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[2015] ZAGPPHC 306
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Sheriff of the High Court Johannesburg South v Kalala, In Re: Standard Bank of South Africa Ltd v Nsele and Others (22740/2013) [2015] ZAGPPHC 306 (13 May 2015)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
22740/2013
DATE OF HEARING:
11 MAY 2015
DATE: 13 MAY 2015
REPORTABLE
OF INTEREST TO
OTHER JUDGES
In the matter
between:
THE SHERIFF OF
THE HIGH COURT
JOHANNESBURG
SOUTH
...............................................................................................................
Applicant
and
MOTSOANA
YVONNE
KALALA
................................................................................................
Respondent
Passport Number:
[...]
In Re:
THE
STANDARD BANK OF SOUTH AFRICA
LTD
......................................................................
Plaintiff
CELOKUHLE
PHUNELELE FORTUNATE
NSELE
..........................................................
First
Defendant
Identity Number
[...]
XOLILE
PORTIA
NSELE
...................................................................................................
Second
Defendant
Identity Number
[...]
JOYCE THANDI
MHONI
.......................................................................................................
Third
Defendant
Identity Number
[...]
JOYCE THANDI
MHONI
....................................................................................................
Fourth
Defendant
Identity Number
600102 0596 08 8
In her capacity as
Executrix
in
the estate late
JAMES
CHIKOSA MHONI
JUDGMENT
AVVAKOUMIDES,
AJ
INTRODUCTION
AND SUMMARY OF FACTS
1. The plaintiff
obtained judgment against the defendants pursuant to non-payment of
the monthly payments in respect of a mortgage
bond resulting in the
sale in execution of the property in issue, namely Portion 1 of Erf
162 Regents Park Estate Township, Registration
Division I. R.,
Province of Gauteng, also known as 1 Eleazer Street Regents Park.
2. The sale in
execution took place on 18 February 2014 and was sold by the
applicant to the respondent. In terms of the conditions
of sale the
property would be sold to the highest bidder and the purchaser would
pay a 10% deposit upon signature of the conditions
of sale.
3. The respondent
duly paid the 10% deposit but failed to furnish guarantees for the
balance of the purchase price within 21 days
of the date of sale. The
conditions of sale do not contain a notice period within which the
applicant would call upon the respondent
to remedy a breach. The
applicant however, upon the respondent’s breach, despatched a
letter of demand to the respondent,
calling upon the respondent to
provide the guarantees within 7 days. This letter of demand was not
reacted to and the applicant
despatched a further letter in which the
respondent was advised that the sale would be terminated. Both
letters were sent by registered
post. The applicant was thus obliged
to proceed in terms of the provisions of rule 46 (11).
4. The practice
directive of this division provides that if an application in terms
of rule 46 (11) is unopposed it will serve before
a judge in
chambers. If the application is opposed it is heard in open court.
The applicant brought the application on affidavit,
as required and
the respondent opposed the application alleging therein, in limine,
that the application was initiated by the plaintiff
and not by the
applicant (whatever that may mean). Furthermore the respondent stated
that she denies being in breach of the conditions
of sale but did not
expand hereon at all. There is no indication is the answering
affidavit that guarantees were delivered and
the affidavit does not
set out anything whatsoever to indicate that the relief sought ought
not to be granted.
5. Moreover the
answering affidavit was signed by the respondent but not commissioned
at all. The answering affidavit must therefore
be disregarded for
this reason alone. However, because of the apparent importance of the
matter to the respondent and because the
application involves
immovable residential property I have deemed it fit to ensure that
the applicant is well within its rights
to be granted the relief
sought, despite the absence of the answering affidavit and the
non-appearance for the respondent.
6. Before the
hearing I requested my registrar to telephone the respondent’s
attorneys, as appears on the papers filed, to
remind them of the date
and time of the application. The telephone number listed on the
papers filed is not that of the respondent’s
attorneys. The
application proceeded thus in open court.
7. Counsel for the
applicant could not point out a clause in the conditions of sale
entitling the applicant to retain the deposit
paid by the respondent,
ex facie the document. He submitted though that the conditions of
sale provide for payment by the respondent
of all losses incurred by
the applicant upon a breach by the respondent. He referred me to the
case of The Sheriff v Mashaba
1948 (4) SA 870
(T) wherein it was held
that the sheriff could not utilise the deposit to offset the wasted
costs and losses. This case followed
the case of Sheriff v Gillingham
1907 TS 190.
I was also referred to the case of The Sheriff v
Jaithoon
1955 (3) SA 416
(N) wherein Holmes J (as he then was) held
the complete opposite that, insofar it pertained to the practice in
then Natal, the
deposit could be allocated towards the payment of
costs.
8. In Sheriff of the
High Court, Johannesburg South v Sithole and Three Similar Cases
2013
(3) SA 168
(GSJ), Spilg J held, with reference to the provisions of
rule 46 (11) (b) that the sub section does not sanction forfeiture on
breach. On the contrary the sub section expressly circumscribes the
extent of liability pursuant to default and stipulates how it
is to
be determined. Spilg J further held that the sub section was
complemented by rule 46 (8) (a) (i) which requires that the
conditions of sale in execution of immovable property comply
substantially with Form 21 of the First Schedule. Clause 6 of Form
21
provides for payment of 10% deposit on the date of sale, while clause
8, which is the operative provision dealing with the consequences
of
cancellation due to a breach by the purchaser, makes no reference to
forfeiture (nor does any other clause), but provides:
“
8
If the purchaser fails to carry out any of his obligations under the
conditions of sale, the sale may be cancelled by a judge
summarily on
the report of the sheriff after the due notice to the purchaser, and
the property may again be put up for sale; and
the purchaser shall be
responsible for any loss sustained by reason of his default, which
loss may. On the application of any aggrieved
creditor whose name
appears on the sheriffs distribution account, be recovered from him
under judgment of the judge pronounced
summarily on a written report
of the sheriff, after such purchaser shall have received notice in
writing that such report will
be laid before the judge for such
purpose; and if he is already in possession of the property, the
sheriff may, on seven days’
notice, apply to a judge for an
order ejecting him or any person claiming to hold under him
therefrom”
9. Consequently a
forfeiture provision is invalid. Neither rule 46 (11) (b) nor the
standard conditions of sale contained in Form
21 permit forfeiture of
the deposit. They however do not expressly provide for the retention
of the deposit, pending the court’s
determination, under rule
46 (11) (b), of the losses for which the defaulting purchaser should
be liable. Nonetheless the rule
contemplates an expedited
determination of losses which are readily ascertainable and therefore
liquidated.
10. This brings me
to the question of costs of this application. The respondent chose to
oppose the application and filed a notice
of intention to oppose and
an affidavit purporting to be an answering affidavit, notwithstanding
the absence of commissioning thereof.
Under the circumstances the
applicant could not have brought the application before a judge in
chambers and was obliged to bring
the application in open court. In
my view and for this reason, the respondent ought to pay the costs of
this application.
11. In the
circumstances I make the following order:
11.1 The sale in
execution on 18 February 2014, of the immovable property described as
Portion 1 of Erf 162 Regents Park Estate
Township, Registration
Division I. R., Province of Gauteng, measuring 273 (two hundred and
seventy three) square metres and held
under Deed of Transfer No
T3932/2009, subject to the conditions therein contained and also
known as 1 Eleazer Street Regents Park
(“the property”),
is hereby cancelled.
11.2 The property
may again be put up for sale in execution in accordance with clause
10 of the conditions of sale.
11.3 The deposit
shall be retained by the sheriff in trust until the quantification of
loss sustained and judgment have been granted
in respect thereof in
terms of rule 46 (11) (b).
11.4 The written
report required under rule 46 (11) (b) shall be laid before the
presiding judge (Avvakoumides AJ) or any other
judge in chambers by
no later than 30 June 2015, failing which an affidavit explaining why
such written report could not be so
laid and indicating by when such
report can be laid before the presiding judge.
11.5 The respondent
is ordered to pay the costs of this application.
AVVAKOUMIDES, AJ
JUDGE OF THE HIGH
COURT
Representation for
the Applicant:
Counsel Adv: C. G.
V. O. Sevenster
Instructed by Vezi
De Beer Inc.
Representation for
Respondent:
Counsel No
appearance
Instructed by: No
appearance