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
>>
2015
>>
[2015] ZAGPPHC 290
|
|
Masilo v Somandass and Another (57928/14) [2015] ZAGPPHC 290 (7 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 57928/14
DATE:
7 APRIL 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
CECILIA
MOSIAMIEMANG
MASILO
..................................................................................
APPLICANT
and
RAJENDRA
SOMANDASS
...............................................................................................
1
st
RESPONDENT
SHERRIFF
OF THE HIGH COURT
TSWANE SOUTH
EAST
.................................................................................................
2
nd
RESPONDENT
JUDGMENT
KUBUSHI, J
[1] The applicant
has approached this court on an urgent basis for an order to suspend
an eviction order granted against her in
favour of the first
respondent, for a period of 14 days. The applicant resides with her
family in the property in which she is
to be evicted (the property).
It is her primary residence. The order sought by the applicant is to
give her an opportunity to file
two applications for the rescission
of the eviction order in this instance, and a judgment obtained by
ABSA Banh (ABSA) against
her, foreclosing on a mortgage loan and
mortgage bond (the ABSA judgment). The said Mortgage loan and bond
are a cause from which
the first respondent derived his alleged
rights to evict the applicant from the property.
[2] The applicant
was the original owner of the property. She had entered into an
agreement of loan with ABSA and registered a mortgage
bond over the
property in favour of ABSA. When she could no longer service the
mortgage bond, ABSA under case number 67181/2011,
issued summons
against her for the recovery of the amount due and owing. Pursuant to
the summons, the applicant signed a confession
to judgment in terms
of uniform rule 31 (1), wherein she undertook to pay off the arrears
on the aforementioned loan.
[3] In terms of the
confession to judgment, the applicant agreed that ABSA’s
attorneys may apply for judgment against her
without further notice
in the event of her failing to comply with the repayment arrangement.
The applicant also confessed to:
“
1.
...
2
.
...
3. An Order
declaring the mortgaged property executable for the said sums. The
Defendant's attention is however drawn to section
26 (1) of the
Constitution of the Republic of South Africa, which affords to
everyone the right to have access to adequate housing.
Should the
Defendant claim that the Order for execution will infringe that
right, it is incumbent on the Defendant to place information
supporting that claim before the Court.
4. An order in terms
whereof the Registrar is directed to issue a Warrant of Execution
against Immovable Property mentioned in prayer
(1) above, in terms of
Rule 46 of the Uniform Rules of Court.
5. ...”
[4] The applicant
failed to comply with the terms of the confession to judgment and
without any further notice to her, ABSA obtained
judgment against the
applicant for the whole amount due and owing; and, on the strength of
the judgment proceeded to obtain an
order authorising the issuance of
a writ of execution in respect of the property.
[5] The first
respondent bought the property on auction and as of now the property
is registered in his name. The first respondent
applied in terms of
the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, 19 of 1998 (PIE), and was granted
an order to evict the
applicant from the property. It is this order which prompted the
applicant to approach the court for the
relief she seeks.
[6] The first
respondent is opposing the application and attaching the application
on both urgency and the merits.
[7] On urgency, the
first respondent’s contention is that the urgency is
self-created since as early as 11 February 2015 the
applicant knew of
the eviction order and should have applied for rescission then.
According to the first respondent’s counsel,
the applicant had
19 clear court days within which she could have approached the court
for relief.
[8] The applicant,
on the other hand, states that she could not have approached the
court earlier because from the time she became
aware that judgment
had been granted against her in the ABSA case, she consulted with
various legal representatives but got no
assistance. At one time she
even filed an application to rescind the judgment but was advised to
withdraw the application due to
the confession to judgment.
Eventually she consulted with her current legal representative who
was prepared to research the legal
position and to assist her. By the
time the current legal representative was able to assist her, the
respondent had already obtained
an eviction order against her. I am,
thus, prepared to accept the applicant’s explanation as
reasonable and to treat this
matter as one of urgency.
[9] I am, however,
not convinced that the applicant has made out a case for the relief
she seeks on the merits.
[10] In determining
whether or not to grant the applicant the relief she seeks, I first
have to determine whether there are prospects
of success in the
intended rescission applications.
[11]
The judgment granted against the applicant is in terms of uniform
rule 31 (1)
(c).
Uniform
rule 31 (1) states that -
(a)
Save
in actions for relief in terms of the Divorce Act, 1979 (Act 70 of
1979), or nullity of marriage, a defendant may at any time
confess in
whole or in part the claim contained in the summons.
(b)
Such
confession shall be signed by the defendant personally and his
signature shall either be witnessed by an attorney acting for
him or
her, not being the attorney acting for the plaintiff, or be verified
by affidavit.
(c)
Such
confession shall then be furnished to the plaintiff, whereupon the
plaintiff may apply in writing through the registrar to
a judge for
judgment according to such confession.
[12] The applicant’s
ground for wanting to rescind the ABSA judgment and the eviction
order against her is that the confession
to judgment infringes upon
her Constitutional right to access to adequate housing in terms of s
26 and her right to property in
terms of s 25 of the Constitution.
[13]
The applicant contends that the fact that ABSA included a clause in
the confession to judgment for her to agree that no further
notice is
necessary to her, and entitled ABSA to obtain judgment in her absence
which also includes the authorisation of the issue
of the warrant of
attachment, was an error. Such error in the agreement of confession
to judgment, according to the applicant,
constitutes a
iustus
error
and
renders the confession to judgment defective. As a result of the
iustus error the
is
entitled to avoid the agreement (confession to judgment) and resile
therefrom since her consent was improperly obtained, so it
was
argued. In arguing this point, the applicant’s counsel relied
on the judgment in MEC for Economic Affairs, Environment
and Tourism
v Kruisenga and Another
2008 (6) SA 264
(CK). According to counsel,
that judgment, provides the necessary legal remedy to attack the
confession to judgment.
[14] I, however, do
not agree with the argument by the applicant’s counsel. I made
it clear during the hearing of this application
that there should be
separation of issues between the judgment and the order authorising
the issue of a warrant of execution. Once
such separation is made, it
becomes evident that the judgment was lawfully granted and in that
respect there would be no prospects
that it will be rescinded. On the
face of the confession to judgment and the evidence presented before
me, there is no indication
that there was an error committed when the
confession was entered into.
[15] Firstly, it is
trite that property cannot be made the subject of an order of
attachment in pursuance of a writ of execution,
unless judgment has
been taken against a defendant. Before an immovable property can be
sold in execution, there are two processes
which a plaintiff has to
follow after the service of the summons on the defendant. The first
process is for the plaintiff to obtain
judgment against the defendant
and the second would be to obtain an order authorising the issuance
of a warrant of execution.
[16] When applying
for judgment, ABSA was not obligated to inform the applicant of its
intention to do so. It was also not incumbent
upon the applicant, at
that stage of the proceedings, to place information before the court
supporting the claim that her s 26
(1) Constitutional rights will be
infringed. Uniform rule 31 (1) does not provide for that. Over and
above that, it is common cause
that the applicant signed a confession
to judgment wherein she consented to judgment being obtained against
her without any further
notice to her. In the circumstances ABSA was
entitled to obtain judgment against the applicant without any further
notice to the
applicant. The judgment, as such, has been lawfully
granted.
[17] The
Kruisenga-judgment, on which the applicant seeks to rely, does not
assist the applicant at all. Unlike in that case, the
judgment, in
this instance, was lawfully obtained.
[18]
Secondly, it has been held that a defendant against whom default
judgment has been granted in terms of uniform rule 31 (1),
does not
have the right to apply for the rescission of such judgment, where
after default judgment has been granted, he or she
realises that he
or she has a defence.
1
The applicant, in this instance, having confessed to judgment cannot,
therefore, apply for the rescission of the judgment granted
against
her on the strength of the confession.
[19]
From the reading of the confession it appears that the applicant
should, before the court could authorise the writ of execution
against the property, have been afforded an opportunity to place
information supporting a claim that such an order would infringe
her
right to adequate housing. It is common cause that she was not
afforded such an opportunity. This, however, cannot assist the
applicant to have the judgment rescinded. As it is, the property has
already been sold in execution and is registered in the name
of the
respondent. The law as it stands is that immovable property validly
sold in execution at judicial sales cannot, as a general
rule, after
transfer be vindicated from a
bona
fide
purchaser.
2
[20] The result is
that the eviction order can also not be rescinded since it has also
been validly obtained.
[21] The main gripe
of the applicant, as I understand it, is the failure to be provided
an opportunity to present the information
in support of her claim
that the writ of execution would infringe her rights to adequate
housing and the right to property; and
for the court to decide
whether it was just and equitable to evict the applicant from the
property. As I have already indicated,
this information would not
necessarily absolve her from her obligation to ABSA. It is so that
where there are no other proportionate
means to obtain payment of the
judgment debt, execution may not be avoided.
[22]
In terms of PIE, the court has discretion to decide whether it is
just and equitable that an unlawful occupier be evicted from
the
property. Note should, however, be taken that the effect of PIE is
not to expropriate private property. What PIE does is to
delay or
suspend the exercise of a landowner’s full proprietary rights
until a determination has been made whether it is
just and equitable
to evict the unlawful occupier and under what conditions.
3
[23] The
circumstances the applicant wanted to present to the court are that -
(a)
The
applicant occupies the premises with 4 (four) daughters: two of them
are minors; one is 18 years old and disabled; the eldest
is 22 years
old and attending University - studying from home;
(b)
The
property is their primary residence;
(c)
The
applicant is a single mother and the daughters depend on her.
[24] Against this
background sight should not be lost that the evidence shows that the
applicant has been living in the property
for over two years without
paying anything towards its upkeep. The evidence is that she refused
to sign a lease agreement with
the respondent and that the respondent
is paying municipality charges for the property.
[25] My view is that
it is just and equitable under the circumstances that the respondent
be given possession of the property but
the applicant must be given a
reasonable time within which to vacate the house. In the light of the
applicant having previously
been given 30 days within which to vacate
the property; and the fact that she has children one being disabled,
in my opinion, it
is just that the applicant be given a further 45
days from the date of this court to vacate the property
[26] In the premises
I make the following order:
1. The application
is dismissed with costs.
2. The applicant is
ordered to vacate the property 266 Johan Rissik Street, Waterkloof,
Pretoria with property description Erf 305
Water kloof Ridge
Township, JR Gauteng, within forty-five (45) days from the date of
this order.
E. M. KUBUSH1
JUDGE OP THE HIGH
COURT
APPEARANCES
HEARD
ON THE:
31
MARCH 2015
DATE
OP JUDGMENT:
07
APRIL 2015
APPLICANT'S
COUNSEL:
ADV.
L VAN EEDEN
APPLICANT’S
ATTORNEY:
DU
PREEZ ATTORN EVS
RESPONDENT'S
COUNSEL:
ADV.
QS VAN DER HEEVER
RESPONDENT'S
ATTORNEY:
LIESL
VAN RENSBURC ATTORNEVS
1
See
Morkel
v
ABSA
Bank
Bpk
en
‘n Ander 1996 (1)
SA
899
(C)
at
904H - 905B/C
2
See
Knox
NO
v
Mofoheng
and Others
2013
(4)
SA
46
(CSJ)
para
[16].
3
See
City of Johannesburg Metropolitan Municipality u Blue Moonlight
Properties 39 (Pty) Ltd
2012 (2) SA 104
(CC) at 118E - H