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[2015] ZAGPPHC 226
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Labuschagne v Absa Bank Ltd (12349/2012) [2015] ZAGPPHC 226 (24 April 2015)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No: 12349/2012
Date: 24 April 2015
In the matter
between:
On 24 April 2015
before the Honourable Holland-Muter AJ:
ANTONETTE
LABUSCHAGNE
................................................................................
Applicant
/ Defendant
and
ABSA BANK LTD
…....................................................................................................
Respondent
/ Plaintiff
JUDGEMENT
1
.
The applicant
brought an application during March 2014 before Court for an order in
the following terms:
1.1 That the
execution of the court order dated 12 November 2012 (“court
orders”), in terms of which the settlement
agreement dated 12
November 2012 (“the settlement agreement”) was made an
order of court, be suspended pending an application
for the setting
aside of the court order;
1.2 That the order
granted in terms of paragraph 1 supra will serve as an interim order
pending the finalization of the Applicant
/ Defendant’s
application for setting aside the court order;
1.3 That the
Respondent (Plaintiff) is ordered to pay the costs of this
application, in the event such application is opposed.
2
.
This application was
opposed by the Defendant.
3.
The parties
exchanged answering and replying affidavits. Some confusion between
the parties caused the applicant to file the heads
of argument late
but no harm resulted in this.
4.
The
matter was initially brought as an application for sequestration of
the now applicant by the now respondent and enrolled for
12 November
2012. It was, as a result of this sequestration application, that the
settlement agreement was signed
by
both
parties, the agreement then made an order of court on 12 November
2012. It must be added that the applicant consented to the
agreement
being made an order of court.
5.
The relevance of
this court order on the current application is inter alia that the
applicant failed to comply with par 1.4 of the
agreement. This clause
provided for the applicant to pay the final agreed installment on 1
July 2013, failing to comply authorizing
the respondent to proceed
with the sequestration application.
6.
The balance of the
agreement made provision that the respondent, as a result of the
applicant’s failure the comply with the
afore mentioned
payments, may proceed to sell the said properties mentioned in the
agreement. In terms of the agreement the applicant
gave the
respondent an irrevocable authority to sell the properties at prices
and on conditions which are in the sole discretion
of the
respondents.
7.
After the applicant
failed to meet the 1 July 2013 deadline, she alleges that she tried
to negotiate with the defendant on this
aspect. The defendant denies
that the initiative came from the applicant. This is however not
relevant as to whom took the initiative,
it is clear that certain
correspondence followed between the parties resulting in no success.
8
.
A round table
conference was scheduled for somewhere in November 2013, but the
applicant withdrew from the proposed conference on
very short notice.
The applicant then indicated that she intended bringing an
application to have the order of 12 November 2012
rescinded.
9.
In the letter
informing the respondent of the intended application, certain
defences were raised by the applicant, being (i) duress
on her by
employees of the respondent influencing her to sign the above
mentioned agreement. It is alleged that this influence
effectively
paralyzed her to convince and persuade her to agree to the
settlement.
10.
The
second defence now raised is the alleged unconstitutionality of
certain clauses in the settlement agreement. The main objection
to
the respective clauses is that the irrevocable authority given to the
respondent to sell the properties at prices and on conditions
solely
in the discretion of the respondent amounts to
parate
executie.
11
.
The
point is taken that such a clause of
parate
executie
is
invalid if the property is encumbered by mortgage. Reference was made
to
ISCOR HOUSING
UTILITY CO CHIEF REGISTRAR OF DEEDS
1971 (1) SA 613
(T).
12.
The
next point taken was not initially canvassed in the heads of argument
by both parties, but in the interest of justice the court
allowed
deliberation thereof. This point refers to the effect of an
application to rescind a judgment. See
Rule
49(11)
of
the Uniform rules.
13.
On
behalf of the respondent it was submitted that the institution of a
rescission application does not suspend the order sought
to be
rescinded. Reference was made to
UNITED
REFLECTIVE CONVERTERS (Pty) Ltd v. LEVINE 1988(4) SA 460 (W).
In
this case it was held that the provisions of
Rule
49(11)
have
no force and effect insofar it relate to rescission applications,
save insofar as it relates to the noting of an appeal.
14.
The
applicant, with reference to
KHOZA
and OTHERS v BODY CORPORATE OF ELLA COURT 2014(2) SA 112 (GSJ)
and
PENIEL DEVELOPMENT
(Pty) Ltd v PIETERSEN AND OTHERS 2014(2) SA 503(GJ),
contended
that the provisions of
Rule
49(11)
do
suspend the operation of an order upon application for rescission of
that order.
15.
The
distinction between procedural issues and substantive rules of law,
was discussed in detail in the
KHOSA
and
PENIEL
matters
supra
and
need not be repeated here.
16.
After
careful examination of the two opposing views as stated in the
UNITED
REFLECTIVE CONVERTERS
case
on the one hand, and that of in the
KHOZA
and
PENIEL
cases
to the contrary, I am convinced that the approach followed in the
latter is indeed the correct approach.
17.
Whilst the court has
the power to rescind orders, but that pending rescission orders do
not suspend the execution of the said order,
the result could be
that, pending the hearing of such rescission application at a later
stage, the result may become pure academic
should the execution of
such order in the meantime result in for instance immovable property
be auctioned before the rescission
application is heard. It may then
result in that, should the rescission application be successful, but
the immovable property be
sold by then, the result will be of no
effect.
18.
Irreparable
harm may already be done if the existing order is executed pending
the hearing of the rescission application. Such harm
/ prejudice will
be averted if the approach in the
KHOZA
and
PENIEL
cases
is followed.
19.
I
am convinced that the latter approach is the correct approach and
that the reasoning in the
KHOZA
and
PENIEL
cases
supra
is
correct.
Rule
49(11)
is
in my view clearly applicable on rescission applications as on leave
to appeal applications.
20
.
The
merits of such rescission application is not to be adjudicated at
this stage, but only on the hearing thereof. I have been furnished
with copy of the application for the rescission of the court order
granted on 12 November 2012. The application, although more
than two
years after the granting of the initial order, is set down on the
unopposed role in this court for
18
May
2015.
At
that hearing or subsequent later opposed hearing, the merits will be
considered.
21
.
In
view of the above finding, the relief in prayer two (2) of the
application for an interim interdict is no longer necessary. The
provisions of
Rule
49(11)
in
any event suspends the execution of the said order.
22.
In the
circumstances, I make the following order:
1.
The order made on 12 November 2012 by Mr Justice Phatudi in declared
to be suspended by virtue of the provisions of
Rule
49(11)
of
the Uniform Rules pending the finalization of the rescission
application instituted by the applicant on 28 March 2015, the Notice
of Motion under
case
number 12349/2012
dated
28 March 2015; and
2. The costs of this
application is to be costs in the main application.
HOLLAND-MUTER AJ
24 April 2015
Applicants
Attorneys:
DIEMONT INC
Advocate: S Maritz
Respondents
Attorney:
TIM DU TOIT
ATTORNEYS
Advocate: MP vd
Merwe SC