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[2018] ZAGPJHC 684
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Absa Bank Limited v Hamid and Others (2009/38858) [2018] ZAGPJHC 684 (26 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2009/38858
In
the matter between:
ABSA
BANK LIMITED
Applicant
and
AHMANTO
HAMID AND OTHERS
Respondent
JUDGMENT
KLAAREN,
AJ:
[1]
In
a judgment of this court dated 3 January 2017, ABSA Bank Limited v
Hamid Ahmanto and Another (38858/09) [2016] ZAGPJHC 355, I
considered
an application by the applicant [ABSA] to declare the respondent’s
immovable property located at Erf 9178 Lenasia
(the Lenasia property)
specifically executable and to authorize a writ of execution against
it. After hearing both parties,
I decided two principal issues,
namely that ABSA had properly made out its case on its founding
papers with respect to the underlying
default judgment but had not
complied with the proviso to Rule 46(1)(a)(ii). As noted in
paragraphs 20-21 of the 3 January
2017 judgment, that proviso stems
from a long line of cases within and beyond this court and provides
special protections and practices
in cases where judgment debtors are
poor and at risk of losing their primary residence, as is potentially
the case here.
While it was ABSA’s case that the property
was not the primary residence of the first respondent Hamid Ahmanto,
I concluded
at paragraphs 24-33 that the papers established a dispute
of fact on this issue.
[2]
I thus ordered the matter set down for the hearing of oral evidence.
Today’s judgment covers that hearing and should
be read with
the 3 January 2017 judgment. The disputed fact that was the
subject of the hearing is whether the Lenasia residence
is the
primary residence of the first respondent. It is the policy of
this Division that a judge who makes an order for referral
for oral
evidence (as distinct from an order for referral to trial) becomes
seized of the matter as a part-heard. After several
attempts at
rescheduling, the hearing was finally held on 2 August 2018.
[3]
At the hearing on 2 August 2018, Attorney Hyde appeared for Mr
Ahmanto and Advocate Ekstein appeared again for ABSA. Attorney
Hyde is an attorney appointed pro bono for this matter. The
counsel who worked with Attorney Hyde on this case to date, including
the counsel who appeared in the 2016 hearing, have also acted pro
bono. Though Attorney Hyde had made efforts which need
not be
detailed here, pro bono counsel was not available for this hearing.
Operating without counsel and without the papers
in the possession of
counsel, Attorney Hyde was thus at somewhat of a disadvantage in this
hearing. However, this feature
was catered for with several
breaks during the hearing for preparation. Further Attorney
Hyde was offered collegial assistance
by and access to the papers of
ABSA’s legal team. Procedural compliance with the 3
January 2017 order was conceded
and was not in issue.
[4]
One preliminary question on which argument was heard concerned recent
practice directives. The two, which must be read
together, are
Practice Directive Number 1 dated 2 May 2018 and Practice Directive
Number 2 dated 28 May 2018. These directives
were made in order
to allow a Full Court of this Division to consider the legal issues
raised by four unopposed applications relating
to foreclosures of
bonds over primary residences where the provisions of the
National
Credit Act 34 of 2005
were applicable.
[5]
Attorney Hyde submitted that to continue the hearing would be
“circumventing the objective of the directives”.
He
thus asked that the hearing be postponed sine die in light of the May
2018 Practice Directives. Advocate Ekstein distinguished
this
matter from those covered in the Practice Directives on the basis
that the only matter not dealt with in this case was the
primary
residence aspect and that the
National Credit Act was
not applicable
to this matter.
[6] In my view, on a
proper interpretation, this matter was indeed not covered by the
Practice Directives. The matter was
part-heard as of the date
of the Practice Directives. Its narrow focus on the primary
residence question may be distinguished
from the broader subject
matter of the cases and the legal issues referred to in the Practice
Directives. As Advocate Ekstein
further argued, even if the
case was covered, there was no prejudice in holding the hearing for
oral evidence. It was on
this basis, noting also the need to
finalize the case and the presence of witnesses that I decided to
continue with the hearing.
Applicant’s
Evidence
[7] The applicant called
one witness, Mr van der Walt, a member of a close corporation working
as a private investigations unit.
His corporation was
sub-contracted by Precision Tracers and Debt Collectors on behalf of
ABSA in mid-2017. He was given sight
of the report compiled in
2015 on behalf of Precision Tracers and was given an instruction to
conduct an investigation relevant
to the first respondent’s
residential property. Mr van der Walt testified that his
conclusion from the information
available to him was similar to the
Precision Tracers report from 2015: that Mr Ahmanto and his
partner (Riana), his daughter
(Sabjee Fahiza), and his daughter’s
two minor children (the family) were not primarily resident at the
Lenasia property (as
had been alleged in para 32 of the answering
affidavit in this case)
[8] In 2017, a member of
Mr van der Walt’s team visited and inspected the Lenasia
property. Mr van der Walt also personally
conducted an
observation at a second property in Ennerdale also registered in the
name of Mr Ahmanto (the Ennerdale property).
Mr van der Walt
testified that he stayed outside the Ennerdale property in a car for
three hours from 5 am to 8 am. The Ennerdale
property had come
to light as the result of investigations conducted for the purposes
of the applicant’s replying affidavit
in the 2016 hearing of
this matter. I was informed that ABSA has now also launched an
application against this second property
of Mr Ahmanto, to declare it
specifically executable and to authorize a writ of execution against
it.
[9] Mr van der Walt
further testified to a conversation that took place in 2017 with Mr
Ahmanto where Mr Ahmanto agreed to meet
Mr van der Walt at the
Ennerdale house, which was a double storey and, in Mr van der Walt’s
opinion, a nicer residence than
the Lenasia property. Mr van
der Walt did not make the meeting since his mandate was then done.
Mr van der Walt concluded
in 2017 that Mr Ahmanto resided at the
Ennerdale property.
[10]
On 1 August 2018 (the day before the oral evidence hearing), Mr van
der Walt also further investigated whether Mr Ahmanto,
his partner,
his daughter and his daughter’s children lived on the Lenasia
property. To do this, Mr van der Walt did
a visual inspection
of the Lenasia property, also speaking with the shop-keeper/tenant
and with a woman at the neighbor’s
house about whether Mr
Ahmanto and the family were resident at the Lenasia property.
He stayed around about thirty minutes
or an hour. He was not
able to have access to the property, other than entering the spaza
shop which forms part of the Lenasia
property and speaking with the
tenant and shop-keeper, Naheem.
[11] With respect to Mr
van der Walt’s interaction with Naheem, during his direct
evidence I asked Mr van der Walt whether
he had spoken to Naheem
about the residence, at the Lenasia property, of the first respondent
and members of his family.
He replied “M’Lord he
wasn’t prepared to answer it and to talk about them, he said
that he was uncomfortable
as Mr Ahmanto was his landlord.”
Respondent’s
Evidence
[12]
After ABSA had closed its case, Attorney Hyde called the respondent,
Mr Ahmanto, to give oral evidence on the disputed issue.
Under
oath, Mr Ahmanto stated he resides at the Lenasia property,
identifying it both by erf number and by street number.
He
stated that, while he had purchased the property earlier, he took
occupation in 2009. Under questioning on direct from
Attorney
Hyde, Mr Ahmanto answered that he had not personally lived at any
address other than the Lenasia property since that time.
[13]
He further stated that the Lenasia property is partitioned and part
was leased to tenants who operated a spaza-shop.
Mr Ahmanto
further stated that the premises were open during the day, attended
by his tenant, the shop-keeper, since he was usually
out working at
odd jobs during day. When asked about his daily routine, Mr
Ahmanto stated: “Well, when I get
up in the morning by
eight o’clock I go out and do some odd jobs because I am
unemployed at present sir.” He
also stated that Naheem,
the tenant and shop-keeper, would accept summonses on his behalf and
hand them to him.
[14]
Mr Ahmanto stated that his partner, child, and his grandchildren left
the premises sometime after he, together with these four
persons,
took occupation in 2009. He stated, “my wife and the
children left for personal reasons.” As discussed
below,
Mr Ahmanto was not precise as to the date when his partner and the
rest of the family moved out, giving a date of 2010 in
his testimony
on direct. When his partner and the rest of the family moved
out, the tenants at the Lenasia property expanded
and took two rooms
in the property, behind the spaza shop.
[15]
With respect to the Ennerdale property, Mr Ahmanto confirmed that
this property was registered in his name, but stated that
neither he
nor his partner and family have ever resided there. Mr Ahmanto
further denied that he ever had a conversation
with Mr van der Walt
or that he ever arranged to meet Mr van der Walt at the Ennerdale
property.
[16] Ahmanto stated that
he was aware of the legal proceedings apparently recently instituted
regarding the Ennerdale property and
that Asif Gani and his family
reside there. Cross-examination confirmed that Mr Ahmanto
acquired the Ennerdale property in
2006 and that it was bought as an
investment. However, Mr Ahmanto also stated that he has sold
the Ennerdale property.
[17] Mr Ahmanto remained
consistent under cross-examination that he primarily resides at the
Lenasia property and that he does not
reside at the Ennerdale
property. However, under cross-examination, he stated that his
wife, child, and her children had
left the Lenasia property in 2012.
Evaluation of Evidence
Presented
[18]
Attorney Hyde argued the reliability of Mr van der Walt was dubious.
However, Attorney Hyde was on firmer ground in pointing
out that the
woman Mr van der Walt spoke to at the neighbor’s residence,
during his brief visit on 1 August 2018, was not
necessarily the
actual neighbor with detailed knowledge of Ahmanto’s residence
status. Of course, this was not the
case with Naheem, with whom
Mr van der Walt also spoke.
[19]
On an assumption of reliability of Mr van der Walt’s evidence,
it is convenient to deal at this point with the issue
of the
purported phone call. Mr Ahmanto denies having a phone
conversation with Mr van der Walt. Taking for the sake
of
argument Mr van der Walt’s evidence, the offer made by Mr
Ahmanto over the phone to meet at the Ennerdale property indicates
a
connection between Ahmanto and the Ennerdale property, but not
necessarily primary residence (or even a lesser degree of residence)
at the Ennerdale property. The connection could also be
consistent with ownership, which Mr Ahmanto does not deny.
[20]
In my view, there is little reason to reject Mr van der Walt’s
evidence and I do not do so. Rather, the limited
extent to
which it and his conclusions assist the applicant’s case on
this issue should be recognized. Mr van der Walt’s
evidence was broadly similar to the evidence presented by ABSA in its
papers. It is indicative but hardly conclusive on the
disputed
issue.
[21]
I have come to a similar conclusion with respect to the evidence of
the returns of service. While Mr Ahmanto was cross examined
at length
on these returns, this exercise elicited little in terms of evidence
beyond that alleged in the papers.
[22]
I now evaluate the evidence of the respondent, Mr Ahmanto. As
Attorney Hyde submitted, Mr Ahmanto has been consistent that
he
resides at the Lenasia property. What is clear from his
evidence is that Ahmanto is the current registered owner of both
the
Lenasia and the Ennerdale property and that Ahmanto has testified
under oath in this proceeding that he resides at the Lenasia
property
and that it is his primary residence. On the whole, further
argued Attorney Hyde, the evidence of Mr Ahmanto was
an adequate
rebuttal of the prima facie evidence of returns.
[23]
Is this evidence reliable and credible? Advocate Ekstein
contended Mr Ahmanto’s evidence should be rejected for
the
reason that he tailored his evidence to suit the situation. She
offered three instances whereby the court could find
in this manner:
first, that under cross-examination, it was stated that the family
moved out in 2012, rather than the year
of 2010 as given in direct;
second, that Mr Ahmanto did not disclose his ownership of the
Ennerdale property during these proceedings;
and third, that in his
affidavit he had stated he was not earning but his evidence in the
hearing was that he was earning a small
income from rental and odd
jobs.
[24]
Attorney Hyde argued that, while the evidence of Mr Ahmanto did
demonstrate an element of confusion, the state of his evidence
should
not be characterized as dishonesty. It may be that, at least in
his client’s view, the odd jobs do not constitute
employment.
Attorney Hyde further argued that his client was confused about the
dates of when his family moved out.
This confusion regarding
dates was evident in numerous instances.
[25]
The issue for decision is not when the family moved out; the issue is
whether the Lenasia property should be regarded, on the
balance of
the evidence presented, as Mr Ahmanto’s primary residence.
The consistent evidence of the respondent is
that it is. Mr
Ahmanto’s evidence is that he usually occupies the Lenasia
residence. Against this must be set
the prima facie evidence of
the returns of service as well as the conclusion of the private
investigator hired by the bank.
[26]
Of course consistent evidence may also be tailored evidence. In
this case, hearing the evidence and cross-examination,
I was not left
with the impression that Mr Ahmanto’s evidence was tailored.
While the evidence was not entirely satisfactory
and the matter is
hardly clear from doubt, on the whole, I accept Mr Ahmanto’s
evidence of his usual occupation at the Lenasia
property. There
was no deviation from this contention and there was no ambiguity
revealed on this point in cross-examination.
His account that
his family moved out and that he remains at the Lenasia property is
objectively plausible and fits the available
evidence. This
seems credible even though the dates for the moving out he has given
indeed appear at best confused (since
on either version (2010 or
2012) there is a discrepancy with his answering affidavit (2015)).
On the narrow question referred
to oral evidence, I was left at the
end of the day with the sense that Mr Ahmanto’s evidence was
credible and reliable.
[27] As part of this
holistic assessment of the evidence, I have also considered the
probabilities of Mr Ahmanto’s version.
His version of
usual occupation after his family moved out appears plausible, noting
also his account of the tenant leasing an
expanded set of rooms.
I also find, making his version more likely, that his income matches
this residence. Mr Ahmanto’s
earnings from odd jobs and
the like (in addition to the rental income from the Ennerdale
property) are consistent with his evidence
of usual occupation of the
Lenasia property, which is not a luxurious one.
The Bearing of the
Evidence on the Issue in Dispute
[28]
Advocate Ekstein contended that, per
FirstRand
Bank v Folscher
2011 (4) SA 314
(GNP); [2011] ZAGPPHC 79 (24 May 2011), even if the
Lenasia property were Mr Ahmanto’s primary residence, Mr
Ahmanto has
an alternative dwelling available to him, the Ennerdale
property. Attorney Hyde made the counterargument that the
application
to foreclose by ABSA against the Ennerdale property means
that it does not constitute alternative accommodation. It is
not
necessary for me to decide this aspect. The question
referred to oral evidence was the narrow one of whether or not the
Lenasia
property is Ahmanto’s primary residence. It is
not the additional question of whether or not alternative
accommodation
is available to him.
[29]
Indeed, it may well be the case that the evidence as developed up to
and in this hearing, if it had been contained in ABSA’s
founding affidavit, would have sufficed for the purposes of
Rule
46(1)(a)(ii).
In particular, it is certainly the case that Mr
Ahmanto’s ownership of the Ennerdale property would constitute
some
part of the legally relevant circumstances required to be set
out in the papers by the Rule. As mentioned above, however,
ABSA’s case in this matter was that the Lenasia property is not
Mr Ahmanto’s primary residence.
[30]
Folscher
is however relevant and determinative in giving content and meaning
to the disputed issue and the question of primary residence.
Folscher
was clear that “execution against a holiday home or a second
house that is not usually occupied by the debtor does not trigger
the
application of the Rule.” A home or a house that is not usually
occupied is not a primary residence.
Folscher
thus equates usual occupation with primary residence.
[31]
In the view I take of the matter, it is relatively difficult for the
bank to overcome the sworn testimony of an owner as to
the owner’s
usual occupation and thus primary residence, at least in a context of
multiple residences and without presenting
specific evidence of the
owner’s usual occupation anywhere else. A private investigative
visit of around an hour at the claimed
and credible residence does
not quite suffice, at least in the circumstances of this case,
without some further evidence establishing
usual occupation elsewhere
or otherwise undermining the respondent’s contention.
[32] I thus find on a
balance of probabilities and in terms of the
Folscher
judgment
that the Lenasia property is Mr Ahmanto’s primary residence.
As such,
Rule 46(1)
(a)(ii)’s special practices and protections
as detailed in my earlier judgment are triggered. ABSA ought to
have included
greater information in its papers concerning the
personal circumstances of the first respondent than it did. I
thus order
that the application be dismissed.
Costs
[33]
With respect to costs, the usual rule is that costs follow the
result, with discretion for the judge with respect to the particulars
of the case and particularly with respect to success. Both
parties were successful on one of the two main issues argued and
decided in the matter at the 2016 hearing on the opposed motions
roll. I therefore propose to make no order of costs in respect
of that hearing.
[34] This leaves the
matter of costs for the hearing of oral evidence, where Mr Ahmanto
has been successful. This case deviates
from the more usual one
in that the first respondent’s representation has been done on
a pro bono basis. Attorney Hyde
has represented Mr Ahmanto in
terms of
Rule 40.
[35]
The fact that the first respondent was represented on a
pro
bono
basis is however no reason in principle not to award costs.
While the first respondent will not and ought to be compensated
in
this
pro
bono
case for the work that they were willing to and did undertake without
the incentive of certain payment. See
Kuhudzai
and Another v Minister of Home Affairs (11034/16)
[2018] ZAWCHC 103
(24 August 2018); Zeman v Quickelberge and Another (C45/2010) [20
10]
ZALC 122
; 2011) 32 ILJ 453 (LC) (23 August 2010). See also
section 92 of the Legal Practice Act (28 of 2014), addressing the
recovery
of costs by legal practitioners rendering free legal services.
[36] In the circumstances
of this case, I thus propose to order costs on the usual
party-and-party scale for the successful party,
the first respondent,
but limited to the hearing of oral evidence.
ORDER:
[37] I make the following
order:
1.
The
application is dismissed.
2.
The
applicant must pay the legal team of the first respondent costs on a
party-and-party scale for the costs associated with the
hearing of
oral evidence. No order is made with respect to costs
associated with the 2016 motion hearing.
__________________
J
KLAAREN
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing: 2
ND
AUGUST 2018
Judgment
Delivered: 26
th
November 2018
APPEARANCES
On
Behalf of the Applicant: ADV E EKSTEEN
Instructed
By: JAY MOTHOBI INCORP
011 268
3500
9
ARNOLD ROAD
ROSEBANK
2196
IN
PERSON: MR KEVIN HYDE