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[2016] ZAGPPHC 234
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Silteam Investment CC v Nedbank Limited and Another (72065/12) [2016] ZAGPPHC 234 (23 February 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NUMBER: 72065/12
DATE: 23 February 2016
SILTEAM INVESTMENT
CC
................................................................................................
Applicant
v
NEDBANK
LIMITED
.................................................................................................
First
Respondent
SHERIFF,
MIDRAND
.............................................................................................
Second
Respondent
JUDGMENT
MABUSE J:
[1] This matter came before me as an
urgent application in which by notice of motion issued by the
Registrar of this Court on 21
July 2014, the applicant, a close
corporation as envisaged by the Close Corporation Act No. 69 of 1984,
approached this Court and
sought the following order:
“a) Enrolling this application as
an Urgent Application and dispensing with Applicants non-compliance
with the rules relating
to time, forms, service and notices as may be
necessary;
b) Condoning the Applicant’s
non-compliance with the practice directions of this Court;
c) The Respondents, their employees
and/or agents be interdicted from auctioning PORTION 1 OF ERF 453
GLEN AUSTIN AGRICULTURAL HOLDINGS
EXTENSION 3 REGISTRATION DIVISION
i.R. GAUTENG PROVINCE MEASURING 8565 SZUARE METRES HELD BY DEED OF
TRANSFER [T9………..]
PHYSICAL ADDRESS: 58 STAG ROAD, GLEN
AUSTIN AGRUCULTURAL HOLDINGS, HALFWAY HOUSE ZONING: RESIDENTIAL
Pending the recession of default
judgment granted against the applicant;
d) In the event that this application
is opposed, costs be granted against the opposing;
e) That the First Applicant is granted
such other or alternative relief as the Court may deem fit in the
circumstances. ”
[2] The Court, having heard parties,
dismissed the application without giving reasons. The applicant now
seeks reasons for the order
that the Court made on the relevant date
and these are therefore the reasons. Needless to say this application
was opposed by the
first respondent, a public company and bank duly
registered in terms of the relevant statutes of this country.
[3] The purpose of the application was
to forestall the sale in execution of the applicant's aforementioned
property. The said sale
had been arranged to take place the following
day after the hearing of this application. It had been organized at
the instance
of the first respondent which was armed with a default
judgment it had obtain against the applicant and another entity known
as
TWM Transport Services CC.
[4] The applicant relied on the
affidavit of one Thomas Mathabathe, an adult business man and a sole
member of the applicant. According
to his testimony, he became aware
on 16 July 2014 through a notice of sale in execution that the
property that he used or referred
to as his and his family’s
primary residence would be sold at the aforementioned sale in
execution. He immediately contacted
his attorneys of record on the
afternoon of 17 July 2014. After he had told his attorneys that he
had not been served with a copy
of the summons, the attorneys took
steps to establish the facts behind the service of a copy of the
summons. Their and his discovery
was that a copy of the summons was
served by affixing it to the door or gate and that, according to a
court file, judgment by default
was granted against the applicant on
19 April 2013.
[5] On the above basis, the deponent
contends that good cause existed why the applicant failed to comply
with the practice directions
of this Court. He opined that this Court
should condone the applicant’s failure to comply with the
practice directives of
this Court.
[6] This application, as indicated
earlier, was opposed by Mr. Rip who appeared for the first
respondent. There was no appearance
for the second respondent. Mr.
Rip bemoaned the fact that the application had been brought on an ex
parte basis. It would appear
that the applicant had planned to obtain
the order in terms of which the sale in execution was stopped without
having afforded
the first respondent an opportunity to put its case
before the Court. The application was therefore brought improperly
before the
Court.
[7] Secondly, the property in question
belonged to the applicant and not to the deponent. In the premises it
was unheard of for
the deponent to state that the applicant's
property constituted his primary residence. The property did not
belong to him and his
family but to the close corporation. The close
corporation does not have a primary residence. The law with regard to
adequate housing
did not apply to juristic persons. The deponent was
not the first respondent’s judgment debtor. The law with regard
to adequate
housing does not apply to juristic persons. The deponent
was not the first respondent’s judgment debtor. In Firstrand
Bank
v Folscher 2011(4) SA 314 GNP at page 329 paragraph 31 the term
“judgment debtor” was defined as follows:
“(31) The term “judgment
debtor” as understood, for instance, in Saunderson (supra)
paragraph 3 refers to an individual,
a person. It is therefore the
primary residence owned by a person that falls within the per view of
the rule. ”
The word "person” as used in
the above paragraph refers to a natural person.
“(32) Immovable property owned by
a Company, a Close Corporation ora Trust, of which the member,
shareholder or beneficiary
is the beneficial occupier, is not
protected by the amended rule requiring judicial oversight by way of
an order of Court authorising
a writ of execution, even if the
immovable property is the shareholder’s member’s or
beneficiary’s only residence.
”
[8] Mr. Mathabathe conceded during the
argument that the applicant had been properly served with a copy of
the summons and that
such service took place on 7 January 2013.
[9] The deponent contended that he had
made some payments towards the liquidation of the debt. Despite such
payments there was still
a huge balance of R1,548,000.00 outstanding
by the applicant. It was not the deponent’s case that the
applicant had settled
the debts in full or had complied with the
obligations or had made proper and acceptable arrangements with the
first respondent
for the liquidation of the debt.
[10] Although the applicant was aware
of the default judgment granted against it, there was no application
for a rescission of the
said judgment before the Court. No
explanation has been furnished why no steps were taken to bring an
application for rescission
of the said judgment simultaneously with
this application.
[11] It is therefore for the above
reasons that the Court made the order it did on 21 July 2014.
P.M. MABUSE JUDGE OF THE HIGH COURT
Appearances:
Counsel for the Applicant: Adv.
Khumalo
Instructed by: P Mhlongo Attorneys
c/o Mabunda Attorneys Counsel for
the First Respondent: Adv. Rip
Instructed by: Van der Merwe Du Toit
Inc.
Date of Order: 21 July 2014