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[2016] ZAGPPHC 884
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Standard Bank of South Africa Limited v Mampuru and Others (1787/2015) [2016] ZAGPPHC 884 (15 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 1787/2015
15/9/16
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED Applicant
and
JOSEPH
MAMPURU First
Respondent
THE
SHERIFF OF THE HIGH COURT,
MIBIBANE Second
Respondent
NOTHANDAZO
MIRRIAM
MAHLANGU Third
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The applicant requests,
inter alia,
an order in terms of which
the sale in execution of Erf […] Vaalbank-A Township,
Mpumalanga ("the property") to
the third respondent on 30
November 2015 be cancelled.
[2]
The third respondent opposes the relief claimed.
Background
[3]
The applicant obtained default judgment against the first respondent
and a warrant of execution in respect of the property.
[4]
According to the Conditions of Sale of Immovable Property, the
property was sold to the third respondent on 30 November 2015
for an
amount of R 40 000, 00.
[5]
I pause to mention that the outstanding balance at the time of the
sale was R 244 980, 03, resulting in a shortfall after the
sale of
more than R 200 000, 00.
[6]
Prior to the commencement of the sale in execution, the first
respondent was granted an opportunity to pay the arrears on the
account in order to prevent the property from being auctioned.
[7]
From the documents attached to the founding affidavit it is clear
that the arrears were paid at 10:02:48 on 30 November 2015,
whereas
the property was sold at approximately 10:19. The condition
preventing the auction from proceeding was therefore met before
''the
hammer fell''.
[8]
In the circumstances, the applicant requested the third respondent to
consent to the cancellation of the sale. The third respondent
refused, which refusal led to the present application.
Point
in limine
[9]
The third respondent opposed the application not only on the merits,
but also raised several points
in limine
. Mr Coetzee, attorney
on behalf of the third respondent, quite correctly conceded during
argument that the third respondent could
not succeed on merits of the
application.
[10]
Mr Coetsee, however, indicated that the third respondent persists
with one of the points
in limine,
to wit that the founding
affidavit does not set out sufficient facts to establish a
prima
facie
case.
[11]
In support of this contention, the third respondent relies on the
fact that the founding affidavit consists mainly of hearsay
evidence.
[12]
The founding affidavit was deposed to by Belinda Ann Brauns. The
paragraphs dealing with her authority and knowledge of the
facts of
the matter reads as follows:
"1. I am a
Manager in the Home Loans Legal, Personal and Business Banking Credit
Department,
a
division of the Standard Bank of South Africa
Limited, Registration number 19621000738106 ("the Applicant' ),
with business
address at 9th Floor, 5 Simmonds Street, Johannesburg,
Gauteng.
2.
I am
a
duly authorised to represent the Applicant herein and to
depose to this affidavit.
3.
I
have access to the Applicant's ledgers, books of account and files
and its attorneys' files pertaining to this matter and I have
for
purposes of deposing to this affidavit perused all relevant ledgers,
books of account and documents.
4.
I
have specifically perused the contents of Annexure "SB01"
attached hereto and to the extent that I have not been part
of
discussions recorded therein I respectfully refer the Honourable
Court to the confirmatory affidavits of Niki Stander and Monica
Dempers. Both of the aforementioned individuals are employed by the
Applicant's attorneys of record and they confirm that the content
of
Annexure "SB01" is a true reflection of the conversations
and e-mails which were exchanged between the relevant parties.
5.
I can therefore in
the circumstances state that the facts herein contained fall within
my direct knowledge and the facts do not
are allowable given the
source of the information and the purpose for which it is placed
before Court".
[13]
From the contents of the court file, it appears that Ms Brauns also
deposed to the affidavit in support of the default judgment
and
application for the issue of a warrant of execution. She therefore
has personal knowledge of the fact that default judgment
was granted
and that a warrant of execution was issued.
[14]
The payment of the arrear amount, the time of payment and the time of
the sale appears from e-mail correspondence and letters
attached to
the founding affidavit that was send or received by either Nici
Stander or Monica Dempers. Both of them deposed to
confirmatory
affidavits confirming the correctness of the e-mails and letters.
Personal
knowledge
[15]
It is trite law that the contents of a founding affidavit constitute
evidence that would have been led during a trial. In the
premises and
as general rule, Mr Coetsee is correct in submitting that the
deponent to the founding affidavit should have personal
knowledge of
the facts contained in the affidavit.
[16]
There are, however, exceptions to the rule.
[17]
In
The Master v Slomowitz
1961
(1) SA 669
T, the court held as
follows at 672 B - C:
"It may, however,
be that, where an application is brought personally, there is an
initial assumption in most cases that the
facts are within the
applicant's knowledge, whilst the converse is true in
a
case
where it is brought in
a
representative capacity. In
exceptional cases an application may be based on hearsay but then the
deponent must state that the a/legations
of fact are true to the best
of his information, knowledge and belief and state the basis of the
knowledge and belief and state
the basis of the knowledge or belief
Such basis may also emerge from the papers as
a
whole."
[18]
In the instant matter, the founding affidavit deposed to by Ms
Brauns, complies with the test formulated in the
Slomowitz
matter.
[19]
Consequently the allegations contained in the founding affidavit
support the relief claimed by the applicant and the point
in
limine
is dismissed.
ORDER
In
the premises, I make the following order:
1. The sale in execution
of Erf […] Vaalbank-A Township Mpumalanga ("the
property") to the Third Respondent on
30 November 2015 is
cancelled.
2. The Second Respondent
is ordered to refund the Third Respondent's payment of the purchase
price forthwith.
3. The Third Respondent
is ordered to pay the costs of this application.
______________________________________
N JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances:
Counsel
for the Applicant
:
Advocate Mollentze
Instructed
by
:
LGR INCORPORATED
Counsel
for the Third Respondent
:
Mr Coetsee
Instructed
by
:
PAUL COETZEE ATTORNEYS