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[2015] ZAGPPHC 60
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Changing Tides 17 (Pty) Ltd v Dilley and Others (35357/2009) [2015] ZAGPPHC 60 (11 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
Case No: 35357/2009
Date: 11 February
2015
Not reportable
Not of interest to
other judges
In the matter
between:
CHANGING TIDES 17
(PTY)
LTD
....................................................................................
Applicant
and
ELIZABETH JAKOBA
DILLEY
..............................................................................
First
respondent
SELBY PETER
PRINSLOO
.................................................................................
Second
respondent
UNICE ALDEAN
PRINSLOO
................................................................................
Third
respondent
JUDGMENT
VAN DER WESTHUIZEN,
AJ
1. This is an
application for declaring Erf 5288 Eersterust ext 6 Township,
Registration Division J.R, Province Gauteng, measuring
315 sqm, and
held by deed of Transfer no T74564/2007 specially executable.
2. Although the
respondents opposed this application and had filed heads of argument,
there was no appearance on behalf of the respondents
when the matter
was called. Counsel for the applicant advised me that his colleague,
who had filed heads on the respondents’
behalf, told him that
there would not be representation on the respondent’s behalf at
the hearing of this application.
3. I indicated that
in view of the sensitivity of the matter, the application being one
for declaring the mentioned property specially
executable, I would
deliver a written judgment. This is my judgment.
4. During March
2007, the first respondent entered into a loan agreement, coupled
with an Indemnity Bond in favour of the Applicant.
5. Second and third
respondents bound themselves jointly and severally as sureties and
co-principal debtors in respect of the aforementioned
agreements.
Second respondent is a previous son-in-law of the first respondent
and third respondent was married to the second respondent.
However
the second and third respondents have subsequently parted ways. Third
respondent no longer resides on the property.
6. The applicant
alleges that the respondents failed to timeously comply with their
obligations under the aforementioned agreements
and fell into arrears
with the monthly instalments. This is not disputed by the
respondents.
7. The applicant
proceeded in terms of the provisions of the
National Credit Act, no
34 of 2005
. A notice in terms of
section 129
of the Act was sent to
the respondents during May 2009. No response on the part of the
respondents was forthcoming and the applicant
caused a combined
summons to be issued and served upon the respondents. In the absence
of an intention to oppose the action, the
applicant obtained judgment
in the amount of R187 377.18 in respect of the unsettled amount under
the bond, including an order
for executability of the immovable
property the subject of this application.
8.
The aforementioned judgment was obtained by default and was granted
by the Registrar of this Court. This judgment was granted
prior to
the amendment of Rule 46(1) of the Uniform Rules of Court and prior
to the judgment in
Gundwana
v Steko Development & others
2011(3)
SA 608 (CC). In that judgment the Constitutional Court declared the
granting of execution orders in respect of immovable
property by the
Registrar to be unconstitutional.
9.
In view of the
Gudwana
judgment,
supra
,
the order for execution granted by the Registrar is of no force or
effect. The applicant was consequently obliged to approach
this court
for the order it now seeks.
10. Despite the fact
that the applicant has granted the respondents an indulgence and
opportunity to rectify their arrear status,
the respondents’
position has deteriorated.
11.
The respondents have raised a point
in
limine.
The
point relates to the form of the notice of motion, the complaint
being that the incorrect format has been used, i.e. that the
short
form has been used instead of the long form.
12. It is trite that
in applications relating to matters incidental to the main
proceedings, such applications may be brought using
the short form.
13.
The respondents submitted in their heads of argument that in view of
the judgment in
Absa
Bank Ltd v Xonti
2006(5)
SA 289 (C), it is no longer permissible to use the short notice of
motion format.
14. The facts of
that matter are crisp. The applicant in that matter obtained default
judgment against the respondent for payment
of an amount due to it
pursuant to a mortgage bond. The applicant then applied by way of an
urgent application for an order to
have the property declared
executable. The court held that because a substantive right is
sought, it is required that the longer
form of notice of motion be
used. In the summons issued in that matter, no order declaring the
relevant property executable was
sought. Subsequent to the granting
of default judgment, a simple notice was used seeking execution. It
did not call on the parties
to respond thereto. It is not clear from
the judgment in that matter whether the respondent had an opportunity
to place before
that court circumstances that would negate the
applicant’s right to execution of its judgment. It was further
held in that
matter that in that jurisdiction, there is a rule of
practice that applications for execution orders are to be brought on
the long
notice of motion.
15.
In the present matter, the summons contained a prayer for declaring
the property specially executable. The Registrar indeed
granted that
prayer. In view of the
Gudwana
judgment,
supra,
that
order is
ab initio
void.
Hence this application.
16.
This matter is clearly distinguishable from the Xonti judgment,
supra.
The
respondents were clearly advised that an order declaring the property
hypothecated under the bond would be sought. This application
was
served upon the respondents and they indeed filed opposing papers.
The respondents were granted ample opportunity to place
relevant
circumstance before court why the property should not be declared
specially executable.
17.
Seeking an order declaring property hypothecated under a mortgage
bond specially executable remains an incidental matter to
the main
relief sought. It is trite that absent any extraordinary
circumstances, the judgment creditor will normally be entitled
to
enforce his judgment by executing against the immovable property that
is bonded as security. See in this regard In
Firstrand
Bank Ltd v Folsher et al
2001(4)
SA 314 (GNP) at 331 paragraph [39],
18. The respondents
have not claimed prejudice due to the fact that the short form of
notice of motion was used. A mere technical
point was taken. The
respondents have indeed attempted to place circumstances supporting
their contention why the property should
not be declared specially
executable before court. There is no merit in this defence.
19. It is further
common cause between the parties that the respondents were advised of
the provisions of section 26(1) of the Constitution
and were further
advised that they were entitled to place information before the court
to support their contention that an for
execution will infringe upon
the right referred to in section 26(1) of the Constitution. This was
contained in paragraph 24 of
the Combined Summons.
20. The second
complaint by the respondents relates to the issue that the notice in
terms of
section 129
of the
National Credit Act, no 34 of 2005
, had
not contained a reference, should action be instituted for payment of
the arrear monthly instalments, to the fact that should
the action
succeed, an application for execution may follow.
21. In paragraph 9.2
of the founding affidavit the following is stated:
“
We
respectfully draw the Respondents/Defendants’ attention to Rule
46(1) of the Uniform Rules of Court in terms of which the
Respondents/Defendants are advised that should the aforesaid property
be a primary residence of the Respondents/Defendants, the
Respondents/Defendants are entitled to place relevant circumstances
before this Honourable Court as prescribed by the Uniform Rules
of
Court, as to why the Honourable Court should not order the execution
of the immovable property. ”
22. From the
foregoing it is clear that the respondents were aware of the fact
that they could place relevant circumstances before
this court as to
why the court should not order the execution of the immovable
property.
23. Counsel for
applicant submitted that the section 129 notifications were effected
on 22 May 2009, prior to the requirement that
such reference should
be included in section 129 notices and that in any event, paragraph
24 of the Combined Summons clearly contained
such notice. The
respondents were also invited in this application to do so. There is
no merit in this defence.
24.
It follows that the point
in
limine
is
to be dismissed.
25. The respondents
have raised a third technical complaint. This complaint relates as to
the whether the deponent to the founding
affidavit is duly
authorised. It is trite that a challenge to the authority of a
deponent to act in the manner it has should be
unequivocal and clear.
26. In my view there
is no unequivocal challenge to the authority of the deponent to the
founding affidavit and in any event the
relevant resolution had been
attached to the replying affidavit. There is no merit in this defence
and it is dismissed.
27.
Apart from the aforementioned technical issues, the respondents have
failed to raise a
bona
fide
defence,
or to place relevant circumstances before this court as to why this
court should not order the execution of the immovable
property
referred to above.
28. In paragraph 6
of the opposing affidavit, the second respondent sets out the
personal circumstances of the three respondents.
General statements
are made in that regard.
29. The first
respondent previously rented the property form the Town Council. Due
to the fact that first respondent was about to
lose the property as
she had insufficient funds to retain the property, the second
respondent purchased the property from the Town
Council and paid
cash. The property was transferred into the first respondent’s
name. Thereafter, second and third respondents
moved in with first
respondent. It would appear the immovable property was unencumbered.
30. The mortgage
bond was registered following a loan from the applicant to renovate
the property. Second respondent in terms of
an oral agreement between
the parties undertook to pay the instalments. However, during 2011
the second respondent fell in arrears,
due to the fact that he had
lost his employment and apparently has since then been unemployed. It
is common cause that the first
respondent is unable to contribute to
payment of the instalments. Third respondent no longer resides there.
31. It appears from
the papers that despite the payment of a substantial amount towards
the arrears at one point, the amount in
arrears continued to mount.
It is not readily gleaned from the papers that the judgment amount
has not been settled. Counsel for
the applicant submitted that the
judgment amount is still unsettled. The arrears that escalate merely
add to the first respondent’s
woes in that regard.
32.
Considering the circumstances enumerated in
Firstrand
Bank Ltd v Folsher, supra,
at
332 paragraph [41] it is clear that the respondents have not placed
any circumstance before this court to support their contention
that
the order for execution should not be granted.
33. There is no
merit in the submission of counsel for the respondents in the heads
of argument that the prejudice to be suffered
by the respondents far
outweighs that of the applicant. It would be inappropriate and
immoral to expect the applicant to merely
standby and not enforce its
right in and to the security that it has in the form of the immovable
property.
34. In this regard,
it is clear from the facts referred to by the respondents that none
of them is or would in the near future be
in a position to settle the
amounts already due and escalating. There is further no indication
that the applicant’s judgment
order could be settled in some
other reasonable manner.
35. It will be
recalled that the first respondent stood to lose the property earlier
had it not been for the knight in shining armour
in the person of the
second respondent. However, that armour has now tarnished.
36. From the
foregoing, the respondents have failed to show any exceptional
circumstance to negate the applicant’s right to
enforce its
judgment by executing against the immovable property that is bonded
by security.
37. It follows that
the applicant must succeed.
38. Counsel
submitted that the applicant seeks an order as to costs on the scale
as between attorney and client. Counsel further
submitted that the
basis for such an order is premised in the loan agreement
39. Accordingly I
grant the following order:
(a) It is declared
that ERF 5288 EERSTERUST EXTENSION 6 TOWNSHIP, REGISTRATION DIVISION
J.R., PROVINCE GAUTENG, MEASURING 315 SQUARE
METRES, HELD BY DEED OF
TRANSFER NO. T74564/2007, to be specially executable;
(b) The Registrar of
the above Honourable Court is hereby authorised to issue a Warrant of
Attachment in respect of the property;
(c) The costs of
this application to be taxed by the Taxing Master upon the scale of
attorney and client.
C
J VAN
DER
WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION
On behalf of
Applicant: W J Roos
Instructed by:
Velile Tinto & Associates Inc.
On behalf of
Respondents: No appearance