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[2016] ZAGPPHC 585
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Absa Bank Limited v WH Construction (Pty)Ltd and Others (14730/2011) [2016] ZAGPPHC 585 (13 May 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 14730/2011
DATE:
13 MAY 2016
In
the matter between:
ABSA
BANK LIMITED
Applicant
and
WH
CONSTRUCTION
(PTY) LTD
First
Respondent
HENDRIK
WHITEMAN
Second Respondent
HENDRIK
STEPHANUS MARTHINUS JOSEPHUS MARX Third
Respondent
DATE
OF HEARING: 17
FEBRUARY
2016
DATE
OF JUDGMENT: 13
MAY 2016
JUDGMENT
MANAMELA
AJ
Introduction
[
I
]
This
is
an
application
based
on
rule
46( I
)(a)(ii)
of
the
Uniform
Rules
of this
Court.
[1]
The
Bank
seeks,
in
terms
hereof,
an
order
declaring
immovable
property,
belonging
to
the third
respondent and his wife specially executable in order to satisfy
judgment
obtained against the
three
respondents
cited
above.
I
hasten to
point out
that
the
third
respondent's wife
is not a
party to the proceedings.
[2]
Background
[2]
The
second and
third
respondents were
or
are
d
irectors
of
the
first
respondent
(the
Company).
The Company had an overdraft facility in terms of which an amount of
R I
900
000.00 was lent and advanced
by the
applicant
(the Bank)
to the Company. As security,
the
Bank
caused
to
be
registered
a
mortgage
bond
over
immovable
property
of
the Company
(Erf
2434).
[3]
The
second
and
third
respondents stood surety for
(and
also
bound
themselves
as principal debtors with) the Company in respect of its indebtedness
to the Bank.
[3]
When
the
Company
defaulted
on
agreement
pertaining
to
the
overdraft
facility,
the Bank
took
legal
action
against
the
Company,
second
and third
respondents.
It sought
and
was granted
summary
judgment
against the
respondents
on 05 May
20
II
for payment
of
an amount
of R I
964
265.66.
[4]
Thereafter,
the Bank
sold
in
execution
Erf 2434,
the only
property of the
Company.
The sale of
this property
yielded
an amount
of R385
000.00.
[5]
The Bank
then turned
to
the
second
and
third
respondents
for
the
balance
of the
judgment debt.
The
second
respondent made
arrangements
with
the
Bank
to
pay
off
the
debt
in
monthly
instalments
of R l
500.00.
The third
respondent
did
not
make
any
arrangements.
Attempts
to
execute
on the
third
respondent's
movable
property
resulted
in a
nulla
bona
return
by the
sheriff.
This,
in the
main,
triggered
this
application,
which
is opposed
by the
third
respondent
(Mr
Marx).
[6]
[4]
The matter came before me on 17 February 2016 and after hearing oral
arguments from Ms M Riley, for the Bank, and Mr Prinsloo,
for the
third respondent, I reserved this judgment. However, I still
encouraged the parties to make attempts towards an amicable
resol
ution of the matter and let me know by not later than 19 February
2016. Evidently, no amicable resolution was reached, but
I am
grateful for the parties' efforts in this regard.
The
Bank's case
[5] According
to the
Bank,
Mr
Marx,
unlike
the
second
respondent,
has made
no
attempts to
settle
or
reach
some
arrangement
with
the
Bank
regarding
the
outstanding
judgment debt. As
indicated
above,
attempts
to
execute
on Mr
Marx's movables
yielded
a
nulla
bona
return.
[7]
This,
together
with
Mr
Marx's
submissions
in
his
opposing
papers
that
his
financial
situation
does
not
permit
him
settling
his
indebtedness
to
the
Bank,
bolstered
the
Bank's
case
for
an order
sought
in
terms
of
this
application.
The
Bank
says its
only
hope
of recovery
of
its
debt is
in
the
sale
in
execution
of
Erf
63
Three
Rivers
(the
Property),
hence
this
application
for same
to
be
declared
specially
executable.
Mr
Marx
holds
50%
share
in
the
Property
and
his wife
(Mrs
Marx)
[8]
holds
the
other
50%.
They
are
married
to each
other
out
of
com
m
unity
of
property.
[6]
The
Bank
has
a mortgage
bond
over
the
Property in
an
amount
of
R2 600
000.00.
[9]
I
think
it is
necessary
to belabour
some points
here. This
mortgage
bond
has nothing
to do with
the judgment or
indebtedness
of
Mr
Marx
to
the
Bank,
or
at
least
not
directly
so.
Erf
2434,
alrea
d
y
sold
at
the
instance
of
the
Bank,
was
the
direct
object
of
the
Bank's
security.The
Property is
in
the
picture, so
to speak,
by virtue
of
the
suretyship
signed by Mr
Marx to
secure
the
overdraft
facility
granted
to
the
Company.
The
corollary
of this
is that
the
suretyship
will
only
apply
to
the
half
share
in
the
Property
held
by
Mr
Marx.
Therefore,
this
application is
about
the
half
share
belonging
to
Mr
Marx,
which
the
Bank wants
declared
specially executable.
[7]
It is
also
common
cause
between
the
Bank
and
Mr Marx
that
there
is no
breach
of the
mortgage bond loan agreement
between the
Bank and Mr and Mrs Marx relating to
the
Property.
It
appears
Mr
and
Mrs
Marx, have
kept
payments
to
the
Bank
up-to-date
in respect
of
the
mortgage
bond
loan
account
for the
Property.
[10]
Mr
Marx
pays
the
monthly
instalment
on
the
house
in
an
amount
of
around
R
I
9 000.00.
This
is
said
to
be
slightly
more
than
the actual
monthly
instalment
stipulated
by the agreement
with
the Bank.
[11]
The outstanding amount
or balance
on
the
mortgage
bond
account
was
R2 405
305.98
as
at
08
March
20
1
5.
[12]
The
Bank
says the
closing
balance
was
R2 395
585.95,
excluding
interest,
on 27 May
2015.
[13]
It
is
subm
i
tted
that
all
relevant
circumstances envisaged in
terms
of
rule
46(1
)(a)(ii)
and
prescribed
in
applicable case law supports the Bank's case for execution.
[14]
Mr
Marx's
case
[8]
As indicated above, Mr Marx opposed this application. The other two
respondents are not taking part and Mrs Marx is not cited
as a party.
I will revert to the latter issue later below.
[9]
Mr
Marx's
opposition
is based
on more
than
one ground.
Although,
not
necessarily
a ground of
opposition,
he
bemoans
the
fact
that
Erf
2434
was
sold
for
only
R385
000.00,
despite a higher
valuation
in
excess of
R2 600 000.00 placed
on the
property
by
the
Bank.
[15]
He
says that him or the second respondent
ought not
to be blamed
for the
yield
of
an amount
lower
than the market price from the sale. The Bank allowed this to happen,
he submits. He does not really say what he would have
done
differently to sell Erf 2434 for more. Therefore, nothing turns on
this latter issue for current purposes.
[1
O]
As
indicated
above,
Mr
Marx
also
says
he
does not
earn
sufficient
income
and
does
not possess
sufficient means
to
pay off
the
judgment
debt or
part
thereof.
However, he
disputes the veracity of
the
sheriff's
nulla
bona
return,
without saying
much.
[16]
He also submits, rather curiously
so in my
view, that the Bank has not exhausted
all
avenues, including
the
financial
investigation
in
terms
of
section
65D
of
the
Magistrates'
Courts
Act
32
of
1
944
(the
Magistrates
Court
Act)
[17]
• This
submission
is
curious,
but
perhaps.
with
respect,
even
absurd. The question that
immediately
comes to mind, which was also understandably
so
reiterated by Ms Riley appearing for the Bank, is what such process
would yield
if
in
Mr
Marx's
own
words
he
does
not
earn
sufficient
income
and
has
no
means
to satisfy
the
judgment.
[11]
Mr Marx's main ground of opposition is located in the argument that
the Property is his primary residence and that of his family.
His
family comprises three minor children, his wife and himself. His wife
is currently unemployed and he is the sole breadwinner.
He submits
that execution of the Property will severely prejudice him and his
family. They will lose access to housing. which will
be more
prejudicial to them than the Bank. The Bank is one of the largest
financial institution in the country; financially strong
and is
litigating from a position of power, he adds.
[12]
He
also
submits
that
the
execution
of
his
50%
share
in
the
Property
will
not
be
practical
or
financially
feasible. A
purchaser
of his
share would
end up with
a cohabiting the Property
with his
family.
Considering
this
and the
current valuation
of the
Property,
sale in
execution of the Property would not fetch much.
[18]
He
estimates that the Property may fetch a high price
of R2 600
000.00 and low price of R
l
530 000.00
on sale.
[19]
The significance
of
these
values or postulations would become clearer below.
[20]
[13]
What is noteworthy from Mr Marx's submissions is that he does not
give any suggestions as to how his indebtedness to the Bank
could be
settled. I
will deal below with the implications of this
disposition, together with other issues to be identified next.
The
issues
[14]
As
indicated above
the
application is
premised on
rule 46(l
)(a)(ii) of
the Unifonn
Rules of this Court.
[21]
This
rule
has
enjoyed
greater
attention
of our
Courts
in
the
recent
past,
including
at
the
highest
level
of
our
Courts.
[22]
The
implications
of
the
rule
(as
it
was
before
amendments)
to
section
26(1
)
of the
Constitution
of
the
Republic
of
South
Africa,
1996 (the Constitution)
were
dealt
with
in
these
cases.
[23]
From
the
case
law
generated
by
the
rule
and
the
rule
itself,
an
applicant
for an
order
currently
sought
by
the
Bank
herein,
ought
to
adduce
evidence
on
some
factors
or
circumstances
for
consideration
by
the
Court, for
purposes
of
an order
for
execution
against
immovable
property,
which
is
a
primary
residence.
Although
the rule
doesn't
specify
what
the
''relevant
circumstances"
are,
our
Courts
came
to
the
rescue,
so to
speak, in
this regard.
[24]
However,
the
peculiar
issues
in this
matter present
an
opportunity
of
consideration
of a
broader
range
of issues,
which
may
be
unconventional
to rule
46(1)(a)(ii). I
expand
on this
below.
[15]
From what appears above, particularly regarding the contending
parties' respective cases, the following are the issues to be
determined for disposal of this application:
1
the
circumstances and implications of .the
nulla bona
return by
the sheriff on Mr Marx;
•
the fact that the
Bank is said not to have exhausted all avenues, including the
financial investigation or enquiry in terms of section
650 of the
Magistrates' Courts Act;
•
declaration of execution of immovable property wherein the execution
debtor only holds a share;
•
practicality or
financial feasibility of execution of Mr Marx's 50% share in the
Property, including the price the sale is likely
to fetch considering
current valuation and co-habitation;
•
other relevant
circumstances in terms of rule 46(1 )(a)(ii).
[16]
I proceed to utilise the above issues, some combined, as subheadings
for further discussion under the next main heading.
Analysis
of the facts/issues against applicable legal principles
[17]
As indicated above, the main legal principle here is rule 46(
1)(a)(ii) of the Uniform Rules of this Court. Rule 46(l )(a),
incorporati11g the aforesaid sub-rule, reads:
"No
writ of execution against the immovable property of any judgment
debtor shall issue unti l -
(i)a return shall
have
been
made
of any
process
which
may
have
been
issued
against the
movable
property
of the
judgment
debtor
from which
it appears
that the said person has not sufficient movable property
to satisfy
the writ or
(ii) such
immovable
property
shall
have
been
declared
to
be
specially
executable
by
the
court
or,
in
the
case
of
a judgment
granted i
n
terms
of
rule
31
(5),
by
the
registrar:
Provided
that. where
the
property sought to
be
attached is the primary residence
of
the judgment debtor,no writ shall
issue
unless the court, having considered all th
e
relevant
c
i
rcumstances,
orders
execut
ion
.
against
such
property
.
"
[25]
·
[underlining
added for emphasis]
[18]
Our
Courts
have
already
clarified
that
the
underlined
portion
in the
rule
is the
proviso
which
is
applicable
to both
(i) and
(ii) of the
rule.
[26]
Therefore,
even where
a
nulla
bona
return
was made
against a
judgment
debtor, no execution against immovable property
which
is primary
residence
of the
judgment debtor
is
possible,
unless
ordered
by
the
Court.
This
is the case
in
this
application.
There
was
a
nulla
bona
return,
but
because
the
immovable
property
sought to be attached
is a
primary
residence,
no
writ
shall
issue
without
an
order by this Court upon
consideration
of all
relevant
circumstances
for
execution.
The
null
a bona return and financial
investigation or enquiry in terms of section 65D
o
(the
Magistrates Courts Act
[19]
Mr
Marx denies
making
statements
attributed
to
him in
the
sheriff's
return.
[27]
But,
I
hasten
to
mention
that,
I
consider
it
highly
improbable that
the
sheriff
of
this
Court
would
attribute
statements
to
Mr
Marx
without
him
saying
so.
[28]
But,
even
if one
was
to
accept
for a
moment that
Mr Marx did
not make the impugned
statements
to the sheriff, Mr Marx doesn't state how his responses would
have been
different to the same questions. This clearly doesn't matter,
as
in
Mr
Marx's
own
words
under
oath
he
says that
he
does
not
possess
the
means with
which
to meet
the
judgment.
[29]
Therefore,
I do not
see how
there
could
be
any dispute
about
the
sheriff's
nulla
bona
return,
save
for
purposes
of
an academic
debate.
I
accept
the
sheriff's return herein as sufficient for purposes of rule
46(1)(a)(ii).
[30]
[20]
As
stated
above,
Mr Marx,
unlike
the
second
respondent,
made
no
attempts
to
settle or
make
arrangements
to
settle
the
outstanding
amount.
However,
in
both
written
and
oral
submissions
by
Mr
Prinsloo
appearing
on behalf
of Mr
Marx,
it is
contended
that
the
Bank should
have
initiated a
financial
enquiry
in
the
Magistrates'
Court
through
transfer
of
the
judgment
in
terms
of
section 65M
of the
Magistrates'
Court
Act.
[31]
But,
as
indicated
above,
Mr
Marx
doesn't say
what the
enquiry
would
reveal in
terms of
disposable
property. It appears that no tangible benefit would be obtained by
transfer of the matter to
the
Magistrates'
Court
debtors'
enquiry,
save
perhaps
for
a general
financial
enquiry.
It ought to
be mentioned
in this
regard
that
Mr Max pays more than the required
monthly
instalment
in
certificate."respect of the Prope1
1
y.
Perhaps this issue and more may benefit from the suggested debtors
court enquiry in terms of section 65D of the Magistrates'
Courts
Act.
[32]
Declaration
of executabilit
y of 50% share in
immovable
property
[21]
The intriguing issue of this matter is the fact that the declaration
of executability is only with regard to a portion of the
Property. As
stated above, Mr Marx holds only 50% share in the Property. The
question that immediately comes to mind is how will
the declaration
be carried out when the holder of the other 50% share, being Mrs Marx
doesn't patently harbour the same interests
as the execution
creditor? Even if a sale eventuates, how will the purchaser enjoy
his/her/its half share? The same applies to
Mrs Marx and all those
who will be occupying the Property through her authority after the
sale? Will they still be held to have
access to adequate housing? I
revert to these issues below.
Non-
joinder of Mrs Marx as the holder of the other 50%
share in the Property
[22]
The other aspect of this matter which does not appear to be of
concern to the parties, but is of concern to the Court, is that
Mrs
Marx is not cited as a party in this application. In my view she has
a direct and substantial interest and ought to have been
joined to
the
application.
[33]
The order
sought clearly affects her rights. I will also indicate below the
import of this to this application.
No
breach in respect of the mortgage bond for the Property
[23]
This is additional or complementary to what is immediately stated
above. It is common cause that at all material times there
was no
breach of the agreement underlying the mortgage bond in respect of
the Property. The breach by Mr Marx occurred in respect
of other
relationships or agreements. The mortgage bond loan account for the
Property appears to be up to date. Ordinarily, issues
of execution
would not feature, for the Property. But this is no ordinary matter.
This issue, as well, is significant for a determination
to be made
herein.
Financiall
y
feasibility of the envisaged sale in execution
[24]
In
his
opposition
to
the
relief
sought
herein,
Mr
Marx
pointed
out
that
the
Property
may
fetch
an
amount
of
R2 600
000.00
on
the
high
and
R
l
530 000.00
on
the
low.
On
the high
side and
with
an
outstanding balance
of around
R2 400
000.00
[34]
there would
be a profit
of
R200 000.00
for division between
the
shareholders in the Property,
after
settling the balance owing to the Bank. Therefore,
Mr Marx
would
be
able to pay
from
his
50% share
of the
profits an
amount of
R
l
00
000.00.
[35]
The
Bank
heavily
relies on
this for
its
case
for
execution
of the
Property.
[36]
However,
there
is no
submission
as to what
would
happen
if the
Property
fetches
lower than
the
postulated
amount
in
an
open
market.
Will
the
Bank,
as the bond
holder
over
the
Property,
accept
a purchase
price
lower
than
reasonable
value
for the
Property?
If
so, will
this
constitute
reasonable
exercise
of the
Bank's
rights
and
no
abuse
of process?
What if Mrs Marx insists on sale for profit? These are questions or
factors worthy
of
consideration
for
purposes of the order sought herein.
Other
relevant circumstances
in terms o( rule .:/
6(])(a
)(ii)
[25]
As
indicated
above, the
rule 46(l )(a) has
been
a subject
of a vast
amount
of case law
in
the
last
few years.
Primarily
the
cases
have
been
a quest
to
ensure
the
realisation
of the
constitutional
rights
contained
in
sections
26
of the
Constitution.
[37]
Section
26 provides
"the
right
to have
access to
adequate
housing"
and proscribes
evictions
without
a
court
order
and legislation
allowing
arbitrary
evictions.
It has to
be
understood
in
the
light
of our
history
of
forced
removals
and
unlawful
evictions
in
South
Africa.
[38]
These,
in
the
main,
affected
the
poor and
black
South
Africans.
[26]
However,
from
the
decision
in
Jafiha
v
Schoeman
and
Others:
van
Rooyen
v
Stoltz
and
Others,
[39]
it
is
clear
that
section
26
of
the
Constitution
is
not
only
meant
for
the
poor
segment
of
communities.
[40]
It applies
to
all
South
Africans.
Although
the
circumstances
in
Jaftha
were
punctuated
by
elements
of
dire
poverty,
[41]
the
following
passage
from
Jaftha
is
significant in this regard: "Section
26
must
be
seen
as
mak
i
ng
that
decisive
break
from
the
past.
It
emphasises
the
impo1
1
ance
of adequate hous
i
ng
and i
n
particular sec
u
rity
of tenure
i
n
o
u
r
new constitutional democracy.
The
i
ndignity
suffered
as a result
of
evictions
from
homes,
forced
removals
and the
relocation
to
land
often
wholly
i
nadequate
for housing
needs
has
to
be
replaced
with
a system in
which the
State
must strive to provide
access
to adequate housing for all
and,
where that exists, refrai
n
from permitting people to be removed
unless it
can be
justified."
[42]
[underlining
added for emphasis]
[27]
Obviously,
it
is
beyond
reasonable
argument
that
execution
of housing
property
has far
more
severe
impact
on
indigent
debtors
than
the rest
of us,
[43]
especially
in
cases of
state-
aided
housing
[44]
and
execution
of houses
due to
trifling
debts.
[45]
However,
there
is nothing
in
section
26
itself
to
warrant
a
view
that
only
access
to
adequate
housing
by
poor
people
is
protected.
This would
obviously
have
had
implications
relating
to
the
equality
clause
in the
Constitution
[46]
and
its
limitation
clause.
[47]
Therefore,
despite
the
Property
being
in
the
upper
echelons
of
society,
it
enjoins
the
legislative
protection
available.
I
will
also
return
to
this
aspect.
[28]
The case law on this rule has been about the declaration
of
immovable property
which is
primary
residence,
as
specially
executable.
Invariably
the
execution
is
at
the
instance
of
financial
institutions
or banks
which
would
have
provided
the
finance
to purchase
the house
or immovable
property,
which
is the
subject matter
of
execution.
This matter
is of a
different spin.
so
to speak.
The
property
sought
to
be
declared
specially
executable
was
financed by
the
Bank,
but
the
execution
debt
or judgment
arose
from
a
different
liability
and
agreement.
Therefore,
the
voluntary
assumption of
risk
argument
which
generally
is
to
the
effect
that
a debtor
places
his/her
property
at risk
by
bonding
it
to the
creditor,
becomes
more
complicated
here. More so, due to the existence of the suretyship agreement.
[48]
Is the suretyship agreement such
assumption
of
risk
by
the
debtor
like
Mr
Marx?
I
do
not
consider
an
answer
to
this
question significant for current purposes.
[29]
Further,
rule 46(1)(a)(ii)
applies to
any property
which
is the
primary
residence
of the
judgment debtor. This is so for this matter. The Court has to
consider all relevant circumstances before ordering execution.
It
has
already
been found in
this
division
and elsewhere
that
relevant
circumstances means
"legally
relevant
circumstances".
[49]
The
Constitutional Court gave examples of such circumstances in
Jaftha
[50]
0
and
added to the list in
Gundwana
v Steko Development
and
Other
[51]
1
Although,
the decision in
Standard
Bank of
South
Aji-ica Ltd v Saunderson
[52]
was overturned, the Constitutional Court did not discard the
practical
rules
prescribed
in this
matter.
[53]
They remain
helpful.
In
Firstrand
Bank
of
South
Africa
Ltd
v
Folscher
and
Another
[54]
the
full
court
of
this
division
provided
a
full
list
of
factors
[55]
to be taken in consideration as relevant circumstances for purposes
of rule 46(1)(a)(ii). In
this
matter, the
parties have
provided
what they
consider relevant circumstances
for
consideration
by
the
Court.
Most
of
these
are
indicated
above
under
the
headings regarding the parties'
respective
submissions.
Therefore,
some of
the
relevant factors or circumstances
are not
repeated.
[30]
I
begin
this with
the
common
cause
factors.
The
Property
is
the primary
residence
of Mr
Marx
and
his
family.
Monies
due
in terms
of
the
judgment debt
did
not
originate
from
monies
advanced
by
the
Bank
in
respect
of
the
Property.
[56]
No
breach
of
the
terms
of
the
mortgage
bond
agreement
relating to
the Property
has
occurred. Mr Marx
holds half
share of
the Property.
[31]
The Bank submits that it is not driven by any ulterior motive m
bringing this application: it complied with all relevant
legal
provisions and has no option, but to sell the Property in execution
as Mr Marx had declared his indigence.
[32]
As circumstances advanced against the granting of an order sought
herein Mr Marx made the following submissions. He submits
that he
would suffer prejudice, together with members of his family and lose
access to housing, if the Property is sold. He does
not earn
sufficient income and does not possess of sufficient means to pay the
judgment debt or part thereof. The Property would
not yield much
through sale in execution and the result of the sale will be
co-habitation by the purchaser with his family after
sale in
execution. The Bank has not exhausted all avenues, including the
financial investigation in terms of section 65 of the
Magistrates'
Courts Act.
[33]
It
is
true
that
execution of
the
Property would affect Mr
Marx's
and
his
fam
il
y's
housing or
residential
requirements.
They will
be without residence upon
sale of the
Property and face
possible
eviction in the event of
delayed
departure. However, on
the basis
of ava
i
lable
facts,
Mr
Marx is
clearly
not
indigent.
He
pays
around
R
I
9 000.00
in
monthly
installments
for
the
Property. He
will be
able
to
acquire
a
new
house or
have access
to adequate
housing,
even
if
it
is
on
a
rental
basis.
His
right of
access
to
housing
does
not
"encompass
an
entitlement
to
the
ownersh
i
p
of housing;
entitlement
to
a
particular
fom1 of
housing
..."
[57]
Therefore,
sale of the
Property
would
not
take away
Mr Marx's right
of access
to adequate housing
or that
of his
family.
[34]
However,
there
are
other
features
of
this
matter
that
are
of
concern
to
me.
One
of them
is
that,
despite
Mr
Marx
only
holding
a half
share
in
the
Property
whose
execution
is sought,
the
holder
of
the
other
half
share,
being Mrs
Marx has
not
been
joined
to
these
proceedings.
She
is
clearly
an
interested
party
whose
rights
and
interests
would
be
affected by
an order of
execution.
This would not be limited to
the right
of
access
to adequate
housing,
but
her
rights
of an
economic
or
commercial
nature.
She is
married
out
of
community of
property to
Mr
Marx
and
therefore
there
is
no
convergence
of
patrimonial
rights.
She
has a say about the real
and
material
issues in
this matter.
[35]
The other feature that is of concern to me, is that execution is
sought in relation to a relationship between the Bank and
Mr Marx in
which Mr Marx appears to be complying with his obligations. I am not
suggesting here that this is not permissible in
terms of law. I am
also not implying that it is so permissible. I do not consider the
issue to require a finding for
purposes
of this matter. The Bank appears unconcerned by this. This may not be
unreasonable conduct on the pai1 of the Bank, but
the Bank ought to
have acted more proactively under the circumstances. For without such
proactivity, the Bank's case in this regard
lies on not so strong
grounds. I say this because the Bank assumed on the basis of
projections made available by Mr Marx that sale
of the property would
yield some return. Even this assumption only considers the higher
projections stated in Mr Marx's papers.
There is no submission as to
what would happen if the market place produces purchasers at the
lower end of the projections. Is
the Bank prepared to upset -by
selling the Property for less - the seemingly uneventful relationship
with Mr and Mrs Marx in terms
of the mortgage bond loan account, due
to breaches emanating from elsewhere? In my view, these issues need
to be thoroughly investigated
and the Bank may need to acquire its
own valuations in respect of the Property and also declare whether it
would only sell for
a profit or not. The Property can never be sold
for a price unreasonable to Mr<> Marx. And this Court cannot
mero
motu
determine and impose reserve price for
the Property. It is also not without complications to order
executability on an assumption
that the Property will be sold for an
amount within a specified threshold. Such an order may be difficult
to implement and may
even be overly assumptive of the dictates of the
housing market. These, in my view, are reasonable concerns. I
consider them relevant
circumstances which affect the granting of the
order sought herein. We are dealing here with a family's primary
residence in which
a third party not cited in the litigation has an
equal share.
Conclusion
[36]
For the abovementioned reasons, I will postpone this application
sine
die.
This will be to allow the Bank to consider what is
stated above and if so minded or advised re-enrol the matter for
adjudication.
It will also be open to the Bank to consider referring
the matter to the Magistrates Court for a debtors' enquiry in terms
of section
65M, read with section 65D of that court, should the Bank
bear some hope that same would yield some kind of benefit. I will
include
this aspect in the order, due to the fact that Mr Marx
actually appears to favour it. The postponement is also to allow Mrs
Marx
to be given an opportunity to join in the proceedings or for the
parties to join her as a party. I reiterate my view that, she has
an
interest qualifying her to be a party in this application or at least
to say something, if she is so minded or advised.
[37]
Despite
the
finding
reached
above and
the concerns
I raised,
in my view,
the Bank
is
entitled
to
the
costs
of
this
application
to
the
date
hereof.
This
notwithstanding
that
the
Bank's notice
of motion
did not include a prayer
for costs
and notice was in the Bank's heads of argument.
[58]
Mr
Marx,
as a
respondent,
had
prayed
for a
punitive
costs
order
on attorney
and
client
basis
against
the
Bank.
[59]
There
is
no
basis
for
this.
The
Bank
in
bringing
this
application was not influenced
by an
ulterior motive
or being
in a quest
to abuse the process
of this
Court. The
Bank's options were, in a way, limited to this application. And Mr
Marx's conduct
in not
unequivocally
declaring
his
financial
position
or making
attempts to
arrange for
payment of
his
debt,
is
one
of
the
reasons
why
the
possible
options
of
the
Bank
are
limited.
The
costs
order
to
be
made
herein
will
not
be
limited
to
wasted
costs
due
to
the
postponement
of the
application, but all party and party
costs of
the application as at the date of the order.
Order
[38]
In the premises. I make the following order:
1
. The application i s postponed
sine
die:
2.
The applicant may refer the matter to an enquiry in terms of section
65M, read with
section 65D
, of the
Magistrates' Courts Act 32 of
1944
;
3.
The third respondent is liable to the applicant for all party and
party costs of this application to date hereof.
4.
Copies of all documents in the :application and relevant documents
from the action, including this order be served on Mare Adre
Visser
in the event of re- enrolment of this application. together with a
notice of set .d.own.
K.
La
M.
Manamela
Acting
Judge
of the High
Court 13 MAY
2016
Appearances:
For
the Applicant: Adv M Riley
Instructed
by: Rorich Wolmarans & Luderitz Inc. Pretoria
For
the 3rd Respondent: Adv Prinsloo
(Heads
of Argument prepared by Adv N Erasmus)
Instructed
by:Rothmann Phahlamohlaka Inc. Pretoria
[1]
See par 14 below.
[2]
See par 22 below.
[3]
The applicant had registered a covering mortgage bond over P011ion 4
of Erf 2434 Three Rivers belonging to the first respondent
(the
Company) to secure an overdraft loan in an amount of R 1 900 000.00
on 03 April l 2007.
The
applicant had registered a covering mortgage bond over P011ion 4 of
Erf 2434 Three Rivers belonging to the first respondent
(the
Company) to secure an overdraft loan in an amount of R 1 900 000.00
on 03 April 2007.
[4]
Judgment
was granted jointly and severally against all three respondents, the
one paying the other to be absolved. See par 9.2
of the founding
affidavit on indexed p 6; a copy of the summary judgment order
attached to the founding affidavit as annexure
''A" on indexed
pp 1 1 -12.
[5]
See pars 9.4-9.5 of the founding affidavit on indexed pp 6-7.
[6]
See par 9 below.
[7]
See annexure “C” to the founding affidavit on indexed p
1 5.
[8]
I have assumed for purposes of the order to be made herein that Mare
Adre Visser reflected on a copy of the "Windeed"
extracts
(i.e. annexure "D" to the found ing affidavit) is Mrs Marx
and the holder of 50% share in the Property. See
indexed pp 1 6-17.
[9]
See par 4.6 of the opposing affidavit on indexed p 26.
[10]
See statement of account included as annexure ''HM" to the
opposing affidavit on indexed pp 40-41 .
[11]
See par 20 below.
[12]
See annexure ''H M" on indexed p 41 .
[13]
See par 5.4 of the replyi ng affidavit on indexed p 52.
[14]
See par 25 onwards.
[15]
See par 4.4 of the opposing affidavit on indexed p 26.
[16]
See par 1 1 .1 of the opposi ng affidavit on indexed p 32.
[17]
The financial investigation or enquiry is initiated in terms of
section 65M of the Magistrates Courts Act by referral to that
court
of a judgment of the High Court.
[18]
See par 4.13 of the opposing affidavit on indexed p 28; a valuation
report attached to the opposing affidavit as annexure "M''
on
indexed pp 36-39.
[19]
Ibid
[20]
See par 35 below
[21]
See par 17 below.
[22]
See par 26 onwards.
[23]
Ibid
[24]
See para 29 below
[25]
Rule 46(1 ) of the High Court Ru les was amended with effect from 24
December 201 0.
[26]
See Standard Bank of South Africa Ltd v Bekker and Another and Four
Similar Cases 201
1 (6) SA 1
1 1 (WCC) at I 1 6B- l 17A.
[27]
See par 1 1 .1 of the opposing affidavit on indexed p 32.
[28]
In terms of the sheriff s return of service the sheriff says that
"after I demanded payment of the amount due, I was informed
by
the PA RTY SERVED - 3RD DEFEN DANT that it was impossible to pay the
amount claimed or any sum. Except property exempted by
law ... no
prope11y or assets could. after enquiry, be pointed out to satisfy
this writ. Despite a diligent search and enquiry
I could not find
sufficient disposable property to satisfy this writ. I therefore
make a return of N U LLA BONA." See annexure
"C'' to the
founding affidavit on indexe p 15.
[29]
See par 4.9 of the opposing affidavit on indexed p 27.
[30]
See Barclays Nasionale Bank Bpk v Badenhorst 1 973(1) SA 333 (N) at
p 337 onwards.
[31]
Section 65M
of the
Magistrates' Courts Act reads
: ,; If a judgment
for the payment of any amount of money has been given by a division
of the Supreme Court of South Africa, the
judgment creditor may file
with the clerk of the court from which the judgment creditor is
required to issue a notice in terms
of
section 65A
(I ), a certified
copy of such judgment and an affidavit or affirmation by the
judgment creditor or a certificate by his attorney
specifying the
amount still owing under the judgment and how such amount is arrived
at, and thereupon such judgment, whether
or not the amount of such
judgment would otherwise have exceeded the jurisdiction of the
court, shall have all the effects of
a judgment of such court and
any proceedings may be taken thereon as if it were a judgment
lawfully given in such court in favour
of the judgment creditor for
the amount mentioned in the affidavit or affirmation or the
certificate as still owing under such
judgment, subject however to
the right of the judgment debtor to dispute the correctness of the
amount specified in the said
affidavit or affirmation or
[32]
Section 650
of the
Magistrates' Courts Act reads
i n the material
part: "On the appearance before the court of the judgment
debtor ... on the return day of the notice referred
to in
section
65A
(!) or (8) ( b), i n pursuance of his or her arrest under a
warrant referred to in
section 65A
(6), or on any date to which the
proceedings have been postponed. the court in chambers shall,
subject to the provisions of subsection
(2) of this section, call
upon him or her to give evidence under oath or affirmation on his or
her financial position ..., and
the court shall permit the
examination or cross-exam nation of the judgment debtor ... on all
matters relevant to the judgment
debtor's financial position and his
or her ability to pay the judgment debt, and the court shall receive
such further evidence
as may be adduced either orally or by
affidavit or in such other manner as the court may deem just. by or
on behalf of either
the judgment debtor or the judgment creditor, as
is material to the determination of the judgment debtor's financial
position
and his or her ability to pay the judgment debt, and for
the purposes of such evidence witnesses may be summoned in the
manner
prescribed in the rules."
[33]
See generally Cilliers AC, Loots C and Ne! HC Herbstein and Van
Winsen The Civil Practice of the High Courts and the Supreme
Court
of Appeal of South Africa, vol 1 , 5111 edition (Juta Cape Town
2009) on p 21 7 onwards.
[34]
According to the applicant the closing balance on the mortgage loan
account amounted to R2 395 585.95, excluding interest, on
27 May
2015. See par 5.4 of the replying affidavit on indexed p 52.
[35]
See pars 4.13-4.14 of the opposing affidavit on indexed pp 28-29.
[36]
See par 5.4 of the replying affidavit on indexed p 52; par 3.4 of
the applicant's heads of argument.
[37]
Section 26 of the Constitution reads as follows in the material
part: "( I ) Everyone has the right to have access to adequate
housing. (2) ...(3) No one may be evicted from their home ...,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions."
[38]
See Jaftha at pars 25-29.
[39]
2005 (2) SA 1../
0 (CC) (Jafiha).
[40]
See Jqfiha at par 29.
[41]
See Jaftha at par 30.
[42]
See Jaflha at par 29.
[43]
See Ja.ftha at par 43.
[44]
44 See Jaftha at par 35.
[45]
See Jaftha at par 40.
[46]
Section 9 of the Constitution.
[47]
Section 36 of the Constitution.
[48]
See Gundwana v Steko Development and Others 201
1 (3) SA 608
(CC) at
pars 44-49; Jaftha at par 58;Firs/rand Bank of South Africa Ltd v
Fo!scher and Another 201
1 (4) SA 314
(GNP) at pars 24; 38-39.
[49]
See Firs/rand Bank of South Aji-ica Ltd v Folscher and 4nother 201
1
(4) SA 314
(GNP) at 330C-D; Standard Bank of South Africa Ltd v
Bekker and Another 201
1 (6) SA 1
1 1 (WCC) at 129C.
[50]
See Jaftha at 161 1-1638.
[51]
201
1 (3) SA 608
(CC) at 626F-G.
[52]
2006 (2) SA 264
(SCA) (Saunderson).
[53]
' See Saunderson at 227C-F.
[54]
201
1 (4) SA 314
(GN P) ( Folscher ).
[55]
See Fo!scher at 336A-G.
[56]
See par 28 above, and particular footnote 48, also above.
[57]
See Jaftha at par 13
[58]
See 10.4 on p 1 1 of the applicant's heads of argument.
[59]
See par 14 of the opposing affidavit on indexed p 34.