Haylock v ABSA
Case number
24820/2015
[the
Mouton
matter] found that Rule
46(12) did not constitute an unjustifiable limitation on the debtor’s
right to adequate housing. In
Bartezky and Another v Standard
Bank of South Africa Limited and Others
[2017] ZAWCHC 9
of
16 February 2017
[the
Bartezky
-matter] the Court
found that neither rule 46 in general, nor sub-rule 46(12) in
particular, permits arbitrary deprivation of property,
whether
substantially or procedurally.
The
relevant rule
[11]
Rule 46(12) at the time read as follows:
“
Subject to the
provisions of subrule (5), the sale shall be without reserve and upon
the conditions stipulated under subrule (8),
and the property shall
be sold to the highest bidder.”
[12]
Rule 46(12) as amended reads:
“
Subject to the
provisions of
Rule
46A and
subrule
(5) hereof –
(a) the sale shall be
[without reserved and]
conducted
upon the conditions
stipulated under subrule (8); and
(b) the
immovable
property shall be sold
to the highest bidder.”
Is
there evidence to sustain the argument that a reserve price will
obtain a higher sale price at a sale of execution?
[13]
For the applicant the reversal of arbitrary deprivation of property
lies in the setting of a reserve price for a property at
a sale of
execution. In the affidavit for the applicant no evidence is set out
to sustain the argument that a reserve price will
yield a higher
price at a sale in execution. Notionally that may be so, but with no
evidence to support this contention and with
evidence to the contrary
in the answering affidavit the
Plascon
Evans
[1]
principle shall prevail
and I will accept the evidence of Standard Bank. The evidence of
Standard Bank is that the relatively low
prices produced at a sale in
execution reflect the very nature of a sale in execution; a forced
sale. A forced sale takes place
regardless of economic circumstances
or whether the property market is a “
sellers
or buyers’ market”
.
There is an uncertainty linked to forced sales because they are often
cancelled at the last minute due to applications to
stay the
execution, or last minute arrangements between the debtor and the
financial institution. Buyers shy away from forced sales
because the
conditions of sale render the buyer liable for outstanding rates and
taxes, even though now for a limited period of
time.
[2]
A buyer might be faced with the prospect of drawn-out and expensive
eviction proceedings of people occupying the property.
Although
perhaps opinion evidence of the Bank, the same submissions were made
and accepted in the
Mouton
-matter.
There is no reason for this court not to accept the logic of the
facts set out by the bank.
[14]
I must also accept the evidence of Standard Bank that there is a
misconception that sales in execution with a mandatory reserve
price
attract higher purchase prices. “
in
the experience of the Bank, the opposite is true. Where sales of
property at an auction are subject to a reserve price …
(…..),
the effect of this is to diminish interest in the sale and reduce the
likelihood of the property being sold at the
auction at all.
[3]
Where the property is
sought to be sold in execution but no sale results, this causes
prejudice to both the execution creditor and
the execution debtor
…
[4]
…
An additional
challenge is that the property often deteriorates further because the
sale date is often months apart. This will reduce
the price that the
buyers are willing to pay at subsequent sales. The execution debtor
and execution will, accordingly, both be
financially
disadvantaged.
[5]
The whole premise of a
higher price or reasonable price because of the setting of a reserve
price is thus contradicted with evidence
of a financial institution
that deals with execution sales on a daily basis. There are thus no
facts to support the notional contention
raised. No facts are set out
as to what the reserve price must be based on. On this alone the
application should be dismissed.
[15]
The SAHRC referred the court to international and foreign law for the
court to fulfil its duty in terms of section 39(1) of
the
Constitution. In
Jaftha
v Schoeman and Others, Van Rooyen v Stoltz and Others
[6]
the Court referred to the
International Covenant on Economic, Social and Cultural Rights
[ICESCR] wherein the importance of the
right of everybody to adequate
housing is emphasized and obliges member states to take measures to
ensure the realisation of this
right. The court also took cognisance
of General Comment No 4 of the United Nations Committee on Economic,
Social and Cultural
Rights wherein the security of tenure is an
important and integral part of the right to adequate housing. Based
on this international
law the commission submitted that sales in
execution generally, and more so without a reserve price, threatens
the right to access
to adequate housing.
[16]
The SAHRC also referred the Court to a comparative-law analysis of
the law as it applies in foreign jurisdictions. Hungary,
England,
Wales and Scotland do not have a mandatory reserve price. In South
Korea, France, Ghana and Germany legislation requires
a mandatory
price.
[17]
The SAHRC submitted that Rule 46 violates sections 25 of the
Constitution. This is so because Nkwane’s right to property
is
violated because execution without a reserve price results in a
deprivation of the debtor’s property. In regards to the
violation of section 26 the SAHRC submitted that without doubt sales
in execution limit the right to access to adequate housing.
[18]
Although the thorough piece of work is much appreciated, I cannot
find that its submissions has persuaded me that Rule 46,
as it stood,
did offend sections 25 and 26 of the Constitution. Its submission
that like in other jurisdictions the setting of
a reserve price
should be done by the Legislature is telling.
[7]
It supports the contention in the
Bartezky
-matter
that a mandatory reserve price is a policy matter that must be left
to the Legislature. The SAHRC did not advance
any reason as to
why Rule 46 constituted arbitrary deprivation. It also refrained from
entering the debate as to whether the right
to property may in these
circumstances be justifiably limited. As for s26 of the
Constitution the SAHRC did not independently
present evidence that
the absence of a mandatory reserve price violates the access to
adequate housing; there was no factual basis
contrary to Standard
Bank’s submissions. It was also not shown that the lack of a
reserve price is inherently unreasonable.
Does
a sale in execution without a mandatory reserve price offend section
25 of the Constitution?
[19]
Section 25 reads as follows:
“
25. Property
(1) No one may be
deprived of property except in terms of law of general application,
and no law may permit arbitrary deprivation
of property.”
[20]
In essence the applicant submitted that the lack of a reserve price
as a prerequisite for a sale in execution affects a judgment
debtor’s
right to equity in the property. In a nutshell; one’s property
being sold not for the real value, but for
the forced value
constitutes an arbitrary deprivation of one’s property contrary
to s25 of the Constitution. The remedy sought
is however not that the
real value be realised, or that it not be a forced sale, but that
there be judicial oversight in the execution
process affording
protection to a judgment debtor. Property was to be seen as either
the equity in the property or the outstanding
debt still payable
after the sale. For this argument reliance was placed on the matter
of
First
National Bank of SA Ltd t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC)
para [57]: “…
In a
certain sense any interference with the use, enjoyment or
exploitation of private property rights involves some deprivation
in
respect of the person having title or right to or in the property
concerned. If section 25 is applied to this wide genus of
interference, “deprivation” would encompass all species
thereof and “expropriation” would apply only to
a
narrower species of interference ...”
Such
deprivation would be arbitrary because: “
In
its context ‘arbitrary’, as used in section 25, is not
limited to non-rational deprivations, in the sense of there
being no
rational connection between means and ends. It refers to a wider
concept and a broader controlling principle that is more
demanding
than an enquiry into mere rationality. At the same time it is a
narrower and less intrusive concept than that of the
proportionality
evaluation required by the limitation provisions of section 36.
This is so because the
standard set in section 36 is ‘reasonableness’ and
‘justifiability’ whilst the standard
set in section 25 is
‘arbitrariness’. This distinction must be kept in mind
when interpreting and applying the two
sections.”
[8]
[21]
Section 25 does not guarantee a right to property, only a right
against arbitrary deprivations. The deprivation of the property,
the
interference with the use, enjoyment or exploitation finally takes
place after a court determined upon consideration of all
the relevant
circumstances that a creditor is empowered to execute against
immovable property and the sheriff is entitled to sell
the property.
A forced sale with no reserve price is not a deprivation of property,
but the method by which the sale takes
place. The equity in the
property is the bank’s security for payment of the outstanding
debt. If there is still an outstanding
amount after the sale it flows
from the non-payment of the debt and the deprivation of the property
in terms of rules 46(1)(a)(ii)
and 46(10), not from the lack of a
reserve price.
[22]
Even if I should be wrong, and Rule 46(12) does deprive a debtor of
his property, then in terms of Rule 46(12) the deprivation
of
property is not arbitrary. On behalf of the applicant it was argued
that the fact that the applicants house was sold for R40 000
at
the sale of execution, without a reserve price, while it was worth at
the very least R447 700 the insured value,
constituted an
arbitrary process. This is fortified by the fact that the only
purpose in selling the property is to settle the
debt, by only
realising R40 000 they have not fulfilled their purpose. To
determine whether the deprivation was arbitrary
Keightley J, in my
submission correctly, relying on
Mkontwana
v Nelson Mandela Metropolitan Municipality
2005
(1) SA 530
(CC)
at
para 45 first enquired whether there is a connection between the
purpose of the deprivation and the property or its owner. I
agree
with her finding that: “
The
debt in respect of which execution is effected, is inherently linked
to both the debtor/owner and the property … It is
difficult to
imagine a closer connection between the purpose of the execution on
the one hand, which at the most basic level is
the recovery of the
outstanding debt on the loan, and the owner and property on the
other.”
[9]
[23]
The next question to be answered is whether there is sufficient
reason for the deprivation, bearing in mind the nature of the
relationship. The argument is that there is no connection between the
means and the ends because the bank by selling the property
for such
a low price does not recover its debt. Banks accept that by the very
nature of forced sales banks are going to depress
what can be
recovered. The purpose thus of the forced sale is to recover what
part of the debt can be realised. This procedure
with all its
constraints, recovering only what it can, is not ideal for the bank
or debtor, but is does not render the process
irrational. It is
rational because it allows for the bondholder to sell with a
relatively cheap and expeditious procedure to reduce
the debt. I also
agree with the finding in the
Mouton
-matter
“
that
the judgment debtor’s rights in the property were, from the
inception, subject to the limitations placed on them by agreement
between the debtor/owner and the bank.”
[10]
and: “
There
are compelling socio-economic reasons to facilitate the recovery of
debts due by mortgage defaulters. The provision of credit
under
mortgage loan agreements is essential for extending participation in
the housing market. Effective debt recovery permits
lenders to extend
credit to new entrants in the market ...”
[11]
The factor that a reserve
price does not necessarily lead to a higher price or a price closer
to market value, but in fact reduces
the possibility of a sale, also
renders the procedure as it stands rational.
[24]
The lack of the setting of a reserve price is equated to arbitrary
deprivation of the debtor’s right to property. In
the
Mouton
judgment the Court was
alive to the fact that an alternate means of sale may be more
beneficial to both debtor and creditor. “
However,
Rules 46(10) and (12) do not preclude this. For example, the Rules do
not preclude the marketing of the property by the
judgment debtor
through an estate agent in order to avoid an ultimate sale by public
auction. It is in the interests of both the
bank and the judgment
debtor to realise as much value in the property as reasonably
possibly. These Rules do not force the bank
into selling the property
through a public auction …”
The
facts in this matter [Nkwane], substantiates Keightley J’s
finding that rule 46(12) is no bar to banks accommodating,
and indeed
attempting, to realise as much value as possible and not blindly
resorting to sales in execution with no reserve price.
[25]
Upon exercising judicial oversight execution is ordered with no
alternative than by means of a sale in execution, the
whole premise
of selling the property at a market related price just does not come
into play; a forced sale
vis-à-vis
a willing
selling and buyer. Furthermore the whole premise of attaining a
market-related price, or a higher price, by setting a
reserve price
for a sale in execution is contradicted by the evidence of the bank.
For this court to set a mandatory reserve price,
with no evidence as
to what this reserve price should be based on, as a general principle
to prevent arbitrary deprivations would
not be exercising the Court’s
duty judicially.
Should
the Rules Board amendment to Rule 46(12) render the above argument
wrong?
[26]
I think not, because a court is “
rarely
concerned with the evaluation of a relationship between means and
ends, it is between the means employed to achieve a particular
purpose. The aim of the evaluation of the relationship is not to
determine whether some means will achieve the purpose better than
others, but only whether the means that is employed, are rationally
related to the purpose for which the power was confirmed.”
[12]
If it is accepted that
there is a difference of opinion as to whether there must be a
mandatory reserve price or not then “
these
difference of opinion are not the kind of issues courts should
interfere with too readily. They are mostly instances of legislative
facts where courts should not easily interfere with the choices made
by legislatures.”
[13]
It is also noteworthy
that the Rules Board has not introduced a mandatory reserve price,
but has instead resorted to removing the
mandatory sale without
reserve when immovable property is sold by means of execution.
Sub-rule 46A(8) grants a Court in its discretion
to
inter
alia
set
a reserve price. Rule 46A(9) sets out 9 factors, as well as any other
factor, that a court must consider before setting a reserve
price.
The Rules Board thus did not elevate a reserve price to a mandatory
price in contra-distinction to the relief sought in
this application.
The Rules Board has thus resorted to judicial discretion as to
whether a reserve price must be set. Perhaps the
amended Rule 46(12)
is an improvement, but the unamended rule affords an adequate
rational connection between ends and means.
Does
the rule offend Section 26 of the Constitution?
[27]
Rule 26 reads as follows:
“
26. Housing –
(1) Everyone has the
right to have access to adequate housing.
(2) The state must
take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation
of this right.
(3) No one may be
evicted from their home, or have their home demolished, without an
order of court made after considering all the
relevant
circumstances. No legislation may permit arbitrary evictions.”
[28]
The submission, so it went, was that Nkwane had lost his right to
adequate housing because he was blacklisted and would not
be able to
apply for credit to enter the housing market again. This would also
in general affect a person who utilises a state
subsidy who will be
disqualified from ever again obtaining other state-aided housing.
Standard Bank thus infringed Nkwane’s
right to adequate
housing.
[14]
[29]
The argument further went that the selling of the house was an
infringement of Nkwane’s right to access to housing.
Although the broad principle of rule 46 is not objectionable,
judicial oversight is necessary for the process of the sale in
execution
also. This is necessary because it could never be fair,
balanced or justifiable to sell a house valued at R470 000 for
R40 000
to settle a debt of R370 000. The amendment of Rule
46 and 46 (A) by the Rules Board is proof that the rules as they
stood
were not justifiable and thus unconstitutional.
[30]
I start with the “
black-listing”
,
this is not a result of the sale of execution without a reserve
price, but the fact that the debtor is not paying his debt, and
is
not a fact this court will consider.
[31]
This court has sympathy with Nkwane, but these subjective facts of
what the house was valued at or what it was sold for have
no bearing;
the test is whether the rule is objectively invalid. I cannot find
that there is an unreasonable negative impact on
the right to
housing. As demonstrated by the SAHRC sales in execution take place
in all the highlighted jurisdictions, in some
a reserve price is set
and in some not. The fact that the Rules Board previously did not
find a reserve price to be fit and now
gives a court a discretion to
set a reserve price, does not per se render the first stance
unreasonable and accordingly there is
no violation of section 26. The
judicial oversight required
[15]
before a property is declared executable adequately protects the
right to housing. Once a property is declared to be specially
executable, it must be assumed that a court has pronounced that the
limitation on the mortgage debtor’s right to adequate
housing
is justified.
[32]
This court has no authority to order a mandatory reserve price
because such a finding is in fact a policy consideration. Support
for
this finding is to be found in the submission of the SAHRC and the
finding in the
Bartezky
matter.
[33]
I thus in principle agree with the findings in both the
Mouton
and
Bartezky
matters. As highlighted
by the court in the Mouton-matter, Rule 46(12) only takes effect
after a Court has declared a debtor’s
home to be specially
executable. Judicial oversight was thus already exercised to protect
a defaulting debtor’s right to
housing. In
Gundwana
v Steko Developments and Others
2011
(3) SA 608
(CC)
at
para 54 the Court found that: “
It
must be accepted that execution in itself is not an odious thing. It
is part and parcel of normal economic life. It is only when
there is
disproportionality between the means used in the execution process to
exact payment of the judgment debt, compared to
other available means
to attain the same purpose, that alarm bells should start ringing. If
there are no other proportionate means
to attain the same end,
execution may not be avoided.”
[34]
The whole process up to execution is regulated by the Act and Uniform
Rules of Court with built in safeguards protecting a
creditor which
Banks have to adhere to before issuing summons and thereafter. The
courts have judicial oversight before a property
is declared
specially executable. In the
Mouton
and
Bartezky
-matters
the considerations and steps are highlighted and I need not re-invent
the wheel.
[16]
These
safeguards in the process afford a judgment debtor ample opportunity
to avoid the sale of a property and/or a sale
by means of execution.
I cannot find the procedure to be unfair.
Does
the rule infringe on the right of access to courts?
[35]
I do not find it necessary to address the point raised in the papers,
but not developed in argument, that the fact that no
reserve price is
set infringes a debtor’s right to access to the courts. This is
simply not true; a debtor has in terms of
the process access to a
court before the execution is ordered and thereafter.
Remedy
[36]
In the application no remedy is proposed and although the submission
was that the application was not to protect the kind of
debtor
reflected in the
Bartezky
and
Mouton
matters, a blanket
declaring of rule 46(12) unconstitutional will do exactly that. A
court has a duty when declaring a rule unconstitutional
to seriously
consider the effect of such order. In this case, extraordinary
far-reaching consequences of setting aside sales in
execution, not
only affecting the Banks rights, but third parties rights who will
lose their ownership of properties, are extreme
and a remedy to
balance these rights seem unattainable.
[37]
I accordingly make the following order:
a. The application is
dismissed.
b. No order as to costs.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 36700/16
HEARD
ON: 10 October 2017
FOR
THE APPLICANT: ADV. A. DE VOS SC
ADV.
M. MOROPA
INSTRUCTED
BY: Lawyers for Human Rights
FOR
THE THIRD RESPONDENT: ADV. S. BUDLENDER
ADV.
M. STUBBS
INSTRUCTED
BY: Norton Rose Fulbright Inc
FOR
THE SIXTH RESPONDENT: No appearance
INSTRUCTED
BY: State Attorney, Pretoria
FOR
AMICUS CURIAE
: ADV. M. SIKHAKHANE
INSTRUCTED
BY: Legal Resources Centre
DATE
OF JUDGMENT: 22 March 2018
[1]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A)
[2]
Jordaan and Others v City of Tshwane Metropolitan Municipality
and Others; City of Tshwane Metropolitan Municipality v New
Ventures Consulting and Services (Pty) Limited and Others;
Ekurhuleni Metropolitan Municipality v Livanos and Others
(CCT283/16, CCT293/16, CCT294/16)
2017 (6) SA 287
(CC)
[3]
Paragraph 28 of answering affidavit
[4]
Paragraph 29 of answering affidavit
[5]
Paragraph 30 of answering affidavit
[6]
[2004] ZACC 25
;
2005 (2) SA 140
(CC) para 23 to 24
[7]
Paragraph 150
[8]
First National Bank t/a Wesbank v Minister of Finance supra
at
para [65]
[9]
Mouton v Absa and Haylock v Absa
17922/2014 and 24820/2015
para [93]
[10]
Mouton supra
at para [96]
[11]
Mouton supra
at para [97]
[12]
Democratic Alliance v President of Republic of South Africa and
Others
2013 (1) SA 248
(CC) at para 32
[13]
Shoprite Checkers (Pty) Limited v Member of the Executive Council
for Economic Development, Environmental Affairs and Tourism, Eastern
Cape and Others
2015 (6) SA 125 (CC)
[14]
Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others
2005
(2) SA 140 (CC)
[15]
Gundwana
para 53
[16]
Paragraphs 76 and 77 and para 10