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[2018] ZAGPJHC 563
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M M v Rescue Rod (Pty) Ltd; Rescue Rod (Pty) Ltd v M M and Others (14095/15) [2018] ZAGPJHC 563 (9 October 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 14095/15
In
the matter between:
M
M APPLICANT
And
RESCUE
ROD (PTY)
LTD RESPONDENT
And
in the matter between:
RESCUE
ROD (PTY)
LTD APPLICANT
And
M
M 1
ST
RESPONDENT
M
I 2
ND
RESPONDENT
S M AND
DAUGHTER WATER RETICULATION
AND SEWER
CC 3
RD
RESPONDENT
J U D G M E N
T
KEIGHTLEY
J
:
INTRODUCTION
1.
This matter involves
efforts by a creditor, the respondent, Rescue Rod (Pty) Ltd (the
creditor), to execute against immovable property
(the Bushkoppies
property) owned by the applicant, Ms M, for a debt incurred by a
close corporation (the CC) of which Ms M’s
ex-husband (Mr M),
was the sole member. To complicate matters further, Mr and Ms M
were married in community of property,
and Mr M assumed obligations
as surety and co-principal debtor for the CC’s debts to the
creditor. The Ms subsequently
divorced in September 2015.
2.
The creditor obtained
an order declaring the Bushkoppies property executable by default,
after Ms M’s attorneys withdrew and
she failed to file an
answering affidavit. When the Sheriff proceeded to effect the
attachment of the property and its execution
by way of a sale in
execution, Ms M applied for, and was granted, an urgent stay of
execution, pending an application for rescission
of the order
declaring the property executable.
3.
The first application
before me is the rescission application by Ms M. The creditor
opposes the rescission application.
In addition, it has filed a
counter-application in which it seeks an order declaring Ms M to be
jointly and severally liable with
Mr M for payment of the balance of
the debt, and for an order that Ms M be cited on the writ of
execution authorizing the Bushkoppies
property to be sold in
satisfaction of the debt.
4.
Before dealing with
each of the applications, it is important to provide some detailed
background facts underpinning the litigation.
FACTS
5.
Ms M is in her sixties,
her ex-husband is about 10 years her senior. The
Bushkoppies property was the former matrimonial
home. Ms M
continues to reside there and it is her primary residence. Mr M
was involved in the business of the CC.
In May 2013, he bound
himself as surety and co-principal debtor to the creditor for the
debts of the CC. The creditor provided
services to the CC in
return for payment. However, it seems that the business of the
CC ran into difficulty and by November
2014, it was indebted to the
creditor in the amount of R163 787. 13. When payment was not
forthcoming, the creditor instituted
an application against the CC
for its winding up. The parties to that litigation were the
creditor, as applicant, and the
CC as respondent. The
application was issued on or about 16 April 2015 under the same case
number as the present applications.
6.
At that stage, Mr and
Ms M were still married in community of property. In order to
stave off the winding up application,
Mr M entered into a Deed of
Settlement (the Settlement) with the creditor. He did so in his
representative capacity as regards
the CC. However, the
Settlement also contained provisions in terms of which Mr M bound
himself in his personal capacity.
The relevant terms of the
Settlement may be summarised as follows:
(a) The CC admitted its
indebtedness to the creditor for the capital sum of the debt,
interest and costs of the application in the
sum of R10 000. 00.
(b) Mr M acknowledged
that he had bound himself as surety and co-principal debtor in May
2013.
(c) The Settlement
recorded that Mr M “herewith intercedes in these proceedings
and acknowledges his indebtedness to the (creditor)
as surety and
co-principle debtor
in solidium
with (the CC) for payment of
the amounts recorded”.
(d) The Settlement
further recorded that: “Notwithstanding that (Mr M) has not
been cited in these proceedings and is not
a party to the liquidation
application (Mr M) herewith consents to be bound by the Order of this
Honourable Court and to judgment
being entered against him in his
capacity as surety and co-principal debtor ...”.
(e) The CC and Mr M
undertook to pay the indebtedness of R167 787. 13 “on or before
the 30th June 2015 or upon transfer of
the (CC’s) property
situate at ....” (there followed a description of two immovable
properties registered to the CC,
neither of which was the Bushkoppies
property).
(f) On breach, the CC
became entitled to issue out a writ “without further notice to
the (CC) and/or (Mr M) for attachment
of property in execution of the
Order”.
(g) The (creditor) was
entitled “to approach the above Honorable Court on the same
papers filed in this application, duly
supplemented, for an Order as
prayed for in the Notice of Motion.” I point out in this
regard that the Order prayed
for was the winding up of the CC.
7.
The Settlement was made
an order of court on 6 May 2015.
8.
The CC and Mr M did not
comply with the terms of the Settlement. Accordingly, the
creditor first proceeded to issue out a
warrant of execution in
respect of movables. However, the M’s Trust filed
interpleader proceedings claiming ownership
of the attached movables,
and consequently the execution proceedings in respect of movables
failed to discharge the indebtedness.
9.
During the course of
2015 Ms M instituted divorce proceedings against Mr M. A decree
of divorce was issued on 15 September
2015. In terms of the
settlement agreement that was made an order of court along with the
decree of divorce, Ms M became
the sole owner of the Bushkoppies
property. The property was transferred into her name in October
2015. It had previously
been registered in both of their names.
10.
In February 2016 the
creditor instituted an application in the High Court to have the
Bushkoppies property declared to be executable.
This
application (the execution application) was again instituted under
the same case number. The creditor cited the CC,
Mr M and Ms M
as the respondents. Although they were so cited, neither Mr M
or Ms M were ever formally joined in the proceedings.
11.
By the time the
execution application was filed Mr and Ms M were no longer married,
their joint estate was dissolved, and Ms M was
the sole owner of the
the Bushkoppies property.
12.
Ms M filed a notice of
intention to oppose the execution application. According to her
founding affidavit in the rescission
application, her attorneys
requested a deposit of R35 000 to continue acting on her behalf.
She says that, as a pensioner,
she could not afford to make the
payment, and her attorneys withdrew on 4 March 2016. She was
not advised by her attorneys
that the matter would proceed in her
absence, and on an unopposed basis on 8 March 2016. After her
attorneys withdrew she
did not receive a notice of set down from the
creditor informing her that the matter would proceed on the 8 March
2016. Ms
M states that she was not aware that the matter would
proceed. Although she had filed a notice of opposition, she
never filed
an answering affidavit in the proceedings.
13.
The matter duly
proceeded on the unopposed roll on 8 March 2016 in Ms M’s
absence, and an order was made declaring the Bushkoppies
property to
be executable. The order read as follows in relevant part:
“
The
First and Second Respondent’s 100% interest in (the Bushkoppies
property) is declared executable”
14.
The party cited as
First Respondent in the execution application was Mr M, and the
person cited as Second Respondent was Ms M.
It is common cause
that in the founding affidavit in the execution application the
creditor had averred that the Bushkoppies property
was owned and
registered jointly in the names of both Ms. The creditor
attached a copy of a title deed search to its founding
affidavit in
support of this averment. It is also common cause that that
title deed search was out of date, as by the time
the execution
application was launched, Ms M was the sole registered owner of the
property. It follows that the execution
application was
pursued, and the order was granted on the erroneous basis that both
Mr and Ms M were the joint owners of the Bushkoppies
property.
15.
A writ of execution was
issued pursuant to the order of executability. The writ was
dated 24 August 2016. In it, only
Mr M is cited as the judgment
debtor. The writ was served on 5 October 2016. Ms M
states that the attachment came as
a shock to her, as she had not
been served with an order declaring the property executable.
She instructed her current attorneys
to act on her behalf in
defending her rights in the property. Following the
intervention of her attorneys, the urgent application
was launched to
stay the auction of the property pending the institution of a
rescission application by Ms M.
RESCISSION
16.
Ms M applies for the
rescission of the execution order. An important point I made
earlier bears repeating: although Mr and
Ms M were cited as
respondents in the execution application, neither of them had been
formally joined in the proceedings.
This is important because
the original parties to the proceedings were the creditor and the CC;
and the relief originally sought
was the winding up of the CC.
The creditor did not originally seek relief in the form of obtaining
a judgment debt against
the CC, Mr M or Ms M. What prompted the
shift away from the relief originally sought (i.e. winding up of the
CC), and the
citing of Mr and Ms M as parties to the proceedings, was
the Settlement entered into by Mr M.
17.
Of further significance
is the fact that at the time the execution order was sought and
granted, the joint estate had been dissolved
by divorce, and Ms M was
the sole owner of the Bushkoppies property, Mr M no longer holding
any proprietary interest in it.
18.
In her founding
affidavit Ms M submitted that she was never a judgment debtor in
respect of the debt upon which the creditor sought
to execute against
her property. When execution was sought, she was the sole owner
of the property, and the creditor was
not legally entitled to execute
against her property. This, she submitted, constituted a
bona
fide
defence to the
execution application.
19.
She averred further
that she was not in willful default in respect of the execution
application: she did not have the resources
to pay her attorneys to
prosecute her opposition to the execution application, and she did
not know, and was not given notice,
that the matter was to proceed on
8 March 2016 in her absence. She is a pensioner, and English is
not her first language.
Thus, she would not have been in a
position to conduct her own legal opposition to the execution
application. Further, she
pointed out that as the Settlement
made reference to the transfer of two properties held by the CC in
payment of the debt, she
did not comprehend how the creditor could
lawfully seek execution against the Bushkoppies property, which was
now owned by her
exclusively, and she assumed that there was some
error on the part of the creditor in this regard.
20.
At the hearing of the
application, counsel for Ms M submitted in addition that the
execution application was procedurally flawed
as neither Mr nor Ms M
had ever been formally joined in the proceedings, which, as I have
already pointed out, had begun life as
an application for the winding
up of the CC. Counsel emphasised the fact that judgment had
never been entered against Ms
M seeking to hold her liable for the
debt to the creditor. It was submitted that execution against
Ms M’s property
could not properly be granted without a
pre-existing judgment holding her liable for the debt. It was
also argued that the
execution application was fatally flawed in that
the Bushkoppies property was no longer part of the joint estate
(which had become
dissolved on divorce), and that it was no longer
held in co-ownership by Mr and Ms M. It was submitted that the
order was
erroneously sought and granted consequent on this
fundamental flaw.
21.
The creditor disputed
that Ms M had made out a proper case that she had not been in willful
default, labeling her explanation as
being very weak. The
creditor also relied on the fact that Mr M had entered into the
Settlement during the course of the
marriage. As the marriage
was in community of property, the effect of him acknowledging his
indebtedness to the creditor
for the debts of the CC was binding on
the joint estate. Even though the marriage had subsequently
been dissolved by divorce,
the debts of the joint estate remained
exigible from the former parties to the marriage. Thus, the
creditor argued that it
was entitled to obtain the declaration of
executability against the Bushkoppies property, notwithstanding that
it was now owned
by Ms M. On this basis, the creditor disputed
that Ms M had a
bona
fide
defence to the
executability order.
22.
As to the failure to
join Mr and and Ms M to the proceedings before instituting the
execution application, counsel for the creditor
submitted that such
joinder was unnecessary because of the fact that in the Settlement Mr
M had consented to intercede in the proceedings,
and that he had
consented to judgment being granted against him. Further, he
had agreed that the creditor could approach
the court, on
supplemented papers for a further order.
23.
In my judgment, this is
a proper case in which to grant rescission. Of central
importance is the fact that the order at issue
has the very real
potential to deprive Ms M, who is a pensioner, of her primary
residence. This is a significant factor when
viewed in the
context of the remaining facts of this particular case.
24.
It
is so that even after a marriage in community of property has been
terminated, unpaid debts of the joint estate may be recovered
from
the now separate estates of the previous parties to the marriage.
[1]
Thus,
the mere fact that Mr and Ms M’s marriage ended after the
Settlement was made an order of court, does not mean that
the
creditor may not pursue a claim against Ms M’s estate for her
share of the debt.
25.
However, there are
important riders to this. In the first place, it seems that the
liability of the spouse who did not incur
the debt is limited in that
:
“
...
such a debt may be enforced by the creditor concerned for the whole
amount outstanding against the estate of the spouse who
incurred it
and for half the amount against the estate of the other spouse.”
[2]
26.
By the time that the
execution application was instituted, the M’s were divorced,
and the property was no longer registered
to them jointly.
There was no acknowledgement of this in the execution application.
In fact, in the founding affidavit
the Ms are described as being
still married to each other in community of property, and being the
joint registered owners of the
Bushkoppies property. It was on
that basis that the order sought was to have the 100% interest by Mr
and Ms M declared to
be executable.
27.
In my view, the entire
basis for the particular relief sought by the creditor, and granted
by default, was erroneous: the
parties were no longer married
in community of property, and Ms M’s interest in the property
could not be attached and executed
against on that basis, as was
asserted in the founding affidavit in support of the execution
applicaiton. In addition,
Mr M no longer held any
interest in the Bushkoppies property. This being the case, there was
simply no basis on which the court
could properly have declared his
interest in the property executable. The transfer of the
property into Ms M’s name
subsequent to the divorce put paid to
this. Had the court known that the parties were no longer
married, and that Mr M no
longer had an interest in the property, it
could not possibly have granted the order in the terms that it did.
28.
This in itself, in my
view, is sufficient to establish a foundation for setting aside the
order of executability.
29.
Even
if it could be argued that a limited form of an order of
executability would have been competent against the Bushkoppies
property
in respect of Ms M’s obligation for the joint debt,
this does not assist the creditor. For one thing, the order it
sought and was granted was an order for the full debt in respect of
the M’s joint interests in the property. The creditor
did
not seek to make out an order for executability against Ms M for her
half share of the debt that was incurred by Mr M.
Even it it
had, Ms M was never formally joined in the execution application.
By the time that application was instituted,
she was divorced, and
was entitled to be joined in her individual capacity. Any
“intercession” made by
Mr M in the Settlement, could not
be held to cover her, post-divorce, so as to excuse the creditor from
its procedural obligation
to join her as a fully fledged party to the
execution proceedings. The creditor sought to argue that such
joinder was not
necessary, as Ms M’s interest in the execution
application was merely financial. It relied in this regard on
Strydom
v Engen
[3]
in
which it was held that in proceedings where the validity of a
suretyship was in dispute, a wife in community of property did
not
have a substantial and direct interest in the outcome, and thus her
joinder was not necessary. In the present case, however,
the
execution application had profound implications for Ms M’s
constitutional right to adequate housing under s26 of the
Constitution. There can be no question that she had a
substantial and direct interest in the proceedings declaring that her
property could be executed for a debt incurred by her ex-husband
while they had been married in community of property.
30.
Furthermore, in its
execution application the creditor relied expressly on Mr M’s
judgment debt. In a section headed
“Judgment against
First Respondent” in the founding affidavit in the execution
application, the creditor sets out the
history of the Settlement and
its terms. It is clear from the averments contained in this
section that the creditor relied
on the Settlement constituting a
judgment debt against the First Respondent, who was Mr M. The
creditor does not claim to
have obtained a judgment against Ms M.
In fact, by virtue of its counter-application, the creditor
implicitly acknowledges
that it has never obtained judgment against
Ms M for the debt owed to it. It has been stated as a trite
principle that:
“
generally,
property cannot be made the subject of an order of attachment in
pursuance of a writ of execution unless judgment has
been taken
against the debtor.”
[4]
31.
More
recently, a full court of this Division found that a money judgment
is “the cornerstone of the order for execution; it
is a
necessary averment that forms part of the cause of action to obtain
an order for execution.”
[5]
A
warrant of execution obtained after divorce may be set aside in
circumstances where the warrant is based on a judgment taken against
an ex-husband for debts incurred during the existence of a marriage
in community of property on the basis that:
“
it
necessarily involves execution being levied upon property of a person
without judgment having been taken against that person
for the amount
for which execution is levied.”
[6]
32.
For this reason, too,
in my view, the declaration of executability granted by default
against Ms M’s property falls to be
rescinded. The
creditor based its execution application on the full amount of Mr M’s
debt in the absence of a judgment
against Ms M, and notwithstanding
that Ms M, who was now the sole owner of the property, stood to be
severely prejudiced in respect
of her constitutional right to
adequate housing in consequence of the order.
33.
From what I have stated
above, it should be clear that the execution application was
fundamentally flawed in a number of respects.
As I have
indicated, some of these flaws constitute sufficient reason to set
aside the execution order on the basis that it was
erroneously
granted. At the very least, the flaws establish a
bona
fide
basis upon
which Ms M may defend the application for an order of executability
against her property.
34.
This is particularly so
in circumstances where Ms M’s right to adequate housing is so
directly implicated. Courts are
enjoined to be constitutionally
vigilant in granting orders of executability by default. In
this case, Ms M did not file
an answering affidavit and so the court
had no information before it about her personal circumstances and the
impact that an order
of executability would have on her
constitutional rights. There is no evidence that after her
attorneys withdrew Ms M was
given notice of the set down by the
attorneys for the creditor. She was thus not afforded a proper
opportunity to attend
the proceedings and apprise the court of
her personal circumstances. I am satisfied that in these
circumstances, she
was not in willful default. Given the
importance of her right of access to adequate housing, she ought to
be afforded a proper
opportunity to place before the court her
defence to the execution application, and to provide the court with
reasons why, given
her personal circumstances and the history of the
debt, her property should not be declared to be executable.
35.
For these reasons, I
find that the application for rescission should be granted.
36.
I turn now to the
question of the counter-application.
COUNTER-APPLICATION
37.
The relief sought in
the counter-application is based on Ms M’s alleged joint and
several liability for the indebtedness of
the joint estate arising
out of the Settlement entered into by Mr M that was made an order of
court.
38.
The counter-application
is not made conditional on the success or failure of the application
for rescission: in the counter-application
the creditor stands by its
submission that the rescission application is without merit. It
asks the court, in effect retrospectively,
to make an order declaring
Ms M to be liable jointly and severally with Mr M and the CC under
the Settlement that was made an order
of court on 6 May 2015.
It lists a new amount of indebtedness in this regard: the amount of
indebtedness is now R98 787.
13, and no longer the amount cited in
the Settlement and in the execution application. The creditor
gives no explanation
for this new amount of indebtedness in the
papers filed in the counter-application, and Ms M takes issue with
this. The creditor
further seeks to have Ms M cited in the writ
of execution authorising the sale of the Bushkoppies property.
39.
It is not clear from
the founding affidavit quite what the relationship is envisaged to be
between the counter-application
and the rescission application,
particularly in the event that, as has now occurred, the rescission
application is granted.
The effect of the execution order being
rescinded is that the execution application remains open for
determination, and Ms M is
now entitled to file an affidavit opposing
the application. One of the defences foreshadowed in her
rescission application
was that no judgment debt was ever made
against her. The purpose of the counter-application seems to be
to circumvent the
consequences of Ms M succeeding in her rescission
application by asking the court nonetheless to grant the very order
that was
absent when the creditor instituted its execution
application. The creditor does this in circumstances where it
does not
abandon or withdraw its execution application.
Instead, it seeks to avoid the consequences of rescission by applying
for relief that ought properly to be determined in the execution
application. In my view, this is an improper basis upon
which
to approach the court.
40.
There are further
difficulties with the counter-application. The
counter-application is filed under the same case number as
the
original application for the winding up of the CC. As I have
already indicated, Ms M was never properly joined in the
proceedings
that led to the execution order. This is one of the reasons why
that order was open to rescission. The
counter-application
simply seeks to circumvent this fundamental procedural flaw by
fashioning the declaratory relief sought in
the form of a
counter-application to an application (the rescission application)
brought by Ms M herself. The fact of the
matter is that Ms M
was placed in the position of having to seek a rescission precisely
because, among other things, the creditor
obtained an order of
executability without properly joining her, as the owner of the
property, to the proceedings. It would
be improper, in my view,
for the court to overlook this fundamental procedural irregularity by
entertaining the counter-application
on the basis that the joinder
issue is irrelevant because the creditor is simply responding to Ms
M’s application.
41.
There is also the not
insignificant fact that there is no proof that Mr M was ever served
in the counter-application, although he
is cited as a respondent.
Counsel for the creditor conceded that he could not produce any proof
or make any submissions to
the contrary in this regard. The
failure to serve the counter-application on one of the parties cited
means that the application
is not properly before the court.
42.
There are no facts
placed before the court in the counter-application to establish the
quantum of the debt for which the creditor
seeks to have Ms M
declared liable. The Settlement records a debt of R167 787.13,
yet the creditor wants an order that Ms
M is liable to it under the
Settlement in an amount of R98 787. 13. No explanation is given
as to how this amount is arrived
at. Ms M disputes the amount
of the indebtedness claimed for this reason, and correctly so in my
view. This in itself
is sufficient to deny the creditor the
relief it seeks in the counter-application.
43.
There is a further
problem with the counter-application: the creditor does not
only seek to obtain a money judgment against
Ms M for the Settlement
debt, but it also seeks to have Ms M cited in the writ of execution.
It is not clear from the founding
affidavit in the
counter-application whether or not the creditor seeks a new order of
executability. In essence, however,
given the fact that I have
ruled that the execution order must be set aside, it follows that a
new order of executability will
have to be made in order to secure a
writ of execution and thus to give effect to the relief that the
creditor expressly seeks
in the counter-application.
44.
Since the original
executability order was granted (which order has now been set aside),
and following on a long line of cases dealing
with the protection of
the right to adequate housing in the context of executions against
the primary residences of judgment debtors,
the Uniform Rules of
Court have been amended to give practical effect to that protection.
45.
Rule
46A now governs the circumstances in which an order of executability
may be made against Ms M’s property. This
rule applies:
“Whenever an execution creditor seeks to execute against the
residential immovable property of a judgment debtor”.
[7]
Further, a court considering an application for an order of
executability must, among other things, consider alternative
means of
settling the judgment debt other than executing against the primary
residence. A court may not authorise execution
unless, having
considered all relevant factors, it considers that execution is
warranted.
[8]
Various procedural obligations are placed on the judgment creditor
under Rule 46A in terms of what it must file as part of
its
application for an order of executability.
[9]
Presumably because the counter-application was filed in 2016, long
before the Rules were amended, it does not comply with
these new
prescripts. The fact remains, however, that if the creditor
wishes to succeed now with an order permitting it to
execute against
Ms M’s property, it must comply with these requirements.
Further, any decision by the court must be
in accordance with Rule
46A as it now stands.
46.
The creditor does not
address these issues in its counter-application, not even by way of
supplementation of its original founding
affidavit in that
application. This demonstrates, in my view, that the creditor
did not properly think through the counter-application,
and its
relationship with the rescission application. The creditor
failed to appreciate that if the rescission application
was granted,
the original writ of execution would fall away, and a fresh order of
executability would have to be obtained before
Ms M could be
“inserted” (which is the terminology used). The
creditor also failed to appreciate that in considering
whether or not
to grant an order of executability, the court would be guided by the
requirements now laid down in Rule 46A.
47.
These considerations
are not merely of procedural importance. They have great
material significance for Ms M. The consequence
of the
counter-application is that she stands to lose her primary
residence. She has constitutional rights that require
protection in these circumstances. This is particularly so in
the present case where Ms M did not incur the debt in the first
place; the debt was not incurred to fund the purchase of the
property; the Settlement made provision for an alternative means of
recovering the debt (viz. the transfer of the two properties that are
still registered in the name of the CC); while the CC is
in
liquidation, it is not clear what steps the creditor has taken to
seek to recover its debt from the principal debtor’s
estate; Ms
M is now the sole owner of the property and, as a pensioner, she is
reliant on it as her primary residence. These
are circumstances
that the court is enjoined to consider and properly weigh before it
can lawfully declare Ms M’s property
to be executable. I
would be failing in my obligations in this regard were I to consider
granting the creditor the relief
it seeks in the counter-application
in the circumstances prevailing in this case.
48.
For all of these
reasons, I find that the counter-application is ill-founded, and that
the creditor is not entitled to the relief
it seeks.
ORDER
49.
I make the following
order:
1. The order granted by
Vally J under case number 2015/14095 on 8 March 2016 is hereby
rescinded.
2. The respondent in the
rescission application is ordered to pay the costs of the rescission
application.
3. The
counter-application by the respondent in the rescission application
is dismissed with costs.
__________________________________________
R M
KEIGHTLEY
JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Date
Heard
: 10 SEPTEMBER 2018
Date of
Judgment
: 09
OCTOBER 2018
Counsel for
the Applicant : N STRATHERN
Instructed
by
: KAREN SHAFER ATTORNEYS
Counsel for
Respondent : LOUW
Instructed
by
: HUTCHEON ATTORNEYS
[1]
Nedbank
Ltd v Van Zyl
[1990] ZASCA 12
;
1990
(2) SA 469
(A) at 476 J - 477C
[2]
Nedbank
Ltd v Van Zyl
,
op
cit
.
The court did not find it necessary to express any view as to the
precise nature of the post-nuptial liability of the
spouses for
community debts. However, in
BP
Southern Africa (Pty) Ltd v Viljoen en ‘n Ander
2002 (5) SA 630
(OPA) at 637E, the court appeared to endorse this
view by finding that the wife in that case was liable for “at
least the
half” of the communal debt in those circumstances.
[3]
2013 (2) SA
187
(SCA) at para [24]
[4]
Breedenkamp
v Comax Wholesalers (Pty) Ltd
1965 (2) SA
876
(C) at 879B
[5]
Absa
Bank Limited v Mokebe; Absa Bank Limited v Kobe; Absa Bank Limited v
Vokwani; Standard Bank of South Africa Limited v Colombick
and
Another
[2018]
ZAGPJHC 487 (12 September 2018)
[6]
Breedenkamp
v Comax Wholesalers (Pty) Ltd
,
above, at 879C
[7]
Rule 46A(1)
[8]
Rule
46A(2)(a)(ii) & (b)
[9]
See Rule
46A(5)