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
>>
2016
>>
[2016] ZAGPPHC 177
|
|
Nedbank Limited v Maleka and Another (A714/2014) [2016] ZAGPPHC 177 (7 March 2016)
I
N
THE
H
I
GH
COURT OF
SOUTH
AFRICA
(GAUTENG
D
I
VISION,
PRETORIA)
Case
number: A714/2014
Date:
7 March 2016
Not
reportable
Not
of interest to other judges
I
n
the
matter
between:
N
EDBANK
LI
M
I
TED
APPELLANT
And
MASHEGO
FREDERICK
MALEKA FIRST
RESPONDENT
ZANELE
ELLEN
MALEKA
SECOND
RESPONDENT
JUDGMENT
PRETORIUS
J
.
(1)
In this appeal to the Full Bench of this division the appellant
requests the court to set aside the judgment and order of Kubushi
J
granted on 3 July 2013.
(2)
The
respondents
sought
an
order
in the
court
a
quo
that
the
sale
in
execution
in respect of an
i
mmovable
property
be
set aside and that the
subsequent
transfer of
the property be
set
aside.
(3)
An
application for
condonation
and
reinstatement
of the
appeal was
heard
simultaneously
with
the
appeal.
The
court
found,
after
the
respondents
had conceded, that the
explanation
by
the appl
i
cant
for the
l
ate
l
aunching
of
the
appeal
had
been
adequate
and
granted condonation.
FACTS:
(4)
During
2003.
2004 and 2007 the applicant
and the respondents
entered
into three
separate
l
oan
agreements
in terms
of
which
the respondents
l
ent
money from the appellant
and
the agreement
was
secured by
three
mortgage bonds
which
were registered over
a
certain
i
mmovable
property.
(5)
Due
to
non-payment
of
the
bond,
action
was
instituted
against
the
respondents
in
the
High
Court
on
15
May
2008.
John
Triblehorn
Attorneys entered appearance
to defend the main
action
on behalf of
the
respondents.
An
application for summary judgment was enrolled
for
13
August
2008.
On 16
July
2008
the same attorneys forwarded
a
l
etter
to the appellant's attorney
i
nd
i
cating
that the respondents did not
have any defence to the action and therefore summary judgment
should be granted, which was duly done. The property was declared
executable at the time of summary judgment. A writ of attachment was
served on the respondents on 26 September 2008. A sale in execution
was scheduled for 30 October 2008, which was subsequently cancelled
as the respondents proceeded to make nominal payments.
(6)
A second sale in
execution
was scheduled for 25 November 2010, as
the
respondents
had once
more failed
to
bring the
payments
up to
date.
On
24 November 2010
the sale
was once more cancelled as
the
respondents had signed a
Nedbank Assisted
Sales
Agreement.
The
terms were that the
respondents granted the appellant a mandate to sell the property in
order to settle
their indebtedness through an
estate
agent.
The
respondents
acknowledged that
they were familiar
with
their r
i
ghts
i
n
terms of the provisions of the
National Credit Act No. 34 of 2005
.
The mandate would be in
full force for 100
days from
the date
that
the
mandate had
been
signed
and
would
terminate
after
1
00
days.
(7)
The 100
days
expired
and
the respondents fai
l
ed
to
extend
the mandate, a
l
though
they had been requested by
the appellant to
do
so. Subsequent
to this failure the account
was withdrawn from the
Nedbank
Assisted
Sales
option.
(8)
A
sale
in
execution
was
arranged
for
24
February
2012
and
the
respondents
were
informed
of
this
sale
on
23
February
2012. No
payment
was
forthcoming
from
the respondents and
the property
was
sold and on 6 June
2012 the property was registered in the name of the buyer.
(9)
The
respondents
were
at all times, even
before summary judgment had
been granted, represented by
l
egal
representatives; they granted the appellant a mandate to sell their
i
mmovable
property, they did not
l
aunch
a rescission of judgment
application; they did not
provide any evidence
as
to
their
financial
means
or
any
i
mpossibility
to
obtain alternative
housing. The only reference
in
this
regard
i
s
i
n
the founding affidavit where
the respondents alleged
"...the property is the only
registered property that the applicants have and they may be homeless
together with their school-going
minor children...".
(10)
No application for rescission of the summary judgment had been
launched at any time. The appellant had scheduled two sales
in
execution, which had been cancelled, in an endeavour to assist the
respondents. There is no explanation in the papers, nor could
Mr
Malowa for the respondents, explain during argument why no rescission
of judgment application was launched at any time.
(11)
There
i
s
no reason furnished
as to why
the
court when
granting the summary
judgment
would
have
refused to execute
against
the
i
mmovable
property.
I
t
is clear
that
the
respondents'
attention was drawn
to
section
26
of
the
Constitution in
the
summons and
they chose
to consent to summary
judgment.
The
respondents' actions showed
that they were
ad idem
with the appellant at the time that
the property should be sold when they entered
i
nto
the mandate with Nedbank
i
n
the Nedbank Assisted Sales Agreement. It is clear that
the respondents had been legally represented from the outset.
(12)
The
court
a quo
relied
on the
decisions
of
Jaftha
v
Schoeman
and
Others;
Van Rooyen v Stoltz and Others
2005 (2) SA
1
40
(CC) and
M
enqa
and
Another
v
Markom
and
Others
2008(2)
SA
1
20
(SCA)
when
deciding
that
the
warrant of execution should
be
set aside due
to
a
l
ack
of
judicial
oversight.
The
warrant of
execution had
been
granted
by
the registrar at
the
time.
(13)
This
court has to agree with
the appellant that the facts in
the present
matter
are distinguishable
from
these cases, as
these
cases related to
the
constitutional invalidity of section 66 of the Magistrate's Court Act
32 of
1
944
and not
the
provision of Ru
l
e
46(1) of the Un
i
form
Rules of this court.
The
main difference, however,
i
s
that in both those cases,
warrants
of execution were
issued after default
judgments
had
been
granted,
which
i
s
not
the
case
in the
present
i
nstance.
Summary
judgment was granted
by consent and no appl
i
cation
for rescission of
the
judgment
has
been
l
aunched.
The respondents agreed to
h
ave
their
property
sold
through
the
Nedbank
Assisted
Sales
process.
(14)
I
n
Gundwana v
Steko
D
evelopment
CC and Others
201
1
(3)
SA 608
(CC)
at
paragraph
65
the
court held:
"It
is declared that it is unconstitutional for a registrar of a High
Court to declare immovable property specially executable
when
ordering default judgment under rule 31(5) of the Uniform Rules of
Court, to the extent that this permits the sale in execution
of the
home of
a
person."
(
1
5)
Therefor
the court
has to
consider
all
relevant
circumstances
before authorising the
issuing of
a warrant
of
execution
against a
person's
primary
residence. This
court
in
a
full
bench
decision
in
Firstrand
Bank Ltd v Folscher
and Another
2011(4)
SA 314 (GNP)
at 328H to
3298 held:
"The
amendment to the rule requires judicial oversight of the execution
process against property especially hypothecated, which
is the
'primary residence' of the judgment debtor. The protection of
s
26(1) of the Constitution is extended to the
debtor
who may lose what is usually his only home.
The
effect of the wording of the amendment and the 'relevant
circumstances' that have to be considered by the court will be
considered
below.
This
investigation must be undertaken against the background of the
Gundwana decision of the Constitutional Court delivered on 11
April
2011, which declared unconstitutional the practice of allowing the
registrar to declare immovable property specially executable
when
ordering default judgment in terms of rule 31(5), 'to the extent that
this permits the sale in execution of the home of
a
person'. (Our emphasis.) This decision overrules the Martinson
and Saunderson judgments on this point. Its interaction with the
amended rule, if any, will be considered below. It is clear, however,
that all applications for execution against
a
specially hypothecated property must henceforth be dealt with
by the court."
(Court's
emphasis)
(16)
The
dicta
i
n
Gundwana
v
Steko
(
supra)
i
s
applicable
i
n
the
prese
n
t
case
and
deals
with
retrospectivity
at
paragraphs 57
to 59:
"But
what about retrospectivity? In Jaftha, this court placed no limit on
the retrospectivity of its order. The declaration
of invalidity of
the legislative provisions in that matter did not entail, however,
that all transfers made subsequent
to
invalid execution sales were automatically invalid. Individual
persons affected by the ruling still needed to approach the courls
to
have the sales and transfers
set
aside if granted by default. This was made clear in Menqa and
Another v Markom and Others. A similar approach should be followed
here.
There
may be
a
fear that the
decision in this matter will lead to large-scale legal uncerlainty
about its effects on past matters, where homes
were declared
specially executable by the registrar, and sales in execution and
transfers followed. The experience following Jaftha
may be an
indication that this fear is overstated. It must be remembered that
these orders were issued only where default judgments
were granted by
the registrar. In order
to
tum the clock back in
these
cases,
aggrieved debtors will first have
to
apply for the original default judgment to be set aside. In
other words, the mere constitutional invalidity of the rule, under
which
the property was declared executable, is not sufficient to undo
everything that followed. In order to do
so
the debtors will have to explain the reason for not bringing a
rescission application earlier, and they will have to
set
out a defence to the claim for judgment against them. It may
be that in many
cases those
aggrieved may find
these
requirements difficult to fulfil.
From
what has been stated above, in relation to the legitimacy of
resorting to execution in order to obtain satisfaction of judgment
debts sounding in money, and that only deserving cases would justify
other means to satisfy the judgment debt, it follows that
a
just and equitable remedy, following upon the declaration of
unconstitutionality, should seek to ensure that only deserving past
cases benefit from the declaration. I consider that this balance may
best be achieved by requiring that aggrieved debtors, who
seek to set
aside past default judgments and execution orders granted against
them 'by the registrar, must also show, in addition
to the normal
requirements for rescission, that a court, with full
knowledge of all the relevant facts
existing at the time of
granting default judgment, would nevertheless have
refused leave to execute against
specially hypothecated property
that is the debtor's home."
(Court's
emphasis)
(17)
Once
more
the
facts
i
n
the
present
appeal
are
distinguishable
as
the
Gundwana
case
(s
u
p
ra)
dealt
with
a
default
judgment, where in the
present
i
nstance
summary judgment
was
granted
by
consent.
(18)
I
t
i
s
once more of utmost
i
mportance
to remember that at no stage did
the
respondents
l
aunch
an application for
rescission
of the summary
judgment
and
did
not
provide
an
explanation
for
not
doing
so.
I
n
Mkhize
v
Umvoti
Municipality
2012(1)
SA
1
(SCA)
Malan
JA
held:
"But
it does not follow that the absence of judicial oversight will render
the procedures followed, eg the issue of
a
warrant for execution and the subsequent sale in execution,
invalid in all cases. The purpose of the judicial oversight ordered
in Jaftha is to protect the right to adequate housing. Where,
as
in this case, the right to adequate housing is not engaged,
invalidity does not necessarily follow.
This
is
so because
the
judgment
and subsequent
sale
in
execution
stand until
set
aside.
The plaintiff
did not
bring
an
application
to rescind
the
default judgment
entered against him."
(Court's emphasis)
This
dictum
is
applicable
in
the
present instance.
(19)
The
fact
that
the
respondents
failed
to
apply
to
have
the
summary
judgment
rescinded
and
did
not
adequately
set
out
reasons
why
the
court
would
not
have
granted
a
writ
of
execution
at
the time that
the
summary
judgment
was
granted,
must
be taken
into account
as well.
This
court
cannot find that when
the warrant
of
execution
was
issued
after summary
judgment had been granted with full knowledge of the facts existing
at the time, the court would have refused the
warrant of execution.
The remedy has always been to launch an application for
rescission of the summary judgment, which
the respondents
failed to do.
(20)
The appeal has to succeed due to the reasons set out above.
(21)
The
order:
1.
The appeal
i
s
upheld;
2.
The order of the court a
quo
i
s
set aside;
3.
The main
application
is dismissed with costs;
4.
The respondents are ordered to pay the costs of the appeal.
_________________________
Judge
C Pretorius
I
agree.
_________________________
Judge
E Jordaan
I
agree.
_________________________
Judge
E
Jordaan
Case
number
:A714/2014
Matter
heard on
: 17 February 2016
For
the Appellant
:Adv
FR Van den Heever
I
nstructed
by
:
Hack Stupel & Ross Attorneys
For
the
Respondent
:Adv
Malowa
I
nstructed
by
:
Mahlangu Mashoko Attorneys
Date
of Judgment :
7 March 2016