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[2016] ZAGPPHC 1213
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Standard Bank of South Africa Limited v Letlhaka (31811/2002) [2016] ZAGPPHC 1213 (11 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 31811/2002
DATE:
11/11/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
STANDARD
BANK OF SOUTH AFRICA LIMITED
APPLICANT
And
SEGOGOBANE
NAPHTALI JOHN LETLHAKA
RESPONDENT
EXTEMPORE
JUDGMENT
NOBANDA
AJ:
INTRODUCTION
[1]
The
Applicant which is a bank obtained default judgment against the
Respondent on 23 January
2003
of
a loan agreement
in
the amount
of
R 150 263.89. The loan agreement related to the purchase of an
immovable property by the Respondent, to wit,
ERF
520 SOSHANGUVE FF TOWNSHIP, REGISTRATION DIVISION: J.R. PROVINCE OF
GAUTENG MEASURING 691 SQUARE METERS, HELF BY DEED TRANSFER
T107375/2000
("the
property").
As
security for the debt, the Applicant caused a mortgage bond to be
registered
over
the
property.
[2]
The
Applicant
has
now
brought
an
application
in
terms of Rule 46
(1)
(a) (ii) of the Uniform Rues for the property to be declared
specially executable.
The
Respondent is opposing the application.
THE APPLICATION
[3]
In
its application the Applicant alleges that the amount
at
the
time
the
application was brought, that was March 2016, the arrears had
increased to R226 234.49 evidencing arrear instalments in excess
of
74 months. At the time of bringing this application, the arrear
instalments were in excess of 114 months; that is approximately
9
years 8 months.
[4]
In
his opposing affidavit, the Respondent gives a long history of his
employment and/or lack
thereof
with
different
companies.
What however is of relevance is that from at least 2004 until 2010,
the Respondent was practising as an attorney. At
some stage during
this period, the Respondent ran his own practise under the name and
style SNJ Letlhaka Attorneys. Notwithstanding,
the Respondent never
even made a single payment towards the arrears on his mortgage loan
account with the Applicant to date.
[5]
Furthermore,
the Respondent, save
for
merely
stating
that
the
property sought to be executed upon is
his
primary
home
and
he
lives there with his 3 children, no proposal or anything
else
is said
about
paying his arrears. It appears the Respondent merely want to
stay
in
the property
free
of charge.
[6]
Rule
46
(1)
provides:
(a)
No
writ of execution against the immovable property of any judgment
debtor
shall
issue
until
–
(i)
a
return shall have been made of any process
which
may have been issued against the immovable 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 specially executable by
the court or, in the case of a judgment granted in
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 have been issued unless the court, having considered
all
relevant circumstances, orders execution
against
such
property."
The
purpose of the Rule is to give the court judicial
oversight
over
such
matters
prior
to
declaring
such
properties
specially
executable.
[1]
The court is also
required to
balance
the interests
of
the
debtor
and
those
of
the creditor.
[7]
In
doing so, the court has to
inter
alia,
consider
the proportionality
of
prejudice the creditor might suffer if execution was refused as
against the prejudice the debtor would suffer if such an order
is
granted.
[2]
[8]
The
Applicant is a bank whose business is to
grant
loans
to
consumers
for profit. The banks are the backbone
and
integral
part
of the economy of any country. Hence the court has to balance its
interests against those of the
debtor.
[9]
The
court's oversight can only be exercised if the judgment debtor
advances facts and contentions that the court has to take
into
account
in deciding such applications. For the court to make a determination,
it has to consider all the relevant facts before it
particularly
where the debtor,
like
in
casu,
has
had
the
opportunity
to
place facts before
court.
[10]
On
the facts of this matter,
the
Respondent
has
failed
to
show
cause
why the property
should
not
be
declared
specially
executable. As stated above, other than stating that the property
is
his
primary home which he occupies with his 3 children, no further
information was placed before court. What
is
of
more
concern
is
that the Respondent to date has not attempted to pay any amount
towards the loan agreement or arrears since January
2003.
Neither
is
there any proposal placed in
his
affidavit
on
how
he
intends
to
pay the arrears.
[11]
The
Applicant alleges that the amount now
owing
as
at
15
April
2016
is
R492
950.85.
The
property
has
been
valued
at
R500 000.00. How the Applicant came to the amount now owing is
not
clear. Be that as it may be, the Respondent appears not to be willing
to pay the Applicant any amount
whatsoever
towards
his
debt
as evidenced by his conduct set out
above.
[12]
In
the circumstances, the prejudice that the Applicant will suffer if
the
order is not granted far outweighs that of the Respondent. It does
not appear that the Respondent has any intention of paying
the
arrears or his debt towards the Applicant ever. As stated above, it
has been more than 9 years since the Respondent made any
payment
towards his loan agreement with the Applicant.
[13]
In
the premises I
make
the following
order:
I make an order in terms
of the Draft marked "X".
____________________
P.L NOBANDA
Acting Judge of the High
Court, Pretoria
[1]
First
Rand Bank v Folscher
2011
(4) SA 314
(GNP) p318
[2]
Ibid