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[2016] ZAKZDHC 28
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Piercey v EThekwini Municipality and Others (16709/2009) [2016] ZAKZDHC 28 (12 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No: 16709/2009
DATE:
12 AUGUST 2016
NOT
REPORTABLE
In
the matter between:
LEONARD
MARK
PIERCEY
.................................................................................................
Applicant
And
ETHEKWINI
MUNICIPALITY
.....................................................................................
1
st
Respondent
JUNAYD
MAHOMEDY
.................................................................................................
2
nd
Respondent
SHERIFF,
DURBAN
WEST
...........................................................................................
3
rd
Respondent
JUDGMENT
Gorven
J:
[1]
Mr Piercey, the applicant, owns an
immovable property (the property). He took transfer from his late
father in 1997. The address
is [1…..] [M…..] [V…]
[R…..], [B…..], [D.…]. He has lived there since
1970 and did so
at all material times. After taking transfer, he paid
all of the utility accounts for the property, which remained in the
name
of his father. These were sent to the above address by ordinary
post. ABSA Bank limited holds a mortgage bond over the property
with
an outstanding balance of R104 815.41. He says that his father
experienced difficulties regarding the payment of rates.
As a result,
Mr Piercey arranged that the rates accounts and those for utilities
would be sent in the same document. In order to
take transfer, a
rates clearance certificate was obtained. Thereafter, the rates
account was in the name of Mr Piercey because
he was now the owner.
It is common ground that Mr Piercey did not pay any rates after
taking transfer. He says that he did not
receive any such accounts
and assumed that they were included in the utilities account as had
been done with his father. The first
respondent (Ethekwini) says it
sent the rates accounts annually to the same address by the same
means as the utilities account.
This simply elicits a bare denial by
Mr Piercey. In the light of his having received the utility accounts,
it is inconceivable
that none of the rates accounts reached the
address. This denial must accordingly be rejected but, as will be
shown later, nothing
turns on it.
[2]
Due to the non-payment of rates, Ethekwini
sent a letter of demand to the same address and, when that did not
achieve the desired
effect, served a summons on Mr Piercey for the
amount outstanding. This was served on Mr Piercey personally on 31
March 2010. He
says that he has no recollection of this because his
father died on 1 March 2010. He does not deny receiving it. The third
respondent’s
return indicates that the nature and exigency of
the summons was explained to Mr Piercey. This is likewise not denied.
Default
judgment was granted against him by the registrar under
rule 31(5) for rates, penalties and collection charges with
interest
and costs. The registrar also declared the property to be
executable.
[3]
A notice of attachment and warrant of
execution was sent to the address of Mr Piercey by registered post on
5 September 2010. This
document is put up by Mr Piercey as one sent
to him by Ethekwini’s attorneys but he fails to deal with it at
all. Absent
a denial that he received it, it must be taken to have
reached him. The property was attached by the third respondent on 20
October
2010 by affixing a writ to the main entrance of the property
since it was locked and unattended. Mr Piercey simply notes that
averment
without saying whether or not he received it, other than by
blanket averment that he did not know of the judgment until three
years
later. A sale in execution of the property was advertised for 9
May 2013. Letters advising of the sale were addressed and sent by
registered post to the bondholder, Mr Piercey and the occupier, the
latter two to the address of the property. Again, Mr Piercey
puts
these documents up as having been provided to him by Ethekwini’s
attorneys without any comment. On the advertised day,
the property
was sold in execution to Mr Mahomedy, the second respondent, for the
sum of R341 000. Mr Piercey claims
that this is
substantially less than the value of the property which he puts at
R830 000. He provides no admissible evidence
for this assertion.
[4]
This application is for rescission of only
that part of the judgment which declared the property executable and
associated relief.
The relief sought is as follows:
‘
(a)
The late filing of this Application be and is hereby condoned;
(b)
The Default Judgment granted by the Registrar of this Honourable
Court on 27
th
August 2010 in terms of which the
Applicant’s immovable property . . . was declared executable
(prayer f) be and is hereby
rescinded or set aside . . .
(c)
The Sale in Execution of the Applicant’s immovable property
referred to in prayer (b)
supra
by the Third Respondent to the
Second Respondent on 9
th
May 2013 pursuant to
the Default Judgment granted by the Registrar on 27
th
August 2010 be and is hereby set aside;
(d)
The Applicant pay the costs of this Application unless unsuccessfully
opposed by any of the Respondents.’
Both
Ethekwini and Mr Mahomedy oppose the application. Both delivered
answering affidavits but only Mr Mahomedy’s counsel
arrived on
the date the matter was set down.
[5]
The
application is apparently brought under rule 31(2)(
b
).
This requires an applicant to launch an application within 20 days of
becoming aware of the default judgment. This rule does
not seem to
apply to judgments by the Registrar. Rule 31(5)(
d
)
allows a party against whom a judgment has been granted in terms of
rule 31(5)(
a
)
to set the matter down for reconsideration within 20 days after
becoming aware of the judgment. The application has not been brought
for reconsideration but for rescission. However, that is rather
matter of form than of substance. This court has held that a
reconsideration
applies the same test as does rescission under rule
31(2)(
b
).
[1]
This court has determined that it can substitute its discretion for
that of the registrar in such an application.
[2]
The application may also be treated as one brought under the common
law because the rule in essence restates the common law.
[3]
This court has inherent jurisdiction to rescind any judgment.
[4]
The test is that there is an onus on the applicant to show good
cause:
‘
(
a
)
by giving a reasonable explanation of his default; (
b
)
by showing that his application is made
bona
fide
;
and (
c
)
by showing that he has a
bona
fide
defence to the plaintiff’s claim which
prima
facie
has some prospect of success . . .’.
[5]
[6]
The first issue to consider is that of
condonation. There is a dispute as to when Mr Piercey became aware
that judgment had been
granted against him. On any version, however,
he was well outside of the required 20 day period of rule 31(5)(
d
).
The common law requires an application to be brought within a
reasonable time. Absent an indication that the 20 day period is
inappropriate, I see no reason why a reasonable time would exceed
that period.
[7]
Mr Piercey says that he received a
statement of rates on 15 April 2013 showing an amount outstanding of
R136 015.50. This caused
him to approach the accounts department
of Ethekwini where he was advised by an official that he would be
contacted in due course.
The next he heard was on 9 May 2013
when an official from Ethekwini came to his residence and informed
him that the property was
being auctioned. On 21 May 2013 he
contacted an attorney to assist him and was referred to his current
attorneys of record. He
consulted with them on 25 May 2013 but had no
documents. His attorneys attempted to obtain the court file but could
not locate
it. Surprisingly, there is no affidavit by his attorneys
confirming this and the further averments concerning them. The
attorneys
established that Ethekwini was represented by its current
attorneys and requested their assistance in furnishing him with
relevant
papers, which was only done on 23 July 2013. When he
consulted his attorneys on 26 July 2013, they advised that he should
raise
funds to pay towards the rates should an application for
rescission be successful. He started to collect funds. On 13 August
2013
he deposited R100 000 into the trust account of his
attorneys to be held for part payment in that event. The application
was
served on Ethekwini on 17 September 2013.
[8]
Ethekwini tells a different story. As I
have indicated, according to the return of the third respondent, a
notice of attachment
and warrant of execution was posted to Mr
Piercey by registered post on 5 September 2010. He gives no
explanation for not having
received that registered post or notice of
it. It was sent to his present address, at which he had received
utility accounts sent
by ordinary mail. In addition, a notice of
attachment was affixed to the outer door of the property in October
2010. Once again,
Mr Piercey does not give any explanation as to
whether this came to his attention and, if not, why not. Notices of
the date of
the sale in execution were also sent by registered post
to his address. Once again, no credible explanation is given as to
why
he did not retrieve the registered post. Absent a full and candid
explanation, it must be accepted that Mr Piercey became aware
of the
judgment by October 2010 at the latest.
[9]
On his own version, he became aware of it
on 9 May 2013 when he was told that a sale in execution was taking
place that day. There
is no explanation by him why he did not act
immediately other than to say that he was accumulating funds towards
the admitted rates
debt. There was no need to wait until he had
deposited money into his attorneys trust account before he could
launch the application.
In my view, no case for condonation has been
made out. The application should fail for that reason alone.
[10]
In
any event, the same outcome would result from a consideration of the
merits. The test for rescission is that a party must show
good cause.
Because Mr Piercey seeks only to rescind that part of the judgment
relating to the order for executability, it must
be accepted that he
has no defence to the money claim. As regards whether or not he was
in wilful default, it is clear that he
received personal service of
the summons and did nothing. The summons contained a prayer for
executability. The only explanation
given by Mr Piercey for failing
to defend the matter was that he had lost his father and cannot, as a
result, recall receiving
the summons and that there was a burglary at
his house during which the summons must have become misplaced. This
is no explanation
at all. What is required of an applicant for
rescission is a sufficiently full explanation for her or his default
to enable the
court to understand how it really came about and to
assess his conduct and motives.
[6]
No such explanation has been given.
[11]
A
further requirement is that an applicant must put up facts which
prima
facie
show
that she or he has a defence to the claim. In the present matter,
this does not go to the issue of whether or not Mr Piercey
received
rates accounts. He does not attack the default judgment for rates. As
a result, all of the evidence in this regard is
irrelevant. The crisp
issue is whether he would have succeeded in fending off the prayer
for executability of the property. In
this regard, he says that the
Constitutional Court, some six months after default judgment was
granted against him, held that such
judgments could not be granted by
registrars of the court. This is correct.
[7]
What that case decided, however, is that an applicant for rescission
relying upon that judgment cannot simply rely on the fact
that the
judgment in question was granted by the registrar. Mr Piercey must
show that a court, with full knowledge of all the relevant
facts at
the time default judgment was sought, would have refused leave to
execute.
[8]
[12]
The only facts which Mr Piercey sets out
are the following. The property is his primary residence. There is a
possibility that if
the facts in the affidavit were placed before a
court, it may not have granted an order declaring the property
executable. What
is clear from the papers is that Mr Piercey was not,
and is not, in a position to satisfy the judgment debt without the
property
being sold. There is a substantial bond over the property
and the amount raised by him does not even satisfy the amount due to
Ethekwini. In addition, it is clear that Mr Piercey is employed.
There is no evidence that Mr Piercey would be unable to afford
to
either rent or purchase a smaller property. In other words, there is
no evidence that Mr Piercey will be rendered homeless as
a result of
the property being sold in execution. Consideration must also be
given to the fact that Mr Mahomedy has been kept out
of a property
purchased by him over three years ago by reason of this application.
[13]
In my view, accordingly, Mr Piercey has
failed to show good cause and, thus, to make out a case for
rescission of the judgment and
the consequent relief sought by him.
This means that the application must fail. On 30 October 2015 the
application was adjourned
and the wasted costs occasioned by the
adjournment were reserved. I see no reason why Mr Piercey should not
pay those wasted costs.
In
the result, the following order issues:
1
The application is dismissed with costs.
2
The applicant is directed to pay the costs
reserved on 30 October 2015.
GORVEN
J
DATE
OF HEARING: 12 August 2016.
DATE
OF JUDGMENT: 12 August 2016.
FOR
THE APPLICANT: No appearance.
FOR
THE FIRST RESPONDENT: No appearance.
FOR
THE SECOND RESPONDENT: N Moosa,
Instructed
by Yusuf Cassim & Associates.
[1]
Pansolutions
Holdings Ltd v P&G General Dealers & Repairers CC
2011 (5) SA 608
(KZD) para 14.
[2]
Pansolutions
para 11. This judgment differed from the view taken that a court can
only interfere with the judgment if the Registrar has erred.
See
Bloemfontein
Board Nominees Ltd v Benbrook
1996 (1) SA 631
(O) at 633H.
[3]
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
para 6.
[4]
De
Wet & others v Western Bank Ltd
1979
(2) SA 1031
(A) at 1042F-G.
[5]
Colyn
para 11.
[6]
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 353A.
[7]
Gundwana
v Steko Developments & others
2011
(3) SA 608
(CC).
[8]
Paragraph
59.