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[2017] ZAKZPHC 12
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St Charles College v Du Hecquet De Rauville and Others (14307/15) [2017] ZAKZPHC 12; [2017] 3 All SA 358 (KZP) (12 April 2017)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
Case No:
14307/15
In
the matter between
ST
CHARLES COLLEGE
APPLICANT
and
HENRY
LOUIS ANDRE DU HECQUET DE RAUVILLE
FIRST RESPONDENT
GLERYL
INGRID DU HECQUET DE RAUVILLE
SECOND RESPONDENT
STANDARD
BANK SA
LIMITED
THIRD RESPONDENT
THE
MINISTER OF BASIC EDUCATION
FOURTH RESPONDENT
JUDGMENT
Delivered
on: 12 April 2017
JAPPIE
JP
[1]
The Applicant, St Charles College, is an independent school as
defined in the Schools Act 84 of 1996. The Applicant
was
granted summary judgment in its favour against Henry and Gleryl
Du Rauville who are the First and Second Respondents
(the
Respondents). The order reads as follows:-
“
1.
Summary Judgment is granted for an amount of R428 278.09
together with said amount
of interest on aforesaid sum at the rate of
15.75% per annum compounded monthly in arrears from 1
st
September 2015 to date of final payment.
2.
Plaintiff’s claim of the amount of R198 832.00 is in
dispute against the
First and Second Respondents and is referred to
the Expedited Roll.
3.
Cost of suit on the scale as between attorney and own client.”
[2]
Subsequently
and on
20
th
June 2016 the Applicant obtained default judgment from the
registrar against the Respondents which judgment reads as follows:
“
a)
Payment of the sum of R198 832.00 (one hundred and ninety eight
thousand eight
hundred and thirty two rands);
b)
interest on R198 832.00 (one hundred and ninety eight thousand
eight hundred and
thirty two rands) at the rate of 15.75% per annum
from 1
st
September 2015 to date of final payment, calculated daily and
compounded monthly;
c)
Cost of suit on the scale as between attorney and own client.”
[3]
Pursuant to obtaining summary judgment but prior to obtaining default
judgment the Applicant’s attorneys caused to be
issued a
warrant of execution for the moveable assets of the Respondents.
On the 27
th
May 2016 the Sheriff of the High Court, New
Hanover, served the warrant of execution on the Respondents who were
unable to satisfy
the warrant on demand. The Sheriff’s
return reads as follows:
“
On
this 27
th
Day of May 2016 I served a Warrant of Execution on the first and
second defendants Mr and Mrs Du Rauville at [....] S. R., Albert
Falls, KwaZulu-Natal.
The
defendants were unable to satisfy the warrant on demand and I duly
attached the following moveable assets as per inventory…”
[4]
The Sheriff was able to attach moveable goods totalling the sum of R6
200.00. This amount falls significantly short when
compared to
the combined judgment debt of R627 110.09.
[5]
The cause of the Respondents indebtedness stem from tuition fees and
other ancillary charges in respect of their sons Eric and
Jason.
The tuition and ancillary fees were incurred during 2014 and 2015.
Moreover the Respondents entered into a written
agreement in term of
which they acknowledge their indebtedness and agreed to terms as to
how they would discharge their indebtedness.
[6]
Eric and Jason matriculated in 2015 and the Respondents have no other
minor children of school going age. Both the Respondents
are in
full time employment.
[7]
It is the Applicant’s case that the only means it has of
recovering and satisfying the judgment debt is for it to attach
and
sell in execution the immovable property owned by the Second
Respondent. Hence the present application.
[8]
The Second Respondent is the registered owner of the immovable
property described as Rem and Portion 3 of Erf [....] A. F.,
Pietermaritzburg –
Registration Division FT Held by Deed of Transfer no.: [....]
hereinafter referred to as “the immovable
property”.
The immovable property is situated at [....] S. R., Albert Falls,
KwaZulu-Natal. The property
has two mortgage bonds
registered over it in favour of Standard Bank Limited who is the
Third Respondent in this Application.
[9]
The Applicant brings this application in terms of Rule 46(1)(A) of
the Rules. The Rule reads as follows:
“
No
writ of execution against the immovable property of any judgment
debtor shall issue until –
i)
a
return shall have been made of any process which may have been issued
against the moveable property of the judgment debtor from
which it
appears that the said person has not sufficient movable property to
satisfy the writ;”
[10]
It is common cause that the Applicant has obtained a return which
indicates that the Respondents are not in possession of sufficient
movable property to satisfy the writ for the judgment debt. It
is clear that the Applicant in the ordinary cause would be
entitle to
a writ against immovable property owned by either or both
Respondents.
[11]
In deciding whether or not a court should declare the primary
residence of a judgment debtor who is a natural person executable
the
court ought to consider all circumstances relevant to the particular
case. In
Jafta
v Schoeman; Van Rooyen v Stoltz
[2004] ZACC 25
;
2005
(2)
SA 140
CC
the Constitutional Court gave the following examples of such
circumstances:-
a)
Whether the rules of court have been complied with;
b)
whether there are other reasonable ways in which the judgment
debtor can be paid;
c)
whether there is any disproportionality between execution and other
possible means to exact payment of the judgment debt;
d)
the circumstances in which the judgment debt was incurred;
e)
attempts made by the judgment debtor to pay off the debt;
f)
the financial position of the parties;
g)
the amount of the judgment debt;
h)
whether the judgment debtor is employed or has a source of income to
pay off the debt; and
i)
any other factors relevant to the particular case.
[12]
In opposing the relief sought, the Respondents contend the following:
i)
If
the immovable property is sold at a sale in execution the property
will not be realised to its best advantage as the property
would be
the subject of “a forced sale”. This course would
involve additional costs to the Respondents.
ii)
The
property is the family home of the Respondents and accordingly, there
is much sentimental attachment thereto.
iii)
The
Respondents intend paying off the outstanding judgment debt in full
and
iv)
The
bond repayments on the property to Standard Bank is less than the
Respondents will be able to rent property for in the greater
Pietermaritzburg area.
[13]
The Respondents have argued that it is unconstitutional that
the dwelling of a parent of a learner at an independent
school may be
attached to recover tuition fees, while the dwelling of a parent of a
learner at a public school may not be so attached.
They contend
that this constitute differential treatment, and that there are no
grounds which justify such differential treatment.
Accordingly, such
differential treatment constitute unfair discrimination against
parents such as them who have of children
attending independent
schools.
[14]
Their position is set out in their notice in terms of Rule 16 A which
frames the constitutional issue as follows:
“
Section
41
(6) of the
South African Schools Act 84 of 1996
precludes a public
school from attaching the dwelling in which a parent of a learner
resides for the purpose of enforcement of
the payment of school fees
owed to the school for which the parent is liable.
However
there is no equivalent legislative provision that precludes and
independent school from attaching the dwelling in which
a parent of a
learner resides for the purpose of enforcement of the payment of
school fees.
The
fact that the dwelling in which a parent of a learner at an
independent school resides may, on the face of it, be attached by
the
school for the purposes of enforcement of the payment of school fees
while the dwelling in which a parent of a learner at a
public school
resides may not be attached by the school for the purpose of
enforcement of the payment of school fees constitute
differential
treatment of different categories of parents.”
They
therefore contend that:
i)
the
said differential treatment is arbitrary and irrational and the
distinction that has been made is unrelated to any legitimate
government purpose;
ii)
there
are no grounds which justify differential treatment and;
iii)
accordingly,
such differential treatment therefore constitute unfair
discrimination against the parents of learners at independent
schools.
[15]
Counsel for the Respondents have argued that I ought not to declare
the immovable property executable. He submitted that
the
factors mentioned in the opposing affidavit ought to persuade
the Court to exercise its discretion in the Respondents’
favour. It was submitted that if the Court takes the factors
set out in the opposing affidavits into account, it ought to
refuse
the relief sought by the Applicant.
[16]
The main trust of the Respondents’ argument was the
constitutional point. It was submitted that to grant an order
declaring the immovable property executable would in the
circumstances of this case, be a violation of the Respondents’
right
to
equality. The Respondents contend that they
ought
to
be
placed on an equal footing with those parents of children who attend
public schools.
[17]
Section 41
(6) of the
South African Schools Act 84 of 1996
provides
as follows:-
“
A
public school may not attach the dwelling in which a parent resides.”
That
is to say the section prohibits a public school from attaching the
dwelling of a parent of a learner for the purpose of enforcement
of
the payment of school fees. Whereas the dwelling in which a
parent of a learner at an independent school such as the Respondents
reside may be attached by the school for the purpose of enforcement
of the payment of school fees constitute differential treatment.
It was argued that this differential treatment constitute unfair
discrimination.
[18]
In Jafta’s case (cited above) the Constitutional Court set out
some of the circumstances a court should consider in deciding
whether
or not to declare a primary residence of a judgment debtor
executable. In the present case the judgment debt is
substantial. It was incurred in circumstances over which the
Respondents had control. The Respondents made an informed
choice of enrolling their sons at an independent school. That
is to say that they knew that by enrolling their sons with
the
Applicant they would incur the cost of tuition fees and they did so
voluntarily. The Respondents had the choice, if they so
wished, to
enrol their sons at a public school and thus would have avoided their
present predicament.
[19]
There is further evidence that the Respondents had considered selling
the immovable property. This contradicts any sentimental
claim
that the Respondents may have to the loss of their
primary residence. There is no suggestion that they
cannot
afford alternative accommodation
[20]
In my view there is no evidence that could persuade a court to
exercise its discretion in favour of the Respondents to avoid
the
attachment and execution of the immovable property.
[21]
The constitutional challenge raised by the Respondents has to be
considered in the light of section 172 of the Constitution.
It
reads as follows:
“
When
deciding a constitutional matter within its power, a Court –
(a) must declare that any law or conduct that is inconsistent
with the Constitution is invalid to the extent of its
inconsistency;”
[22]
The Respondents do not seek to have any law or conduct declare
inconsistent with the Constitution. However, what is sought
is to
make independent schools subject to the same legislative
prohibition contained in section 41(6) of the Schools Act
as that
which is applicable to public schools. By this means they seek
to put parents of learners at independent schools
on the same footing
as parents of learners at a public school.
[23]
There are two difficulties with the Respondents’ argument.
Firstly, the constitutional challenge that the Respondents
are
subject to differential treatment can only succeed if it can be shown
that such differential treatment constitute unfair discrimination.
In
Harksen
v Lane NO and Others
1997
(11) BCLR
at 1489 the Constitutional Court held that that for differentiation
to amount to unfair discrimination it is for an applicant to
prove
that the differentiation is based on characteristics that have
the potential to impair the fundamental dignity of human
beings; or
could affect them adversely in a comparably serious manner.
[24]
As to whether differentiation amounts to discrimination must be
answered objectively. If a court finds that the differentiation
does not amount to discrimination then there can be no question as to
whether the differentiation amount to unfair discrimination.
In
the present matter the Applicant in seeking to execute against the
Second Respondent’s immovable property does not actually
or
potentially fundamentally impair the dignity of the Respondents.
It was the Respondents’ choice to send their sons
to an
independent school. They could exercise such a choice because
they enjoyed a higher economic status than the majority
of parents
who choose to send their children to public schools. The exercise of
a choice that is based on economic or financial
consideration, as in
the present case, does not fundamentally impair the dignity of a
parent who choose to enrol his child
at independent schools.
I, therefore, take the view that the differentiation as contended for
by the Respondents do
not constitute discrimination let alone
unfair discrimination. Consequently I find no merit in the
Respondents’ constitutional
challenge.
[25]
Secondly the Respondents contention adversely affects every
independent school as to how it may seek to recover unpaid tuition
fees. Parties representing the interest of independent schools
have not been joined in these proceedings and they have not
been
informed that their interest could be adversely affected by the
outcome of the present litigation. Thus there is a material
non-joinder of all interested parties.
[26]
For the reasons set out above I find that there is no merit in the
Respondents opposition to the order sought. Consequently
the order that will issue is as follows:-
1.
The
immovable property described as :- Remainder of Erf [....] A. F.
Registration Division FT KwaZulu-Natal Province in extent of
four
thousand two hundred and forty two (4242) square metres held by Deed
of Transfer No. [....] is declared executable.
2.
That
the Registrar is hereby authorised to issue a warrant of execution in
respect of the aforesaid immovable property, and
3.
The
First and Second Respondents are directed to pay the Applicant’s
cost of the application on an attorney and client scale.
________________
Date
of Hearing:
28
th
February 2017
Date
of Judgment:
12 April 2017
Counsel
for the Applicant:
Advocate Jennings
Instructed
by:
E R Browne Incorporated
Counsel
for the Defendants:
Advocate J P Pretorius
Instructed
by:
Desmond Mayne & Company