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[2014] ZAGPPHC 444
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T.R.T v Transnet Limited (67730/2009) [2014] ZAGPPHC 444 (17 April 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number:
67730/2009
Date: 17 April 2014
Not reportable
Not of interest to
other judges
In the matter
between:
T[...] R[...]
T[...]
.............................................................................................................................
APPLICANT
(Executor of the
Deceased Estate of J[...] S[...] T[...])
and
TRANSNET
LIMITED
...........................................................................................................
RESPONDENT
JUDGMENT
HUGHES J
1. In this
application the applicant seeks the following order:
1.1 Rescinding the
default judgment granted against the applicant under case number
2009/67730 which, declared the immovable property
below executable:
ERF [...] E[...]
TOWNSHIP REGISTRATION DIVISION I.R PROVINCE OF GAUTENG IN EXTENT OF
500 SQUARE METRES HELD BY DEED OF TRANSFER
T[...]
1.2 That the
applicant be granted leave to defend the matter;
1.3 Costs of this
application be costs in the cause except in the event that this
application be opposed, in which event the applicant
request costs of
the application,
2. Briefly, this
matter commences from the premise that the applicant is the executrix
of the deceased estate of J[...] S[...] T[...]
(“J[...]”).
J[...] was employed by the respondent before his death. During his
employment with the respondent on 3
February 2000 he entered into a
loan agreement with the respondent. This loan was secured by a
mortgage bond over ERF [...] E[...]
TOWNSHIP (“the property”).
3.
J[...] died on 18 November 2002 with the applicant being appointed as
executor on 14 February 2003. On 25 January 2010 the respondent
served a summons dated 30 October 2009 on the deceased’s
domiciilium
citandi et excutandi.
It
was recorded on the return that the address that service was effected
upon was [..] H[...] Street, E[...]. In addition the return
also
indicated that it was served on the owner Ms Flora Msasa. It is noted
that the property ERF [...] E[...] TOWNSHIP, physical
address, is
recorded as [...] H[...] Street E[...]. It is also interesting to
note that when the summons was drawn up and served
the deceased had
been dead for seven years.
4. On 15 July 2010
the respondent obtained default judgment for the amount of R34 462.42
and on 8 June 2011 the property was sold
by auction. Though the
property was sold in execution on 8 June 2011, it was only
transferred to the current owners on 12 December
2011. Sometime in
September the current owner approached those that were resident on
the property to vacate the property. This
is the first time that the
applicant became aware that the property had been attached and sold.
The current owners then launched
eviction proceedings as the
occupiers did not vacate the property as requested. Thus by September
the current owners were aware
that there was an issue with regards to
the ownership of the property and knowingly they proceeded with the
eviction proceedings.
5. During September
2011 the applicant conducted investigations and the necessary
enquiries. This is how the applicant became aware
of the default
judgment taken and the safe in execution of the property.
6. Even though the
applicant launched a counter application on 2 April 2012 seeking the
stay of the eviction, the current owners
obtained an eviction order
on an unopposed basis on 2 August 2012. This order was duly rescinded
by consent on 10 October 2012.
With the stay of eviction in place, on
7 February 2013 the applicant was granted leave to institute this
current application.
7. According to the
applicant, about early 2003, pursuant to the deceased death she
personally attended on the respondent and was
informed by the
respondent that no amounts were payable in terms of the bond as the
life policy that the deceased had covering
the bond would settle all
outstanding amounts owing on the bond.
8.
The applicant’s main contention amongst others was that the
court which granted the default judgment would have never done
so if
it had been appraised of all the relevant facts. I was referred to
the headnote, which I think is apt to quote at this stage,
of
Gundwana v Steko
Development and Others
2011 (3) SA 608
(CC) at 608C-E:
“
Sale
of homes in execution after judgment on money debt: constitutionality
of
current
practice
Since
it is established that execution may only follow upon a judgment in a
court of law, and that judicial oversight is required
where execution
is sought against the homes of indigent debtors after the judgment on
a money debt, the High Court rules and practice
that allow registrars
to grant orders declaring such property specially executable are,
bearing in mind the constitutionally entrenched
right to housing,
unconstitutional.
Bond
holders who wish to execute on a mortgage bond must first approach a
court of law for it to make a proper determination as
to whether the
saie in execution of a person’s home is justifiable in the
circumstances of the
case.”(Paragraphs
[41], [49]-[50], [53] at 623E-F, 625D-G and 626C-E.) [My emphasis]
9. Further pertinent
submissions made by the applicant was the non-service of the summons
as well as the section 129 letter or notification
in terms of the
National Credit Act 34 of 2005
on the correct address of the
applicant. In addition and to me most importantly the respondent had
failed to comply with
section 30
of the
Administration of Estates Act
66 of 1965
. There were a host of other submissions which I do not
propose to go into.
10.
The respondent raised
a
point in limine that
this
application for rescission was out of time by eighteen months; taking
into account that September 2011 was the period when
the applicant
became aware of the default judgment. The respondent further
submitted that the applicants delay in acting upon the
knowledge that
the property was to be sold and allowing the transfer of the property
to go through, created a situation where the
applicant had now lost
her right to have the sale in execution set aside.
11. In dealing with
the aspect of the delay of eighteen months, the applicant has
provided an explanation, that as soon as she became
aware of the
property having been sold by the eviction request, the emphasis was
to avoid being evicted from the property at all
costs. After this was
averted, the stay of the eviction, she then proceeded to obtain leave
to institute this rescission application.
12. The explanation
provided is a reasonable explanation and in the circumstances permits
me to grant the applicants condonation
when weighing up the delay as
against the merits and prospects of success of the rescission
application. Condonation is duly granted.
13.
In examining the second aspect raised as a
point
in limine,
I
take into consideration that the applicant became aware that the
property was sold, on its own version on or about September 2011.
The
transfer of the property only took place on 12 December 2011. I am of
the view that when the transfer took place the current
owners were
well aware that there was a real risk to their rights as purchasers.
Even so they still went ahead with the transfer
of the property in
December 2011, having become aware in September 2011, that their
rights may be affected by the existing occupiers
and applicant.
14.
In my opinion the merits of the current rescission application and
the second
point
in limine
raised
are interwoven, thus I propose to deal with both simultaneously.
15.
The present case deals with a situation where the current bona fide
owner purchased the property on auction. The said auction
arose from
a default judgment obtained by the respondent seven years after the
deceased’s death. The summons was served on
the wrong
domiliuim
address,
as is evident from paragraph (3) above. On an inspection of the
summons, the document cites the deceased as the respondent,
when in
fact the respondent cited was already deceased. Default judgment was
granted on 15 July 2010 against the deceased who had
died on 18
November 2002. When default judgment was granted the executor had
already been appointed as far back as on 13 February
2003 to the
deceased’s estate.
16.
The applicant had submitted that the judgment was granted in
contravention of
section 30
of the
Administration of Estates Act as
the executor of estate had not been cited but rather the deceased.
Further, the summons was not even served on the correct
domililium
address.
The applicant submits that the respondent cannot contend that it was
not aware that the deceased was no longer alive as
the insurance on
the life of the deceased paid out on the debt due on the bond and in
doing so paid off the balance of what was
due. This balance is what
the respondent alleges its claim as against the deceased is based on.
17.
Section 30
of the Administration of the Estates Act was dealt with in
Knox
NO
v Mofokeng and
others
2013 (4) SA 46
(GSJ) at page 59:
In
De Faria v SheriffHigh Court, Witbank
2005 (3) SA 372
(T) it was held
that non-compliance with the provisions of s30 resulted in a nullity,
as the wording contained in s30 was clearly
couched in peremptory and
negative language. The court took into account that a criminal
sanction
was
imposed in s102
(1) (h) in the event of the provisions of s30 not being adhered to,
and that recognition of a sale in contravention
of the section would
give legal sanction to the very situation which the legislature
sought to prevent. The court found that the
purpose of the provision
was to ensure that every creditor and heir received what they were
entitled to, without preference, if
sales in contravention of s30
were not visited with nullity, those intentions would be frustrated,
the Master would have no control
over the liquidation and
distribution process, and statutory procedures would be circumvented.
Accordingly, the court held that
the sale in execution in
contravention of s30 of the Act was invalid. In Wright v Westelike
Provinsie Kelders Bpk
2001 (4)
SA
1165
(C) it was
held that the provisions of the Administration of Estate Act
displaced the common-law right to proceed against a debtor
The
provision ofs30 gave expression to public policy, in that execution
of a judgment against a deceased was required to be completed
by
means of a claim against the executor appointed under the Act.
Accordingly, the judgment obtained against the deceased was not
executable against any property which formed part of the estate,
unless the Master or the court otherwise directed. ”
18. The scenario set
out above is the exact position that the applicant finds itself in in
this instance. As such I am of the opinion
that, that which is set
out above is duly applicable in this matter before me. The default
judgment could have never taken place,
further it is clear that there
could not have been a sale in execution without an order by either
the Master or the court. The
sale in execution of property in this
matter which was under the control of the applicant, who was not
cited as a party, is thus
a nullity and not valid.
19.
If the sale of the property was a nullity and not in accordance with
the applicable procedure, then it stands to reason that
the sheriff
had no right to sell the said property to the current bona fide
owner. In terms of the "golden rule” of
the law of
property, the sheriff did not have the right to sell the property
because ‘one cannot transfer more rights to
another than what
one has’. See
Knox
NO v Mofokeng and others (supra) at page 56.
20. In conclusion as
the sale was a nullity and the transfer could never have taken place,
the applicant has demonstrated that she
has valid grounds for the
default judgment to be rescinded and the applicant is therefore
entitled to the order sought.
21. Accordingly I
make the following order;
21.1 The default
judgment granted against the applicant under case number 2009/67730
which, declared the immovable property below
executable: ERF [...]
E[...] TOWNSHIP REGISTRATION DIVISION I.R PROVINCE OF GAUTENG IN
EXTENT OF 500SQUARE METRES HELD BY DEED
OF TRANSFER T[...] is duly
rescinded
21.2 The applicant
is granted leave to defend the matter;
21.3 Costs of this
application follow the result and are awarded to the applicant.
W. Hughes Judge of
the High Court
Delivered on: 17
April 2014
Heard on: 17 March
2014
Attorney for the
Plaintiff:
MARIUS VILJOEN
ATTORNEYS.
9 Black Cap Street
Wierda Glen
Centurion
Pretoria
Tel: 012 653 6441
Ref: MV1541/10
c/o BADENHORST
ATTORNEYS
643 Avril Street
Eloffsdal
Pretoria
Attorney for the
Defendants:
KNOWLES HUSAIN
LINDSAY INC
c/op FRIEDLAND HART
SOLOMON & NICOLSON.
Suite 301, Block 4
Monument Office Park
79 Steenbok Avenue
Monument Park
Pretoria
Tel: 012 424 0200
Ref: TRUDIE VAN
STRAATEN/nm/313183