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[2013] ZAGPPHC 194
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Jardine v First National Bank a Division of Firstrand Bank Ltd and Others (51141/2012) [2013] ZAGPPHC 194 (12 July 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE
NUMBER: 51141/2012
DATE:12/07/2013
In
the matter between:
OSMAN
JARDINE
.....................................................................................
APPLICANT
And
FIRST
NATIONAL BANK A DIVISION OF
…............................
1st
RESPONDENT
FIRSTRAND
BANK LIMITED
THE
SHERIFF FOR THE DISTRICT OF
…..............................
2nd
RESPONDENT
JOHANNESBURG
WEST
THE
REGISTRAR OF
DEEDS
..................................................
3rd
RESPONDENT
FEROZ
KHAN
…..........................................................................
4th
RESPONDENT
WILLIAM
BUTI
MOTAUNG
…......................................................
5
th
RESPONDENT
MAVUNDLA
J
[1]
The applicant brought an application to set aside the sale in
execution, of Erf 1228, Albertskroon Township, Registration Division
I.Q., Province of Gauteng, measuring 441 square meters and the
remaining extent of Erf 1228, Albertskroon Township, Registration
Division I.Q., Province of Gauteng measuring 441 square meters on 27
October 2011, together with ancillary relief.
[2]
The application served before this Court on the 15 March 2013 and was
dismissed with costs on the 19 April 2013. The applicant
now seeks
leave to appeal to the Supreme Court of Appeal alternatively the Full
Bench of this Division against the whole of judgment
and order
including the order in respect of costs.
[3]
It was submitted on behalf of the applicant that there are reasonable
prospects that another court might find, on the facts,
differently
from this Court’s findings in that;
3.1
the warrant of execution was lawfully issued on the 22 September
2010 and properly served and the property attached on the
7 October
2010;
3.2
the version of the first respondent that the notice of sale in
execution of the 27 October 2011 was served on the 26 September
2011
is more probable than that of the applicant;
3.3
there was no evidence which could support an application for
rescission in the event the applicant’s relief is granted;
3.4
rejecting the applicant’s contention that his rights to housing
in terms of the Constitution were impugned;
3.5
that the applicant did not bring this application bona fide.
[4]
The applicant in its notice for leave to appeal further contended
that:
4.1
the first respondent as a creditor chose to enforce its rights not by
way of summons but notice of motion. The notice of motion,
unlike
summons does not contain the requisite notice to the applicant of his
rights in terms of s26 and while the applicant’s
rights and
warning in this regard
were
contained in the founding affidavit, there is no evidence that the
sheriff explained the applicant’s rights in terms
of s26 of the
Constitution;
4.1
it was improbable, especially in the absence of any evidence to the
contrary that the second respondent (“the sheriff”)
explained anything from the founding affidavit to the first
respondent’s application and especially not in relation to the
applicant’s rights to housing in terms of s26 of the
Constitution.
4.2
the fact that the applicant continued to pay his bond instalment and
to pay up his arrears believing that same was good enough
in the face
of the notice of motion;
4.3
the fact that the applicant continued to pay and later acted in the
way he did on the morning of the sale in execution when
he heard
about the sale, suggest the overwhelming probability that had the
applicant actually understood the exigency of the process,
or became
aware of the warrant of execution and sale in execution earlier, he
would have approached his attorney or an attorney
at that time
already.
[5]
It was submitted on behalf of the applicant that the Court made
factual findings that the warrant of execution was served upon
the
applicant. This finding was premised on prima facie evidence, which
was the return of service. It was submitted that because
the
applicant had contended that the warrant of execution was not served
upon him, the onus shifted upon the first respondent to
tender real
evidence to prove that, indeed the sheriff did serve upon the
applicant. It was further submitted that because the
matter relates
to the applicant’s right to housing as protected in s26 of the
Constitution, it was not enough to rely on
the prima facie evidence
and that the onus rested upon the applicant.
[6]
It was further submitted on behalf of the applicant that the arrears
which unleashed the default judgment, were only an amount
of R11,
907. 77. The bonded amount was R350 000. 00, as at the issuing of the
application. The judgment was in the amount of R361
906. 77. The
judgment was obtained some 4 months later on the 19 August 2010; the
outstanding amount was something less than R11
907. 77. The first
respondent did not file a supplementary affidavit to explain what the
actual amount in
arrears
was when the sale in execution was effected in September 2011;
[7]
It was further submitted that having regard to the fact that the sale
in execution affected the applicant’s rights to
housing, in
terms of s26 of the Constitution, with the property having been
attached in October 2010 prior to the change in Rule
46(3). Even and
even if attachment of sale set for 10 March 2010, then the change to
Rule 46(3), it was imperative upon the first
respondent to comply
with the prescriptive flowing from decisions of the Supreme Court of
Appeal, such as Japhta v Schoeman and
Others; Van Rooyen v Scholtz
and Others
1
;
Standard Bank of South of South Africa Ltd v Saunderson
2
;
Nedbank Ltd v Mortinson
3
[8]
On behalf of the first respondent it was submitted that the court
decided the matter on the facts placed before it by way of
affidavits
and that there is no reasonable prospect that another court might
come to a different conclusion. It was further submitted
that the
applicant in its founding affidavit when it launched the application
for setting aside the sale in execution, did not
raise any impugning
of his rights in terms of s26 of the Constitution, but confined
himself to the question of the applicability
of Rule 46(3) as
amended. It was further submitted that the issue of the applicant’s
rights having been impugned was submitted
over the bar and not
supported by any facts contained in the affidavit. It was submitted
that the court should not entertain this
ground advanced and that the
application for leave to appeal should be dismissed with costs.
[9]
It is trite that leave to appeal is a matter of the discretion of the
Court. It will be granted where there is a reasonable
prospect of
success on appeal and another court arriving at a different decision
than that of the court against whose decision
leave to appeal is
sought. However, that is not the only consideration, also the
circumstances of the case and the conduct of the
parties to the
litigation.
[10]
I am of the view that in the exercise of my discretion, this
application for leave to appeal should be dismissed with costs.
In
arriving at this conclusion I am influenced by the following:
10.1
The whole chain of events leading to this action was the notice of
motion under case number 33537/10 for the payment of the
amount of
default judgment obtained against the applicant which was in the
amount of R361 906. 77 and an order declaring the property
especially
executable, served on the applicant on 15 June 2010, which is common
cause. Default judgment was granted by Botha J
on the 19 August 2010.
To date hereof there is no application for rescission of this order.
10.2.
On the 27 October 2011 the applicant became aware that his house was
to be auctioned. On the 14 February 2012 the applicant
learnt for the
first time of the result that his property has been sold.
10.3
There is no explanation what steps were taken by the applicant
between:
(i)
The 15 June 2010 and 19 August 2010;
(ii)
The 27 October 2011 and 14 February 2012.
10.4
It is common cause that the relevant immovable property was purchased
from the auction by the fourth respondent who in turn
sold it to the
fifth respondent. The latter has as much rights in terms of s26 as
the applicant does.
10.5
The unexplained dilatory conduct of the applicant mentioned in 10.3
supra, in the face of an action directed against his precious
commodity namely housing, was rather nonchalant, to an extent, in my
view, that it ought not to be condoned, otherwise would be
to the
disadvantage of the fifth respondent; vide Beira v Raphaeiy-Weiner
and Others;
4
Van Wyk v Unitas Hospital 90pen Demcratic Advice Centre as Amicus
Curiae)
5
.
10.6
Consideration of fairness to all the stake holders, in my view,
dictates that the litigation should reach speedy finality and
this
can only be achieved by not permitting this protracted litigation
beyond this point, otherwise would prejudice the fifth respondent
s
26 rights; vi de Napier v Tsaperas
6
10.7
Where there are equal rights between parties, the court, in my view,
should consider the conduct of the respective parties.
In casu I am
of the view that the applicant was remiss, in not having brought an
application for rescission at the earliest opportunity;
otherwise the
immovable property would not have been sold and eventually
transferred to the fifth respondent
7
;
10.8
Assuming that the appeal was to be successful, the prospects of
success in bringing an application for condonation and rescission
of
the default judgment are in my view, non-existent. The inescapable
conclusion is, in my view, that the singular purpose of the
application for leave to appeal, is mala fide; vide Kapotes v
Grobbelaar
8
[11]
I have further taken into account the fact that on the applicant’s
own admission, the first respondent’s founding
affidavit
initiating the proceedings resulting in the default judgment,
referred to 26(1) of the Constitution. In the matter of
Standard Bank
of South of South Africa Ltd v Saunderson
9
the Supreme Court of Appeal held that:
“
Bearing
in mind that in most cases where an order for execution is sought the
defendant has no defence to the claim for payment,
and is thus
unlikely to seek or obtain legal advice, it seems to us desirable
that the defaulting debtor should be informed, in
the process of
initiating action, that s26 (1) may affect the bond holder’s
claim to execution. Should it be held that the
negative obligation of
s26(1) binds even the bond-holder, the debtor would have the right to
invoke circumstances that may persuade
the court to grant extenuation
in the execution of the order (albeit that the bond-holder’s
summons need not attempt to justify
in advance a possible
constitutional infringement)...The development should be prospective
only, and it is as well to make clear
that the existing summons are
not invalid for want of reference to s26(1).”
[7]
On the applicant’s own admission, the affidavit accompanying
the notice of motion of the first respondent made reference
to s26(1)
of the Constitution. He admitted service. He chose to go into slumber
instead of defending the matter. It is safe to
assume that he read
and understood what the matter was all about. I am of the view that
another court will find that the prescripts
of Saunderson case and
the likes have been met.
[8]
I am further of the view that it was not necessary for the first
respondent to have filed a supplementary affidavit, as was
contended
on behalf of the applicant, to show that s26(1) contained in the
affidavit were explained to the applicant.
[9]
I am further of the view that it is not necessary that I should
traverse the rest of the submissions made on behalf of the applicant.
I am of the view that in the circumstances of this case, the mere
fact that the applicant may have an arguable case on appeal,
that
does not mean that leave to appeal should therefore be granted; vide
Shaik and Others v Pillay and Others
10
.
[15]
As I have already stated that I am of the view that the application
should be dismissed . It stands to reason that the applicant
must be
mulcted with costs. In casu, the costs would then include the costs
of the fifth respondent, who was on the day when the
application was
argued, represented by counsel. The fifth respondent was at all times
present at court when the application resulting
to the judgment leave
to appeal is sought, was heard. The court advised him, as a lay
person, that he should seek legal assistance.
In my view, he had a
legitimate interest in this matter, which warranted that he should be
legally represented. His counsel aligned
his submission with the
submissions made on behalf of the first respondent, and further made
submissions why the application should
be dismissed.
[16]
In the result the application for leave to appeal is dismissed with
costs.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 03 JULY 2013
DATE
OF JUDGMENT : 12 JULY 2013
APPLICANT'S
ATT : GERHARD CULHANE ATTORNEYS
APPLICANT
S ADV: ADV. R. E.G. WILLIS
1st
RESPONDENTS'ATT : STRAUSS DALY INC
1
st RESPONDENTS' ADV : ADV. A. P. ELLIS
5st
RESPONDENTS' ATT : ATTORNEY V MABE
5
st RESPONDENTS' ADV : ATTORNEY V MABE
1
[2004] ZACC 25
;
2005
(2) SA 140
(CC) at 161-163 I-163B.
2
2006
(2) SA 264
(SCA) at 277C-F, handed down in 2006;
3
[2005] ZAGPHC 85
;
2005
(6) SA 462
AT 468b-469I handed down in 2005.
4
[1997] ZASCA 59
;
1997
(4) SA 332
(SCA) at 337C-F.
5
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at 480A-B
where The Court held that: “After an inordinate delay a
litigant is entitled to assume that the losing party has accepted
the finality of the order and does not intend to
pursue
the matter any further. To grant condonation after such an
inordinate delay and in the absence of a reasonable explanation,
would undermine the principle of finality and cannot be in the
interest of justice.”
6
1995
(2) SA 665
(AD) at 671A-D;
Minister of Land Affairs and
Agriculture v D & F Welvell Trust
2008 (2) SA 184
(SCA) at 199A-D.
7
Vide
Napier
v
Tsaperas
(supra).
8
1927
AD 389
at 390-391.
9
Supra
at 276G-277A.
10
2008
(3) SA 59
(NPD) at 62D-E.