About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 178
|
|
Nkanyani v Nedbank Limited and Others (20832/12) [2017] ZAGPPHC 178 (14 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 20832/12
DATE:
14/3/2017
REPORTABLE:
NO
OF
INTERE,j,HO OTHERS
JUDGES:
NO
In
the matter between:
MBAZIMA
JOSEPH
NKANYANI
APPLICANT
and
NEDBANK
LIMITED
1
ST
RESPONDENT
MMOLEDI
ADAM
2
ND
RESPONDENT
THE
REGISTRAR OF
DEEDS
3
RD
RESPONDENT
JUDGMENT
RANCHODJ:
Introduction
[1]
The applicant seeks an order setting aside the
sale-in-execution of certain immovable property described as
Erf
[...] Thulani Township, Dobsonville ('the property') pursuant to its
sale by the Sheriff of the High Court on the instructions
of the
first respondent. The applicant was previously the owner of the
property.
[2]
The property was
purchased by the first respondent at a sale-in execution and it
then sold it to the second respondent. The
applicant therefore also
seeks a setting aside of the transfer of the property into the name
of the second respondent. The second
respondent has not entered
an appearance.
[3]
The applicant also seeks
an order for costs against the first respondent.
[4]
In the
alternative
,
the applicant seeks an order compelling the first respondent to tax
its bills of costs and to account to the applicant for the
money
received from the sale-in-execution together with an order for costs
of the application.
Background
[5]
The applicant says he
purchased the property for R5 824.00 from the Gauteng Provincial
Government on 2 April 2000 and it was subsequently
transferred into
his name on 3 March 2003. The property is colloquially known as an
'RDP house'. There was no mortgage bond registered
over the property.
[6]
On 14 March 2007, the
applicant purchased an lnyathi 2.2
l
motor vehicle for which he obtained finance from the first
respondent. The amount of the loan was R174 838.56, which included
finance charges as the vehicle was purchased on
the
basis of
an
Instalment Sale
Agreement.
[7]
The applicant says he
"made payments to the first respondent but unfortunately fell
ill
and
could no longer work and consequently fell into arrears with the
re-payments." He does not say when he fell
ill
nor how much he
had
paid
until then.
[8]
Applicant returned the
motor vehicle to the first respondent. He also does not say when he
returned the vehicle. He was told that
the vehicle would be sold and
the proceeds set off against the balance owing by him. The applicant
says he assumed that his debt
had been settled in full as he did
not hear from the
first
respondent again after he
returned the vehicle.
[9]
It
is common cause or not in dispute that the vehicle was indeed sold by
the first respondent. What is in dispute is whether the
first
respondent properly accounted to the applicant in this regard. I will
revert to that aspect presently.
[
10]
The applicant
says
further that he also does not recall having received the summons in
this matter and was 'amazed' to
find that on 6 March 2012 his furniture had been attached by the
Sheriff and that the Notice of
Attachment did not have a case number,
not the names of the parties nor even the name of the court from
which it was issued. His
furniture was removed and he believes it was
sold in execution.
[11]
The summons in the present matter was issued only on 16 April 2012
and service affected on 20 April 2012 by affixing to the
principal
door - which is after attachment of applicant's goods on 6 March
2012. The first respondent says the attachment of the
applicant's
goods and possibly a sale in-execution must be in relation to a
different matter in which the first respondent
was not a party. I
agree. Hence that warrant of execution and attachment are not
relevant in this matter.
[12]
Insofar
as the present matter is concerned, as I said, the summons was issued
on 16 April 2012. The applicant says during August,
2014 he received
a warrant of execution in terms of which the property was attached by
the Sheriff. However, says the applicant,
the defendant cited therein
is a Josef Erasmus Labuschagne and not himself. The affidavit in
support of the application for
a
warrant
of
execution
similarly had Mr Labuschagne's name in the
heading
instead of
that
of
the
applicant.
[13]
The
applicant raises a further issue and that is that when the later
affidavit was filed by the first respondent's attorney to rectify
the
incorrect heading it appears that the second page of the earlier
affidavit was attached to the new first page which reflected
the
correct defendant, namely, the applicant.
A
comparison of the two second pages show that they are identical in
that
the respective signatures of the deponent and that of the
commissioner of oaths are identical on the two pages and appear in
e
xactly the same
place in
relation
to the typed portions above which the signatures appear.
[14]
It is highly improbable that if the later affidavit was sworn to
before the same commissioner of oaths that their signatures
would
appear in exactly the same way and at exactly the same place as in
the earlier affidavit.
[15]
The first respondent does not pertinently deal with this issue except
to say that when it became aware of the error in the
names it
rectified it. This rather vague and general response is to be
deprecated. It seems to me that in all probability when
the first
respondent's attorneys realised the mistake they merely substituted
the first page of the affidavit with one containing
the correct
heading. The question that arises is whether it affected the validity
of the warrant of execution that was issued.
[16]
The content of the substituted page is exactly the same as that in
the earlier one. It is only the incorrect name in the heading
that
was changed. It could be argued that the reference in the contents of
the affidavit to Labuschagne in stead of the applicant
means the
deponent confirmed the wrong party to have been indebted to the first
respondent. That is indeed so and the prudent thing
the first
respondent's attorney should have done was to file another affidavit
explaining the error rather than merely substitute
the first page.
Having said that I do not think it detracts from the material facts
i.e.
inter a/ia,
the
case number; the description of the property; the amount of the
judgment debt and when judgment was obtained.
[17]
In my view, the warrant of execution should not, in the circumstances
of this case, be set aside for that reason. The
warrant of
execution obtained
after
rectification of the name of the defendant or judgment debtor was
served on 8 September 2014 on an occupant of the premises,
i.e. a Mr
Maluleka.
[18]
In the light of these facts it could not be said, as the
applicant contends, that the sale in execution was
based on the
incorrect warrant of execution which was served on him in August
2014. The correct writ of attachment was served on
the applicant on 8
September 2014 and the sale in-execution took place thereafter.
[19]
The next arrow in the applicant's bow is that the Sheriff's
nulla
bona
return in respect of movable property cannot be
correct. He disputes the Sheriff's return of service wherein it is
staed that he
could not find any attachable assets to satisfy the
judgment debt. He also questions how the Sheriff could say in the one
and the
same return of service "Reason for non service"
which means there was no service and then also say he renders a
null
bona
return.
[20]
It is necessary to quote the Sheriff's comments in full:
"REASON FOR NON-SERVICE:
That on 27
th
day of June 2014 at
10:15 at [...] BLOCK
[…], DOORNKOP, DOBSONVILLE, ROODEPOORT the WARRANT
OF
EXECUTION could not be executed as the
defendant was taken to his homeland in Limpopo as he was very ill as
informed by Mr Maluleke,
occupant cell no: 079-856-0320.
No attachable assets could be found to
satisfy the judgement debt.
I THEREFOR RENDER A NULLA BONA RETURN
AND STATE THAT THE EXECUTION DEBTOR HAS NO ATTACHABLE ASSETS AT THIS
GIVEN ADDRESS."
[21]
It seems to me that what the Sheriff is saying is that as the
applicant was not at the premises he could not serve the writ
on him
hence the reason for non-service. The Sheriff says he could find no
attachable assets to satisfy the judgment debt. That
clearly implies
that he searched for attachable assets and the applicant's
contentions that the return of service does not state
that he
asked Mr Maluleke to point out property belonging to the applicant
nor what steps he took to ascertain who owned the property
are all
speculative. There is also no confirmatory affidavit from Mr Maluleke
in this regard.
[22]
But what is important is
that the applicant says that all his movable assets were previously
attached by what appears to be a different
creditor and probably sold
in execution. Hence the probabilities are that he had no movable
assets for the Sheriff to attach. He
in fact admits that, as he put
it, most of the furniture was lent to him by his son.
[23]
Yet another arrow strung
to the applicant's bow is that he was not aware of the
sale-in-execution of the (immovable) property. This
can clearly not
be the case. He was represented by attorneys Magezi Mabuyangwe at
least after the property was attached. This is
apparent from the
attorney's letter dated 4 November 2014 (the sale took place on 7
November 2014) in which
attorney
Mabuyangwe
states:
'DEAR SIR/MADAM
RE: STAY OF WARRANT OF EXECUTION:
IMMOVABLE PROPERTY NEDBANK/NKANYANE MBAZIMA JOSEPH
REF: 43138440001
The above matter refers and kindly be
advised that we act on behalf of our client Mr Mbazima Joseph
Nkanyane.
Our instructions are that he is the
indebted to your client Nedbank limited in the amount of the R61
467.88 [sixty one thousand
four hundred and sixty seven and eighty
eight cents].
Further to our instructions is that he
acknowledges same.
We confirm further that his property
is about to be auctioned on the 07
1
h
day of November 2014.
We therefore request that the
execution of his property be stayed so as to arrange settlement of
the debt or pending settlement.'
[24]
The applicant further
asserts that it was not clear from the condition of sale-in-execution
whether it was to
be
held on
the
7th
or 9th
of
November 2014 as the
'7'
was written in manuscript
above the typed '9' and the latter was not properly
deleted.
[25]
The notices in the
Government Gazette and the Citizen newspaper reflect the correct
date, that is, 7th
November 2014. More
importantly, insofar as the applicant is concerned he must have been
aware that it was arranged for the 7th
and not the 9th as his
attorney clearly says so in the abovementioned
letter
addressed
to
the
first
respondent's attorneys.
[26]
The applicant also
alleges that a condition of the sale-in-execution was that bids were
to be made in increments of not less than
R150 000 above the
preceding bid. The first respondent itself bid at the sale as did the
second respondent who was apparently the
only other potential buyer
there. The property was sold to the first respondent for R140 000
(who thereafter sold it to the second
respondent for R131
000).
The applicant contends
that the sale to the first respondent was invalid because clause 2 of
the conditions of sale states that
no bid of less than R150 000 in
value above the preceding bid will be accepted. Hence, so contends
the applicant, the sale for
R140 000 was invalid.
[27]
The first respondent says
it had the right to waive the condition as no bids were forthcoming
for the amount of R150 000. During
argument. applicant's attorney
seems to have accepted this submission by first respondent's counsel
but argued that the property
was sold at below its market value.
However, these were mere assertions of the applicant with no
professional valuator's report
to back them up. The first respondent
has provided a professional valuator's report which places the market
value of the property
at R70 000.
Comparable sales of two
similar properties about a
year earlier were R50 000
and R30 000 respectively. The applicant's assertion that the property
(an RDP house) is worth about R250
000 without any objective
valuation in
support
cannot
in
the
circumstances be
accepted.
[28]
In my view, the applicant has failed to make out a case for the
relief he seeks in the main claim.
[29]
I turn then to the alternative claim.
[30]
It is clear from the papers that the first respondent had not
rendered a proper account to the applicant for the proceeds of
the
sale of the motor vehicle and the sale-in-execution of the immovable
property to date. Counsel for the first respondent conceded
as much.
Counsel also conceded that the purported account attached to the
answering affidavit was incomprehensible and that a proper
account
should be rendered by the first respondent to the applicant. That it
has failed to do so up to now is unconscionable conduct
on its part.
[31]
There is the question of costs.
[32]
The applicant has partially succeeded and that only in respect
of a claim for a proper accounting. The first respondent
has
substantially succeeded in resisting the claim for setting aside the
warrant of execution and transfer of the property to the
second
respondent. However, it is apparent that the first respondent's
attorneys did not provide a proper explanation regarding
the error in
the names of the judgment debtor. If the first respondent had
properly accounted to the applicant immediately after
the
sale-in-execution in 2014 perhaps much of his litigation could have
been avoided. An appropriate order would be that each party
bear his
or its own costs in relation to the main claim and the respondent pay
the costs of the alternative claim. The matter fell
within the
jurisdiction of the Magistrate's Court.
[33]
I make the following order:
33.1
The application for
setting aside the sale-in-execution of the property described as
Erf
[...]
Thulani Township, is
dismissed.
33.2
The application for the
setting aside of the transfer of the property registered by the third
respondent from the first respondent
to
the
second
respondent
is
dismissed.
33.3
The first respondent is
ordered to have all legal costs charged in the action taken against
the applicant by it under case number
20832/2012 taxed or assessed by
the relevant Law Society or taxing master of the magistrate's court,
as the case may be, on the
appropriate magistrate's court scale, and
to
pay
any excess monies due to the applicant from the proceeds of the
sale-in execution after deducting the capital amount claimed
in
the warrant of execution together with interest and taxed or assessed
costs.
33.4
There is
no order as
to
costs
of
the
main application.
33.5
The first respondent is
to pay the costs of the applicant in the application
pertaining
to
the
alternative
claim.
__________________
RANCHOD
J
JUFGE
OD THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant
: Attorney
B. Clayton
Instructed
by
: Brian C Clayton & Co
Counsel
on behalf of First Respondent : Adv N. Strathern
Instructed
by
: Aucamp & Cronje
Date
heard
: 6
&
7
March 2017
Date
delivered
: 14 March 2017