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[2015] ZAGPPHC 261
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Chiura and Another v Absa Bank Limited and Others (20740/13,7580/07,1730/13) [2015] ZAGPPHC 261 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE NO: 20740/13
7580/07
1730/13
DATE: 8 MAY 2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
SHEPARD
TENDAYI
CHIURA
........................................................................................
1
st
APPLICANT
ESTER
CHIURA
.................................................................................................................
2
nd
APPLICANT
AND
ABSA
BANK
LTD
............................................................................................................
1
st
RESPONDENT
NEDBANK
LTD
..............................................................................................................
2
nd
RESPONDENT
SHLOMO
MISHAN
.......................................................................................................
3
rd
RESPONDENT
MIRIAM
MISHAN
.........................................................................................................
4
TH
RESPONDENT
SHERIFF
HALFWAY
HOUSE
....................................................................................
5
TH
RESPONDENT
REGISTRAR
OF DEEDS,
PRETORIA
.......................................................................
6
th
RESPONDENT
JOYSPRING
TRADE & INVESTMENT 11
(PTY)
LTD
.......................................................................................................................
7
th
RESPONDENT
RICHARD
NGWENYA
& PARTNERS
........................................................................
8
th
RESPONDENT
WEBBER
WENTZEL
ATTORNEYS
............................................................................
9
th
RESPONDENT
JUDGEMENT
LEDWABA,
DEPUTY JUDGE PRESIDENT
[1] On 5 May 2014
the applicants filed an application for leave to appeal and
condonation of the late filing thereof mainly against
the judgment of
Van Der Byl AJ. The application was opposed.
[2] On 17 February
2014 the applicants filed an amended application for leave to appeal
and the condonation for the late filing
of the application for leave
to appeal against the order for Van Der Byl AJ in terms of the court
order of Kollapen J dated 11
December 2014.
[3] The court file
further shows that in 2013 the applicants further brought various
applications which were heard before Tlhapi
J, Mphahlele J and Voster
AJ which were unsuccessful and punitive costs orders were granted
against the applicants.
[4] Voster AJ was
not available to heard this application and all the parties had no
objection that I could hear this application.
[5] At the first
hearing of this application the first applicant appeared in person
and since the second applicant, his wife, was
not in court, the
application had to be postponed so that she could also appear in
court. When the matter was postponed I specifically
informed the
first applicant that due to the complexities and the deficiencies of
their application I recommended that they should
be legally
represented. Both applicants when the matter was before me on the
second occasion, stated that they would personally
argue the
application.
[6] For the proper
understanding of the order I am going to make, I will briefly record
the background information before this application
landed before me.
[6.1] On 17 October
2005, the applicants purchased Erf 2106 Dainfern Extension 19
Township (“the property”) and financed
the full purchase
price thereof by way of a loan in the amount of R2 350 000,00 from
the second respondent (“Nedbank”).
The property was
transferred to the applicants on 15 December 20015 and, as security
for the loan, a mortgage bond was registered
in favour of Nedbank
simultaneously with transfer of the property into the name of the
applicants.
[6.2] The applicants
fell into arrears with their mortgage payments resulting in Nedbank
taking legal action and on the 29
th
March 2007, Nedbank
obtained default judgment in the sum of R2 401 460.05 while the
property was also declared executable.
[6.3] The property
was sold in execution during or about July 2009 to the third and
fourth respondents for the sum of R1 400 000.00
and it was
transferred to them in September 2009. The applicants vacated the
property in November 2009.
[6.4] The third and
fourth respondents thereafter soid the property to the seventh
respondent in May 2010 for an amount of R3 325
000.00. The first
respondent financed the purchase of the property and a mortgage bond
was registered over the property in favour
of the first respondent to
secure the indebtedness of the seventh respondent.
[6.5] In July 2011,
the applicants launched proceedings out of this court in which they
sought an order rescinding the judgment
obtained by Nedbank, an order
setting aside the order declaring the property specially executable,
and an order setting aside the
sale in execution, as well as an order
for the retransfer of the property into their names.
[6.6] The matte came
before TUCHTEN J who on the 24
th
of January 2013 made the
following order:
[1]
The claims for the rescission of the default judgment granted on 29
March 2007 and to set aside the order made declaring the
property at
2106 Benedict Drive Dainfern Valley (“the property")
specially executable are dismissed
.
[2] The sale in
execution of the property held on 28 July 2009 is set aside.
[3]
It is declared that the purported transfers of the property out of
the names of the applicants and further are invalid
.
[4] The fifth
respondent, the Registrar of Deeds, is hereby directed forthwith to
cancel, as invalid:
[4.1] all deeds
of transfer in relation to the property executed after 28 July 2009,
including deeds of transfer of the property
to or from the second and
third respondents (Shliomo and Miriam Misham) and the sixth
respondent (Joyspring Trade and investment
11 (Pty) Ltd);
[4.2] all
mortgage bond registered over the property after 28 July 2009
[5] The Registrar
of Deeds is hereby directed forthwith to reinstate, as if never
cancelled, mortgage bond no. B191008705 registered
over the property
in favour of the first respondent (Nedbank Limited).
[6]
All fees of office, if any, due to the Registrar of Deeds for acting
in accordance with this order must be paid
,
on demand, by
Nedbank Limited.
[7] Nedbank
Limited may not take further steps to execute against the property
unless and until it has been authorised to do so
in accordance with
this order must be paid, on demand, by Nedbank Limited.
[8] Nedbank
Limited may not take further steps to execute against the property
unless and until it has been authorised to do so
in accordance with
the provisions of the proviso to Rule 46(1)(a)(ii).
[9] Any party to
this application may approach Tuchten, J or, failing him, any other
judge of this Division, in chambers, for directions
or a ruling on
any matter arising from this order.
[10] The order of
costs made against the applicants on 1 October 2012 is set aside. All
other costs order made in this application
will stand. Save as
provided in this paragraph, each party will bear his, her or its own
costs in relation to the application.
[6.7] In setting
aside the sale in execution TUCHTEN J took the stance that the notice
of sale was invalid in that the description
of the property in the
notice of sale differed materially from the actual description of the
property and that this was misleading.
He expressed the view in his
judgment that the purpose of description was not merely to identify
the property but also to inform
the public what was being sold in
order to attract bidders and thus obtain the highest possible price
on auction.
[7] Van Der Byl AJ
rescinded the judgment and order of Tuchten J as it was clear that
the ASBA Bank Limited was not cited as a party
in the proceedings
before Tuchten J. Rescission was granted on the basis that the
judgment was erroneously granted.
[8] Importantly it
is clear that Tuchten J did not rescind Nedbank’s default
judgment and the order declaring the property
especially executable.
[9] The applicants’
application for leave to appeal and condonation to appeal does not
set out explanation or satisfactory
explanation for its being out of
time. However, since the applicants acted in person I cannot expect
them to prepare a properly
compliant application and I think it will
not be in the interest of justice to merely dismiss the application
because the application
for condonation is non-compliant.
[10] In the present
application I should carefully consider whether there are reasonable
prospects that another court could overturn
the judgment and order of
Van Der Byl AJ.
[11]
The default judgment of Nedbank has not been rescinded and it still
stands as a valid judgment. Kollapen J in paragraph 22
of his
judgment correctly, in my view, said
“
It
may well be that the relief the applicants seek by way of leave is
unlikely to bring them the relief they desire. In my view
and for
what it is worth, their remedy may lie elsewhere and they would be
well-advised to reconsider the trajectory of their current
litigation
stance and to obtain legal advice in that regard and they would be
well advised to reconsider the trajectory of their
current litigation
stance and to obtain legal advice in that regard’.
[12] After careful
consideration of the history of the matter and the relieves sought by
the applicants, I think there are no reasonable
prospects that
another court might find that Absa was not entitled to the rescission
of Tuchten J’s order or that the historical
background of this
matter justifies the granting of the relief sought by the applicants.
[13] In the
circumstances, I make the following order
•
The
applicants’ application is dismissed with costs
•
The
applicants to pay the costs, jointly and severally.
A P LEDWABA
DEPUTY JUDGE
PRESIDENT
HIGH COURT OF
SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION PRETORIA
HEARD ON: 18
FEBRUARY 2015
APPLICANTS APPREARED
IN PERSON
COUNSEL
FOR THE 1
st
,
7
th
,
8
th
AND 9
th
RESPONDENTS: ADV. G F PORTEOUS
INSTRUCTED BY:
NORTON ROSE FULBRIGHT TTORNEYS
COUNSEL
FOR 2
nd
RESPONDENT
ADV J DANIES (assisted by ADV. CVENTER)
INSTRUCTED BY:
LOUWNDES DUVMINI ATTORNEYS