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[2016] ZAGPPHC 719
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Bates v Road Accident FundMasilo v Absa Bank Limited and Others (67181/2011) [2016] ZAGPPHC 719 (4 March 2016)
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Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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REPUBLIC
OF
SOUTH
AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: 67181/2011
DATE:
4/3/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
CECELIA
MOSIAMIEMANG
MASILO
Applicant
and
ABSA
BANK
LIMITED
First
Respondent
THE
SHERIFF OF THE HIG H COU RT,
TSHWAN
E SOUTH
EAST
Second Respondent
THE
REGISTRAR OF DEEDS,
PRETORIA
Third Respondent
RAJ
EN
DRA SOMAN
DASS
Fourth
Respondent
JU
D
G
M
ENT
J
W LOUW,
J
[1]
The applicant applies for an order:
•
granting the
applicant condonation for the late filing of the present application
for the rescission of a default judgment
granted
pursuant to a confession to judgment signed by the applicant on the
same date;
•
rescinding
the said judgment;
•
granting the
applicant condonation for the late filing of the present application
for the rescission of the order granted in terms
of Rule 46(1)(a) on
21 May 2013 declaring Erf [..... W. R], Pretoria, also known as
[...... J. R. S.]], [W. R], Pretoria ("the
property")
specially executable and authorizing the registrar to issue a warrant
of attachment;
•
rescinding
the said order;
•
setting
aside the warrant of attachment issued pursuant to the order;
•
setting
aside the attachment of the property made in terms of the warrant.
The
applicant also applied for an order that the endorsement of the
attachment of the property which is registered in the Deeds
Office
against the property be removed; that the sale in execution of the
property held on 15 April 2014 be set aside; that a declaratory
order
be issued that the sale in execution was a nullity; and that the
fourth respondent, who purchased the property at the sale
in
execution, be interdicted from selling the property to any third
party. All of this relief was abandoned during argument
by Mr. du Preez who
appeared on behalf of the
applicant.
[2]
The application was issued during June 2015. The first and fourth
respondents filed answering affidavits in which they each
counter
claim an order that no legal proceedings may be instituted by the
applicant against any person in any Provincial or Local
Division of
the High Court or any inferior court without the leave of that court
or any judge of the High Court, alternatively
that no legal
proceedings may be instituted by the applicant against either the
first or the fourth respondent in any Provincial
or Local Division of
the High Court or any inferior court without the leave of that court
or any judge of the High Court.
[3]
The applicant did not file an affidavit opposing the counter
applications and also took no steps to enrol the matter. The matter
was enroled by the fourth respondent's attorneys during October 2015,
who also attended to the indexing and pagination of the papers.
The
first and fourth respondents filed their heads of argument during
October 2015. The applicant failed to file heads of argument
within
the time stipulated in the practice manual of this Division. Mr. du
Preez handed up heads of argument with the leave of
the court when
the matter was called.
[4]
It is necessary to set out the chronology of events which preceded
the launch of the present application:
•
Summons was
issued by the first respondent against the applicant on 21 November
2011. The first respondent's claim was for payment
of the full
outstanding amount owing by the applicant to the first
respondent in terms of a loan agreement
which was
secured by a mortgage bond registered over the property. The
applicant entered an appearance to defend the action and
the first
respondent thereafter applied for summary judgment.
•
The
application for summary judgment was set down for hearing on 24 July
2012. The applicant opposed the application but did not
file
an opposing affidavit. The
applicant was legally
represented and
the parties reached a settlement in terms whereof it was agreed that
the applicant would pay the arrears in installments
and sign a
confession to judgment in the event of the applicant failing to
comply with the payment arrangement. The confession
to judgment
signed by the applicant records the payment arrangement and then
proceeds as follows:
"AND
WHEREAS
I
AGREE
to
the
signing
of
a
Confession
to
Judgment
in
terms
of
the
aforementioned
Rule,
[1]
details
of
which
appear
below, and agree that the PLAINTIFFS' attorney may
apply
for Judgment against me without further notice in the event
•
of
me failing to comply
with the repayment arrangement
concluded with
the Plaintiff.
AND
WHEREAS I furthermore agree that the filing of an affidavit by the
Attorney of record of the PLAINTIFF reflecting my failure
to comply
with the repayment arrangement shall be sufficient proof for the
Registrar of the above Honourable court for the granting
of judgment
in terms of this confession. I hereby agree that this confession can
be made an Order of Court.
NOW
THEREFORE I the undersigned,
CECILA
MOSIAMIEMANG MASILO
HEREBY
confess in whole to the PLAINTIFFS' claim contained in the Summons
namely:
The
relief claimed in the summons is then set out, including the claim
for an order declaring the property executable and directing
the
registrar to issue a warrant of execution against the property.
•
On 24
July 2012, the parties also agreed to a draft order
which was made an order of court. In terms of
the order, the total
outstanding capital amount owing to the first respondent shall
immediately become due and payable in the event
of the applicant
failing to effect timeous payment of the amounts
due in terms of the payment arrangement
(which is
recorded in the order) and the applicant consents that
judgment may be entered against
her for any such amount as may
be due at such point in time, without further notice. It was further
ordered that the applicant
agrees that the filing of an affidavit by
the first respondent's attorney of record reflecting the
applicant's failure to
comply with the payment arrangement
shall be sufficient proof for the registrar to
grant judgment
in terms of the confession signed by the
applicant on the same day.
•
The
applicant made some payments pursuant to the payment arrangement, but
thereafter defaulted. On 21 May 2013, the first respondent
applied to
court for and obtained judgment in terms of the confession to
judgment, including an order declaring the property specially
executable and authorizing the registrar to issue a warrant of
execution against the property .
•
The
applicant states that some people from Cape Town called her during
2013 and informed her that they had seen that her house was
on
auction. They offered to help her for a fee, indicating that they
would advertise that she was
"going insolvent''
which
would stop the auction. She agreed, to
"save
our
house".
It appears, therefore, that the applicant was
prepared to take part in a dishonest scheme to frustrate the sale of
the house. Sometime
thereafter she was informed by someone, she can't
recall who, that the house was advertised for auction again. She
consulted an
attorney who advised her that the sale had not been
properly advertised. The first respondent's attorneys were informed
of the
defective advertisement and the sale was as a result
cancelled. She negotiated with the first respondent and
offered
to cede a claim which she had against the Rustenburg
municipality for some project. The first respondent declined the
offer and
indicated that it would only be prepared to stop the sale
in execution if the applicant immediately paid an amount of R100
000.00.
The applicant did not have the money. The arrears at that
stage exceeded R700 000.00.
•
On 11April
2014, a few days before the sale, the applicant's new firm of
attorneys filed a notice of application for leave to appeal
against
that part of the order granted in terms of the confession to judgment
declaring the property executable. The grounds of
appeal stated in
the notice of appeal were that the court erred in making such order
without taking into consideration the amendment
of Rule 46 of the
High Court Rules and without compliance with the provisions set out
in s 131 read with ss 127 and 128 of the
National Credit act, 34 of
2005.
•
On 15 April
2014, the property was sold in execution to the fourth respondent for
a purchase price of R2 645 000.00.
•
On 6 May
2014, the applicant's attorneys filed a notice of withdrawal of the
application for leave to appeal and simultaneously
filed
an application for rescission
of the judgment
granted on 21 May 2013 in terms of
the confession to judgment, for an order setting aside the
warrant of execution
issued in terms of the judgment and
for setting aside the sale in execution that had taken
place on 14 April 2014.
Condonation was also sought for the late
filing of the application. The grounds relied upon for the
relief sought
were in essence the same as those contained
in the notice of appeal which was withdrawn. The same respondents as
in the present
application were cited. The application was opposed by
the first and fourth respondents and they filed opposing affidavits.
•
The
applicant states in her founding affidavit that her attorneys
instructed counsel on the aforementioned application. Counsel's
advice was that because of the confession to judgment, there was no
merit in the application and that it should be withdrawn. The
applicant states that she reluctantly accepted the advice that the
application should be withdrawn. It is not clear when the application
was withdrawn.
•
Registration
of transfer of the property into the name of the fourth respondent
was effected on 4 July 2014.
•
On 5 August
2014, the fourth respondent launched an application to have the
applicant evicted from the property.
•
On 8
December 2014, the applicant filed a notice of opposition to the
eviction application but failed to file an answering affidavit.
Her
attorneys of record subsequently withdrew.
•
On 4
February 2015 an eviction order was granted against the respondent in
favour of the applicant.
•
The
applicant thereafter brought an urgent application for an order to
suspend the eviction order for a period of 14 days to give
her an
opportunity to file two applications for, firstly, the rescission of
the eviction order and, secondly, for the rescission
of the default
judgment granted against her pursuant to the confession to
judgment which she had signed. The urgent application
was heard by
Kubushi J who dismissed it on 7 April 2015. The judgment of Kubushi J
is annexed to the applicant's founding affidavit.
The court
considered whether the applicant had any prospects of success in the
intended rescission applications. The court
found that she did not,
and accordingly dismissed the application and ordered the applicant
to vacate the property within 45 days
from the date of the order.
•
The
applicant did not vacate the property within the time ordered by the
court. On 9 June 2015, and despite the judgment of Kubushi
J, the
applicant launched the present application in which the an order is
again sought for the rescission of the default judgment
granted
pursuant to the confession to judgment, for the setting aside of the
warrant of execution issued in terms of the confession
to judgment
and for setting aside the sale in execution that had taken place on
14 April 2014. The grounds relied upon are
again in essence the
same as those contained in the notice of appeal, in the previous
rescission application and in the urgent
application.
The
application for
condonation
[5]
The application for rescission is made in terms of Rule 31(2). I
shall assume for purposes hereof that the rule also applies
to a
judgment which was granted by default against a defendant in terms of
a confession to judgment in which a defendant consented
to judgment
being granted without notice.
[6
]In terms of Rule 31(2)(b}, a defendant against whom judgment has
been granted by default has 20 days after he or she has knowledge
of
such judgment, to apply to court to set it
aside. The applicant accepts that the application is
brought out of
time and therefore applies for condonation for the late bringing of
the application.
[7]
The applicant must have been aware that the first respondent would
apply for judgment in terms of the confession to judgment
if she
failed to meet the payment arrangement, which she admittedly failed
to do. The applicant must have become aware that a judgment
had been
granted against her not later than the date in 2013 when she was
informed by
"some people from
C
ape Town"
that her house was up for auction. She did nothing about it until
she was informed
"some
time
thereafter"
that her house was advertised to be
sold on auction again.
She
then consulted an attorney who did not file an application for
rescission of the judgment, but rather a notice of appeal
which was
filed a few days before the execution sale of the property. The
notice of appeal was withdrawn on 6 May 2014, which was
after the
sale of the property to the fourth respondent. She then caused an
application for rescission of the judgment to be launched
which was
subsequently also withdrawn. The withdrawal must have occurred before
fourth respondent launched an application on 5
August 2014 to have
the applicant evicted from the property. An eviction order was
granted on 4 February 2015 after the applicant,
who had opposed the
application, failed to file an answering affidavit. She thereafter
filed the urgent application to set aside
the eviction order, which
was dismissed by the court on 7 April 2015. The present application
was served on 9 June 2015.
[8]
It is clear from the history of the matter which I have set out above
that the steps which were taken by the applicant were
taken with a
single aim in mind, namely to delay her eviction from the property
for as long as possible by any means possible.
Apart from a few
payments which were made by the applicant to the first respondent in
terms of the payment arrangement concluded
on 24 July 2012, she has
been living in the house on the property ever since without paying
anything. Since purchasing the property
at the sale in execution on
15 April 2014, the fourth respondent has been obliged to pay the
rates and taxes in respect of the
property. The conduct of the
applicant, which obviously was to the substantial
prejudice of the first and
fourth respondents, smacks of
a lack of
bona fides.
The applicant's decision to
resort to other avenues and not to apply for a rescission of the
default judgment was clearly intentional.
The applicant cannot now,
almost three years after the judgment was granted, rely on the other
steps which she took as an excuse
for the delay of almost three years
in the bringing of the present rescission application.
[9]
I therefore find that the applicant has failed to prove that her
delay in bringing the present application has not been willful.
I
accordingly find that the application for condonation cannot succeed.
It follows that the entire application must be dismissed.
The
counter
applications
[10]
As mentioned earlier, the first and fourth respondents each filed a
counter application in which they claim an order that no
legal
proceedings may be instituted by the applicant against any person in
any Provincial or Local Division of the High Court or
any inferior
court without the leave of that court or any judge of the High Court,
alternatively that no legal proceedings may
be instituted by the
applicant against either the first or the fourth respondent in any
Provincial or Local Division of the High
Court or any inferior court
without the leave of that court or any judge of the High Court.
[11]
The counter applications are brought in terms of the Vexatious
Proceedings Act 3 of
1956. Sec. 2(1)(b)
of the Act provides the
following:
"(b)
If,
on
an
application
made by any
person against whom
legal
proceedings
have
been instituted by any
other
person or
who
has
reason to
believe that
the
institution of legal proceedings against him is contemplated by
any other person,
the
court
is
satisfied
that
the said
person
has persistently
and
without any
reasonable ground instituted legal proceedings in any court or in any
inferior court, whether
against the
same
person or
against different
persons,
the
court may, after hearing
that person
or giving
him an opportunity
of
being
heard, order
that
no
legal
proceedings shall
be
instituted by him
against
any
person in any
court
or
any
inferior
court
without
the
leave
of the court,
or
any
judge thereof, or that inferior court, as the case may be, and such
leave shall not be granted
unless
the
court or judge
or
the inferior
court, as the case may
be, is
satisfied
that the proceedings are not an abuse of the process of the court and
that there
is
prima facie
ground for the
proceedings."
[
1
2]
I
n
Beinash
and
Another
v
Ernst
&
Young
and
Others
[2]
the
Constitutional
Court
said
the
following
with
regard
to
the
pu
r
pose
of
the
Act:
"This
purpose
is
'to put
a
stop
to persistent
and
ungrounded
institution
of
legal proceedings'.
The
Act does
so
by
allowing a
court
to
screen (as
opposed to absolutely bar)
a
'person
(who)
has
persistently
and without
any reasonable ground
instituted legal
proceedings in
any
Court
or
inferior
court'.
This screening
mechanism is
necessary to
protect
at
least
two
important
interests. These are
the
·· interests
of
the
victims
of
the
vextious
litigant
who
have repeatedly
been subjected
to the
costs,
harassment
and embarrassment
of
unmeritorious
litigation;
and
the
public
interest
that
the
functioning
of
the courts and
the
administration
of justice
proceed
unimpeded
by
the
clog
of
groundless proceedings.
"
[13]
The respondents therefore have to show, firstly, that the applicant
has persistently instituted legal proceedings
and,
secondly, that such proceedings have been without
reasonable ground.
[14]
As to the first requirement, the conduct of the respondent has no
doubt been a great irritation to the first and fourth respondents.
She has not only instituted legal proceedings against them, but has
opposed proceedings instituted by them against
her,
more specifically the summary judgment application
brought by the first respondent (which was settled)
and the eviction
application brought against the applicant by the fourth respondent
(which led to the granting of an eviction order
against the applicant
after she failed to file opposing papers). But can it be said that
the applicant has persistently instituted
legal proceedings against
the applicants? The legal proceedings which the applicant has
instituted against the respondents were
the application for leave to
appeal (served on 14 April 2014, but which was withdrawn), the
previous rescission application (served
on 6 May 2014, but also
withdrawn), the urgent application (which was dismissed on 7 April
2015) and the present rescission application.
In my view, the legal
proceedings which have to date been instituted by
the applicant have not
quite reached the
point where they can be labeled as persistent, although they
come perilously close thereto.
Any further proceedings which the
applicant may institute against the first and/or fourth respondents
may lead to such conclusion,
especially if regard is had to the
overall pattern of litigation between the parties.
[15]
Having concluded that the first requirement for an order in terms of
s 2(1)(b) of the Act has not been met, it is not necessary
to
consider whether the respondents have satisfied the second
requirement, i.e. that the proceedings which have been instituted
by
the applicant were without any reasonable ground.
[16]In
the result, I make the following order:
[a]
The applicant's application is dismissed with costs.
[b]
The first and fourth respondents' counter applications are dismissed
with costs.
Applicant's
attorney: Mr. L du Preez, au Preez Attorneys, Nelspruit
First
Respondent's counsel: Adv. U Lettering Instructed by Hack
Stupel & Ross Attorneys
Fourth
Respondent's counsel: Adv. J de Swardt Instructed by: Liesl
van Rensburg Attorneys
[1]
The
heading
of
the
document
refers
to
Rule
31
of
the
High
Court
Rules.
[2]
1999
(2) SA 116
(CC) para [15].