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[2015] ZAFSHC 157
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Absa Bank Limited v Bantjes and Another (3748/2013) [2015] ZAFSHC 157 (13 August 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 3748/2013
In
the matter between:
ABSA
BANK
LIMITED
Plaintiff
[Registration
number: 1986/004794/06]
and
LOUIS
FERDINAND
BANTJES
First
Defendant
(IDENTITY
NUMBER: …………….)
ANNA-MARIE
BANTJES
Second
Defendant
(IDENTITY NUMBER: …………….)
HEARD
ON:
13
AUGUST 2015
JUDGMENT
BY:
C.
REINDERS, AJ
DELIVERED
ON:
20
AUGUST 2015
[1]
This is an application to have the immovable property of the
defendants, Mr and Mrs Bantjes, declared executable pursuant to
judgment granted against the defendants on 14 April 2015 in the
amount of R 2 199 428.83 together with interest at the
rate
of 14% per annum, capitalized monthly from 1
st
May 2013 to date of payment.
[2]
The elderly couple were sued as sureties for LF Bantjes Civil CC (the
closed corporation) who entered into a loan with the plaintiff
(Absa
Bank). The closed corporation was liquidated and did not fulfil its
obligations towards Absa Bank. As security for the said
loan, a
covering mortgage bond in favour of Absa Bank was registered over the
immovable property.
[3]
In the amended particulars of claim Absa Bank pray for an order
permitting execution of the judgment to be levied against the
defendants’ immovable property. Such an order is ordinarily
sought and granted in open court simultaneously with, and ancillary
to, the order granting judgment sounding in money. (
Absa
Bank v Petersen
2013(1) SA 481 (WCC)). However, when the matter was heard on an
opposed basis on 14 April 2015, the prayers permitting execution
of
the defendants’ immovable property stood over in order for the
plaintiff to bring a substantive application in terms of
Rule 46 of
the High Court Rules.
[4]
The defendants in their opposing affidavit indicated that the
immovable property (the residence at [.......], Bloemfontein)
is
their primary residence, and I am therefore obliged to do judicial
oversight as is envisaged in Rule 46(1)(a)(ii) of the High
Court
Rules and
Gundwana
v Steko Development and Others
2011 (3) SA 608
(CC).
[5]
Apart from the fact that the property is their primary place of
residence, the defendants also chose to place the following
facts
before court: they do not have any alternative accommodation
and have been residing in the residence since 1989; they
run “their”
business from the property and derive their only income from the said
business; they are of an advanced
age (70 and 68 years respectively);
it would be traumatic for them to relocate; they would not be able to
buy another property
and rental is too expensive; they would have to
rent an office to conduct their business in order to earn an income;
the value
of properties in Bloemfontein is “not good” and
selling the property on a forced sale would “probably”
lead to a weak price, leaving a big outstanding balance; they would
be unable to retain their dignity. An offer is also made to
effect
monthly payments to Absa Bank, without any further detail thereof.
[6]
I will now deal with each of these facts in turn.
[7]
That the mortgaged property is the Defendants’ primary home, is
not in itself a reason to deny the mortgagee’s contractual
right to realise its security. As was stated by Binns-Ward J in
Absa
Bank v Petersen
,
supra
at par 37:
“
Indeed,
by giving the property in security the defendant voluntarily derogate
from the extent of his full dominium over the property
in favour of
the bank. He did so for his own benefit and upon an undertaking in
favour of the bank that, if he defaulted in his
payment obligations
to the bank, the full amount owed by him would become immediately due
and payable, and the property given as
a security could be sold to
realise the funds to settle the debt.”
[8]
It can be assumed that the defendants are not indigent. As is evident
from the papers Mr Bantjes is a civil engineer, and according
to Mrs
Bantjes she and her husband run their business from the residence.
The said business also provides their only source of
income. However,
no disclosure is made of the nature or extent of the business, nor is
the income derived from the business disclosed.
I would have expected
these crucial facts to be placed before court, substantiated by proof
in the likes of bank statements and
business contracts.
[9]
The lack of information regarding the defendants’ income also
places a question mark on the averment by Mrs Bantjes that
they
cannot afford to rent a property as accommodation, and furthermore to
rent offices to continue conduct of their business.
It was not
disclosed by the defendants which portion of their residence is
utilised for business purposes. In all probabilities,
only a study or
one bedroom would suffice for purposes of conducting their business.
Even a two bedroomed town house would suffice
to afford the
defendants housing as well as an office to conduct their business
from.
[10]
Not only is Mr Bantjes clearly not an illiterate person, but the
defendants were legally represented, at the very least when
this
application was argued before me. In the absence of the
information as indicated above, I have no other inference to
draw but
that the defendants deliberately failed to disclose the said
information to create the impression that they are destitute.
[11]
Defendants’ indebtedness to Absa Bank is not disputed by them.
In considering the payment history, the outstanding balance
amounted
to R 2 951 464,81 as on 15 May 2015. It is common cause
that no payments were made to Absa Bank since May 2013,
and even
before that many debit orders were unpaid. As already mentioned
above, although an offer is made by defendants in
their opposing
papers to effect monthly payments to Absa Bank, no detail is given,
and in view of the absence of proof of their
income, this offer
cannot be taken seriously. If they were indeed serious, I would have
expected them to have started regular payments
of what they aver they
can afford in order to show their
bona
fides
.
[12]
Furthermore, it appears that when the matter was before court for
trial during October 2014, defendants abandoned their opposition
to
the action and instead moved for a postponement to be afforded the
opportunity to sell the residence to their children, who
would then
in turn have obtained a loan to settle Absa Bank’s claim in
full. Ten months down the line the property has not
been sold to
their children or any other purchaser for that matter. This
indulgence by the court was not even mentioned by defendants,
nor is
any mention made of attempts to engage the help of estate agents to
effect selling of the residence. I would have
expected such
information to be placed before me in their opposing affidavit or at
least at the hearing, but in the absence thereof
I have no other
inference to draw but that the defendants would not be able to pay
their indebtedness to Absa Bank.
[13]
It was alleged by defendants that properties in Bloemfontein has
devaluated. No proof of such a tendency was furnished. To
the
contrary, Absa Bank indicated that the immovable property is located
in a prime spot in Bloemfontein, close to a well- known
school and in
an area where businesses are being conducted. A valuation of the
immovable property in the amount of R 1 800 000.00
was
annexed to the application. Mr Sander for defendants pressed hard
upon me to accept that this valuation was indicative of the
truth in
respondents’ contention that they would still be left with a
big outstanding amount indebted to Absa Bank after
a forced sale. Mr
Heymans on behalf of Absa Bank indicated that this apparent
disproportionality was to be blamed on the defendants
themselves, who
for a period of more than two years since summons was issued, did not
make any attempts to sell the property but
rather utilised delaying
tactics. He argued that Absa Bank cannot afford to lose thirty
thousand rand monthly in interest, let
alone the considerable amount
that it already stands to lose when selling the property.
[14]
I am in agreement with Mr Heymans. The plaintiff as a financial
institution has a legal right and obligation towards clients
whose
money is being utilised to fund mortgage bonds, to minimise its
losses. As Froneman J articulated in
Gundwana
supra
at 626 par (54):
“
It
must be accepted that execution in itself is not an odious thing. It
is part and parcel of normal economic life.”
[15]
Personally I have sympathy with Mr and Mrs Bantjes. That relocating
would be traumatic to them is understandable, especially
given their
mature age and the lengthy stay that they have enjoyed at the
residence, including their involvement in their church.
The elderly
in our society should be respected and accommodated, and their
dignity should also be preserved as far as possible.
However, the
defendants cannot expect to occupy a property and utilise it as a
business indefinitely without paying anything for
this privilege.
Although I have considered all the evidence placed before me, this is
not an application for eviction. On the evidence
before me I cannot
see how the defendants will be able to settle the debt. There is no
evidence of any movables or a realistic
available method of
repayment. The inevitable cannot be delayed indefinitely.
[16]
It was confirmed by Mokgoro J in
Jaftha
v Schoeman and Others; Van Rooyen v Stoltz and Others
2005(2) SA 140 (CC) at 162 F, that a sale in execution should
ordinarily be permitted where there has not been an abuse of
court
procedure. It was not argued, nor can it be concluded that there was
an abuse of court procedure
in
casu
.
To the contrary, given the lengthy history of this matter, it is
quite clear that Absa Bank has bent over backwards and endured
all
the opposition and even postponements on request of the defendants.
[17]
Taking all the above relevant factors into account, it leaves me to
conclude that the plaintiff is entitled to an order declaring
the
immovable property executable. It is trite that cost should follow
suit and I find no reason to deviate therefrom, save that
I am not
prepared to award cost on a scale of attorney and client.
[18]
I issue the following orders:
1.
The
immovable property known as :
ERF:
[…],
BLOEMFONTEIN (EXTENSION 46), DISTRICT BLOEMFONTEIN, FREE STATE
PROVINCE;
IN
EXTENT:
1317
(ONE TREE ONE SEVEN) SQUARE METES;
HELD
BY:
DEED
OF TRANSFER NUMBER T9125/1998;
SUBJECT
TO THE CONDITIONS THEREIN CONTAINED.
is
declared executable.
2.
Cost
of suit on a party and party scale.
_______________
C. REINDERS, AJ
On behalf of
applicant: Adv.
P.J. Heymans
Instructed by:
EG
Cooper Majiedt Incorporated
BLOEMFONTEIN
On behalf of
respondents: Adv. A. Sander
Instructed by:
Willie
Botha Inc
BLOEMFONTEIN