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[2018] ZAGPJHC 631
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Frazenburg and Another v Rendall and Others (2018/11948) [2018] ZAGPJHC 631 (12 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2018/11948
In
the matter between:
FRAZENBURG,
WILLEM
First
Applicant
FRAZENBURG,
VENESSA LEYSTTELL
Second
Applicant
and
RENDALL,
GEORDIE-GLENN
First
Respondent
THE
REGISTRAR OF DEEDS – JOHANNESBURG
Second
Respondent
STANDARD
BANK OF SOUTH AFRICA
Third
Respondent
Coram:
Lagrange AJ
Heard
:
25 October 2018
Delivered
:
12 November 2018
Summary:
Vindication – fixed property sold in execution by
bank despite agreement between mortgagee and bank on repayment of
arrears – buyer purchasing property in good faith – order
rescinding sale in execution only obtained after transfer
to buyer –
condonation application filed late in face of court order with
perfunctory justification – buyer not entitled
to costs.
JUDGMENT
LAGRANGE,
J
Background
[1]
The former owners of the property in
question (‘the Frazenburgs’), brought this application to
rescind a previous sale
in execution of their house in Westbury by
their mortgagee bank (‘Standard’) to Rendall (‘Rendall’)
and
to restore their title to the property. Standard did not oppose
the relief sought. However, in the event the sale of the property
in
execution, which it had set in motion, was nullified it sought to be
restored to its position as mortgagor before the sale and
transfer.
[2]
Previously, this matter was set down on the
unopposed role on 17 April 2018, but Rendall put in a late appearance
and obtained leave
to file an answering affidavit by 8 May 2018.
Notwithstanding the court order, the answering affidavit was
delivered a week late,
though on 10 May 2018 Rendall’s
attorneys did serve a copy of the affidavit by email on the
Frazenburgs’ attorney,
two days’ later than prescribed by
the court order. Rendall applied for condonation for non-compliance
with filing its answering
affidavit, which is dealt with first.
Condonation
of the late filing of the answering affidavit
[3]
Rendall gave a poor excuse for
non-compliance with the court order, namely the busy schedule of
himself and his attorney.
Clearly the court order was not a
priority to them. Though this is not a justifiable excuse, the delay
was short and the prejudice
to the Frazenburgs’ not significant
but the prejudice of not admitting the answering affidavit would be
decisive as it sets
out a strong defence to the Frazenburg’s
claim. Accordingly, I am inclined to condone the late filing of the
answering affidavit,
but Rendall’s and his attorney’s
disrespectful attitude to the court, as evidenced in the condonation
application,
will be dealt with under costs.
Background
[4]
In 2009 the Frazenburgs acquired the
property subject to a mortgage bond issued in favor of Standard.
[5]
On 31 August 2016 a default judgment in
favour of Standard Bank in the amount of R109,000-00 was handed down
and the Frazenburgs’
property was declared executable.
[6]
It is undisputed that after default
judgment was obtained the Frazenburgs entered into an agreement with
the Standards’ attorneys
in terms of which they undertook to
repay the debt within a period of six months. Payments were
accordingly made from 13 November
2016 until 3 July 2017 and copies
of proof of payment were provided to the Standard’s attorneys.
[7]
However, in July 2017 the Frazenburgs
received a notice from Rendall’s attorneys calling on them to
vacate the property. The
letter alerted them that the property had
been sold in execution on 28
th
of March 2017 to Rendall (‘Rendell’), during the time
they were busy paying off their arrears to Standard in terms
of the
agreement with Standard’s attorneys.
[8]
On 13 December 2017 the Frazenburgs
successfully rescinded the original default order, which had allowed
Standard to proceed with
the sale in execution. Subsequently, in
January 2018 the Frazenburgs notified the bank and Rendall of the
order and asked Rendall
to consent to reversing the sale.
[9]
Rendall refused to agree to reverse the
sale. He was only willing to do so if the Frazenburgs first
compensated him for the damages
he would suffer if the sale was to be
reversed. Accordingly he claims that the application should be stayed
pending a claim of
damages to be instituted by himself. He also
insists that he is entitled to proceed with the eviction applicants
from the property.
Merits
[10]
The essential legal question for
determination is whether the Frazenburgs are entitled to an order
compelling Rendall to transfer
the property back to them, in
circumstances where Rendall alleges he was a
bona
fide
s purchaser of the property in
circumstances where he had already taken transfer of the property by
the time order allowing the
sale in execution was rescinded.
[11]
Where
transfer has already been effected by the time the judgment
permitting sale and execution is rescinded, the former owner of
the
property is not entitled to have ownership of the property restored
to them by the
bona
fide
buyer unless the real underlying agreement of sale is invalid.
[1]
[12]
Although the Frazenburgs alluded to another case
involving Rendall in which he was held to have acted in bad faith,
they did not
make this allegation in the founding affidavit and have
not set out a basis why Rendall should be held to have acted in bad
faith
in this case. Also, the fact that the letter they received in
July 2017 calling on them to vacate the premises was dated 26 January
2017 is not persuasive evidence of bad faith on his part.
[13]
The Frazenburgs made no
allegation that the sale was void ab initio by reason of fraud or
that it was invalid because the sheriff
had not attached the property
in compliance with Rule 46 of the Uniform Rules of Court. They appear
also not to have sought to
rely on sections 129(3)(a) and (b) read
with s 129(4) of the National Credit Act
[2]
to reinstate the credit agreement before the sale in execution took
place, as they might have.
[3]
[14]
In the circumstances, the applicants have not laid any basis for
reversing the sale in execution of the property to Rendall.
Costs
[15]
As mentioned above, Rendall’s conduct in the late filing of his
answering affidavit, though condoned, was disrespectful
of the court
and as a mark of the court’s displeasure he will not be
entitled to his costs of opposing the application.
Order.
1.
The application is dismissed.
2.
The parties are all liable for their own costs.
_______________________
Lagrange
J
Acting
Judge of the High Court
APPEARANCES
Applicants:
B.
Gradidge instructed by Nadeem Mahomed Attorneys.
First
Respondent:
R.
Bhima instructed by Swanepoel Van Zyl Attorneys.
[1]
See
Knox NO v Mofokeng and
Others
2013
(4) SA 46
(GSJ) at 58 para 24.
[2]
Act 34 of 2005.
[3]
See
Firstrand
Bank Ltd v Nkata
2015 (4) SA 417
(SCA) at 424, para 23.