About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 518
|
|
Ramesti and Another v Absa Bank Ltd and Others (61276/2013) [2013] ZAGPPHC 518 (17 October 2013)
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
NOT
REPORTABLE
CASE
NO: 61276/2013
DATE:17/10/2013
In
the matter between:
MEDUPI
LUCAS
RAMETSI First
Applicant
ENILY
DIPUO
RAMETSI Second
Applicant
And
ABSA
BANK
LIMITED First
Respondent
GARRISON
LESIBANA
RAMETSI Second
Respondent
SALOME
RAMETSI Third
Respondent
PULANI
VINCENT
RAMETSI Fourth
Respondent
ACTING
SHERIFF
WONDERBOOM Fifth
Respondent
JUDGMENT
[1]
This matter came before me as one of urgency during the course of
this week and the applicants seek, inter alia, the following
relief:
“
2. Sale of
Property known as […….], Pretoria, Registration
Division JR, to all owners after same was repossession
from
Applicants is hereby set aside.
3. Costs of suit”
[2]
The facts are briefly, the following:
2.1 The first and second
applicants are […..]
2.2 The property in
question was originally purchased by the first applicant and that the
Erstwhile Trust Bank (now ABSA Bank the
first respondent) held a
mortgage bond over the property.
2.3 At the time he
alleges he was employed at Siemans as a labourer and he further
alleges that there was an express agreement between
Siemans and
himself that, in the event that he was retrenched or he resigned
before his bond was paid up, the outstanding balance
would be settled
by his Siemans Provident Fund.
2.4 In 1989 he was
retrenched and he alleges that he received no monies from his
provident fund and his understanding was that it
had settled the
outstanding bond. He was “called back to Siemans in 1991.
2.5 He also alleges that
he is in possession of a letter from ABSA Bank dated 22 October 2003
advising that his mortgage bond had
been paid in full and enclosing a
refund in the amount of R4 440.91.
2.6 He states that ABSA
Bank had the house sold in execution to one Molefe and he attaches a
Deeds Office search as proof thereof.
From this it would appear that
the house was sold in execution during 2005 (or so it would appear).
This is the only information
provided by the applicants - there is
absolutely no information given as to when judgment was granted
against them, when the house
was repossessed, when the sale in
execution was held, when they were forced to vacate the house etc.
2.7 Then the second,
third and fourth respondents decided to purchase the house “...since
we as a family needed accommodation.”
[1]
2.8 They then took out a
bond with the first respondent.
2.9 He states that
“we”
[2]
“attended court on 19 April 2013 and the matter was postponed
to 28 May 2013 when they were at court once again.
On both occasions they
“...did not have lawyers because they did not
According to paragraph 19
they are the applicants' children, however, the
description of these parties in paragraphs
7, 8 and 9 states that the
second respondent is the first applicant's sister; the third
respondent is married to the fourth respondent
and I assume, given
the surname, that the third respondent is the first applicant's
brother.
Have money... ” It
appears that it was on that date that the house was declared
executable by the court.
2.9 The house was sold in
execution on 20 September 2013.
2.10 The property will
“soon be transferred’ and he alleges that it will be
within 14 days.
2.11 They then found and
attorney who was prepared to assist them and it appears that an
application was brought on 19 September
2013 before Kruger AJ which
"...failed due to the cause of action then chosen and this new
application was drafted overnight...
”
[3]
It bears mentioning that the application that was brought on 19
September 2013 was not placed before me, nor was Annexure “R4”
attached to the papers. Annexure”R4” is the letter
referred to in paragraph 2.5 supra. In his affidavit the first
applicant alleges that when the house was repossessed originally, he
had misplaced all the documents and that Annexure “R4”
was only found during June 2013. No explanation is given as to why it
was not attached to the papers when they were originally
served. This
latter document was served by way of a notice on the first respondent
on Monday 7 October 2013, i.e. one day before
this matter is set down
for hearing, and absolutely no explanation is provided as to why it
is only now surfacing. A copy was provided
to me during the hearing
of this matter. Interestingly enough, in the affidavit, the first
applicant states that although the latter
is dated 22 October 2003,
he only received it in 2005.
[4]
The argument for the applicants runs along the following lines:
4.1 That it appears to be
common cause that the second, third and fourth respondents were
unable to pay the bond and that no issue
is taken with the sale of
execution on 19 September 2013 being a valid sale;
4.2 However, “...
the only reason why they bought the house and borrowed money from the
First Respondent was because we were
of the mistaken belief that
there was indeed money owing to the First Respondent when it
repossessed the house and sold it to Molefe...”
[3]
Par
13.6 ot the founding affidavit
4.3 That insofar as
Annexure “
R4
” was not attached to the founding
affidavit, the first respondent should have utilised the provisions
of Rule 6(12);
4.4 That inasmuch as the
content of “
R4
”, and its accompanying paragraphs
12.6 and 12.7 , were not specifically denied by the first respondent,
they are deemed to
be admitted;
4.5 That the first
respondent is estopped from denying the correctness of Annexure “
R4
”;
4.6 That the “...Right
to adequate housing is a constitutionally protected right in terms of
the constitution...”
[5]
The first respondent’s attorney of record has deposed to an
affidavit in which the following was stated:
5.1 That the application
was served on 20 September 2013 and an answering affidavit prepared;
5.2 On 2 October 2013,
the applicant’s attorney served a Supporting Affidavit on them,
without a Notice of Motion, annexures
or any Confirmatory Affidavits
but with a covering letter in which they were informed that the
affidavit served on 20 September
2013 did not include an allegation
to the effect that the property had already been sold and would soon
be registered at the Deeds
Office. Thus this letter informed the
first respondent that this omission was cured in the affidavit which
was attached to the
letter and that the first affidavit should be
“ignored”.
5.3 That the answering
affidavit had already been drafted which dealt with the averments in
the affidavit of 20 September 2013 and
that the manner in which the
applicants attorney had dealt with the issue was contrary to the
rules and accordingly a Notice in
terms of Rule 6(5)(d)(iii) was
delivered.
5.4 To compound matters,
on 7 October 2013, a day before the hearing, the applicants attorney
then served annexure “
R4
” - this was done under
cover of a filing notice and without any explanatory affidavit.
[6]
Counsel for first respondent also took the points of res judicata and
non joinder of Molefe, the second owner of the property
in
question. He furthermore raised the issue that the application that
served before Kruger AJ on 19 September 2013 was not placed
before
me.
[7]Before
I deal with the issues placed before me, I must record that the
manner in which this application has been brought leaves
much to be
desired. The applicants attorney has made little effort to comply
with the rules of court: the papers were not placed
timeously in my
file; the issue of the service of a new affidavit and the
“withdrawal” of the affidavit that was served
on 20
September 2013; the manner in which annexure “R4” was
delivered; the fact that the application that served before
Kruger AJ
was not before me are all issues that warrant consideration of an
order de bonis propriis. Indeed, the first respondent
seeks such an
order- I will deal with this issue when I deal with the issue of
costs later in this judgment.
[7]
RES JUDICATA
: This point was argued before me. Mr du
Preez on behalf of first respondent argues that the issues that
served before Kruger AJ,
and were dismissed, were exactly the same.
He argues that the affidavits are virtually identical with a small
addition at the end
to deal with the issue of the sale in execution
on 20 September 2013 and the relief sought in this Notice of Motion
is slightly
different but he argues that, on a proper construction,
the two applications will have the same result and that Kruger AJ
already
pronounced on the present issues when he dismissed the
applicant on 19 September 2013.
[8]
If one were to compare the two affidavits, it is quite clear that 95%
of the affidavits have remained the same. Ingeniously,
the second,
third and fourth applicants in the previous application are simply
now the second, third and fourth respondents in
the matter before me.
Unfortunately, in the affidavit, paragraphs 7, 8 and 9 and the last
sentence of paragraph 19 leave one somewhat
confused and it is
evident that this application is simply a “copy and paste”
of the previous application - little
thought has gone into framing
this application properly.
[9]
What is so is that the relief sought in the two applications is not
the same as per the Notice of Motion:
9.1 Before Kruger AJ the
relief sought was to stay the sale in execution of the immovable
property and other relief;
9.2 Before me, the relief
sought is:
“
Sale of Property
known as[........], Pretoria, Registration Diviosn JR, to all owners
after same was repossessed from Applicants
is hereby set aside. ”
[10] In
Bafokeng
Tribe v Impala Platinum Ltd
[4
]
,
Friedman JP stated the following:
“
From the a
foregoing analysis I find that the essentials of the exception res
judicata are threefold, namely that the previous judgment
was given
in an action or application by a competent court (1) between the same
parties, (2) based on the same cause of action
(ex eadem petendi
causa), (3) with respect to the same subject-matter, or thing (de
eadem re). Requirements (2) and (3) are not
immutable requirements of
res judicata. The subject-matter claimed in the two relevant actions
does not necessarily and in all
circumstances have to be the same.
However, where there is a
likelihood of a litigant being denied access to the courts in a
second action, and to prevent injustice,
it is necessary that the
said essentials of the threefold test be applied. Conversely, in
order to ensure overall fairness, (2)
or (3) above may be relaxed.
A court must have regard
to the object of the exceptio res judicata that it was introduced
with the endeavour of putting a limit
to needless litigation and in
order to prevent the recapitulation of the same thing in dispute in
diverse actions, with the concomitant
deleterious effect of
conflicting and contradictory decisions.
This principle must be
carefully delineated and demarcated in order to prevent hardship and
actual injustice to parties.
The doctrine of issue
estoppel has the following requirements: (a) where a court in a final
judgment on a cause has determined an
issue involved in the cause of
action in a certain way, (b) if the same issue is again involved, and
the right to reclaim depends
on that issue, the determination in (a)
may be advanced as an estoppels in a later action between the same
parties, even if the
later action is founded on a dissimilar cause of
action. Issue estoppels is a rule of res judicata but is
distinguished from the
Roman- Dutch Law exception in that in issue
estoppel the requirement that the same subject-matter or thing must
be claimed in the
subsequent action is not required. ”
[11]
I am of the view that, although the facts are virtually exactly the
same, the relief sought and argued was different: before
Kruger AJ
the issue was whether the sale in execution should be stayed. Before
me the issue is whether the previous transfers of
the immovable
property should be set aside. The relief sought and the legal
principles are therefore different and this point in
limine is
therefore dismissed.
[12]
NON-JOINDER:
The second point in limine is that Molefe,
who originally purchased the immovable property on a sale in
execution, has not been
joined. The argument is that he has an
interest in the outcome of this application as, if the court grants
the relief sought, there
will be certain consequences such as
restitution in integrum of the purchase price he paid and was paid in
respect of this property.
[13]
Ms Mbanjwa, on behalf of the applicants, argues that he has no
interest in this application as he will not be affected by the
relief
sought.
[14]
I disagree: by the very fact that the applicants wish to set aside
the sale of the house to the second, third and fourth respondents,
it
would mean that Molefe would have to refund the money he received for
the sale to them. There is no indication of how much that
was nor the
profit did he make from this sale vis-a-vis the price he paid on
auction when he purchased it. The applicants and second,
third and
fourth respondents are in possession of the relevant information but
have chosen not to share it with the court.
[15]
Also, interestingly enough, the person who purchased the property on
20 September 2013 is also not before me - surely it is
necessary for
him/her to know that his purchase may not necessarily be realised and
that, he too should have been joined?
[16]
I will return to these issues in due course.
[17]
SETTING ASIDE
OF ALL PREVIOUS TRANSFERS
Ms
Mbanjwa referred me to the matter of ABSA Bank Ltd v Morrison and
others
[5]
as authority for her proposition to set aside all previous sales. In
this matter, Spilg J held that the sale in execution of an
immovable
property by public auction may be set aside where the debtor had
settled what it owed to the creditor in full prior to
the date of the
sale, but the creditor in error had failed to instruct the sheriff to
cancel the sale.
[18]
The glaring differences between that reported case and this one are
the following:
17.1 In the present
matter the original sale and transfer seems to have taken place
somewhere around 2003/2005 - no proper facts
are placed before me and
so this is merely a “guesstimate” based on the facts at
hand. The property was transferred
to Molefe and then to the second,
third and fourth respondents and now the property have been sold
again and transfer to the purchaser
is imminent (when I am not told
other that it is “within 14 days”). This is a period of
some 10 years and 3 purchasers
later.
17.2 In the matter
before Spilg J the sale took place on 7 September 2011. Although
there is no date mentioned of when transfer
took place, it would
appear that the matter was heard during June 2012 and from the
argument presented, one would surmise that
transfer had already taken
place: thus a period of 6 months in that matter and one purchaser.
17.3 In the matter
before Spiig J it was common cause that the judgment debt had been
paid in full by the debtor prior to the sale
and that the creditor
had omitted to cancel the sale.
17.4 In the present
matter there is no such admission. Ms Mbanjwa argued that as the
first respondent had not specifically denied
the allegation in
paragraphs 12.6 and 12.7, it is deemed to be admitted. This is
disingenuous as the first respondent specifically
pleads as follows:
“
The deponent bears
no knowledge of the contents of these paragraphs and can therefore
neither admit nor deny these allegations.
The deponent also notes
that the letter referred to in par. 12.7 is not attached although
it’s alleged to be in the Applicant’s
possession. The
content of these paragraphs is therefore denied. ”
One must also bear in
mind that the relevant letter was only served on the first respondent
on 7 October 2013 without any explanation
and was handed up to me in
court. The first respondent has therefore been denied a proper
opportunity of considering and responding
to that letter and this
whilst the applicants have been in possession all the while.
17.5 She then argues
that the first respondent should have availed itself of the
provisions of Rule 35(12). This argument too seems
to lose sight of
the fact that this application was brought as one of urgency and the
provisions of Rule 35(12) would not have
afforded the first
respondent with sufficient time to respond to the application.
17.6 Why this letter
could not simply have been attached to the application, when the
applicants were quite clearly in possession
of it all the while is
not explained anywhere and this conduct is to be frowned upon. It
would smack of “stealing an advantage”
which is certainly
not to be encouraged.
[18]
It falls then to discuss the content of Annexure “
R4
”.
This reads as follows:
“
22/10/2003
Mr ML Rametsi
Stand...
Mamelodi East …
Dear Client
LOAN ACCOUNT NUMBER: …
We confirm that your
mortgage documents have been placed in Safe Custody and your bond
account reflects a nil balance.
Please cancel your
monthly payments to this account, as credit balances are not
permitted on bond accounts.
Your refund of 4 440, 91
is enclosed.
We trust that this meets
your approval and look forward to being of continued service to
you... ”
[19]
At first blush this document does seem rather damning, but the
question is: when was the applicants’ property repossessed
by
the first respondent? If the property was repossessed and sold in
execution earlier then it may well be that this letter is
simply
confirmation that the bond was paid off by the sale in execution
proceeds. As there is absolutely no information about this
at all in
the papers, I am left completely in the dark.
[20]
However, assuming that the applicants are correct and the property
was sold in execution in error, then the application is
so defective
that I cannot see how relief can legitimately be granted on the
paucity of evidence presently before me. At the very
least both
Molefe and the present purchaser must be given notice of this
application and afforded an opportunity to decide whether
they wish
to oppose or not.
[21]
In any event, I am of the view that given the particular set of
circumstances, to disturb the status quo is not in the interests
of
justice. There are other avenues open to the applicants to explore as
against Siemans and against the first respondent other
than
disturbing the status quo with regard to the property especially
after this long lapse of time.
[22]
The issue of costs is also relevant here. The usual order is that
costs should follow the result. However, I am mindful of
the
circumstances of the present applicants. They are not people of means
and they have sought the counsel of someone who is more
knowledgeable
than they and they have followed her advice. To order them to pay the
costs would, in my view, neither be just nor
equitable. The question
is whether, in light of the manner in which the present litigation
has been conducted, I should grant an
order de bonis propriis against
the applicants’ attorney, Ms Mbanjwa. In this regard I mention
that this order is sought
in Mr du Preez heads of argument which are
dated 7 October 2013.
[23]
It is my view that little thought has gone into the preparation of
this application. It has been drafted in a haphazard manner
with
little thought as to the essentials that will be necessary for a
court to properly adjudicate on the merits of the matter.
The fact
that the first respondent suddenly receives a proper copy of the
application 3 days before the hearing is, in it, severely
prejudicial
and the manner in which service took place is not acceptable conduct
of an officer of this court. This is compounded
by the fact that an
essential component of the applicants’ case (being Annexure
“
R4
”) is only given to the first respondent a day
before the matter is set down which deprives the first respondent of
a proper
opportunity to consider it. The argument presented to this
court in order to circumvent its proper disclosure is deserving of
this
court’s censure. Put together with the fact that I was not
given a copy of the papers that served before Kruger AJ, and that
service was affected neither on Molefe nor the most recent purchaser
of the immovable property, it is clear that an order of de
bonis
propriis is warranted.
[24]
Thus the following order is granted:
1. The application is
dismissed.
2. The applicants
attorney is ordered to pay the first respondent’s costs of the
application de bonis propriis.
NEUKIRCHER
AJ
14
October 2013
who
“we" may be is not explained in the papers
[1]
This matter came before me as one of urgency during the course of
this week and the applicants seek, inter alia, the following
relief:
“
2.
Sale of Property known as […….], Registration Division
JR, to all owners after same was repossession from Applicants
is
hereby set aside.
3.
Costs of suit...”
[2]
The facts are, briefly, the following:
[3]
The
first and second applicants are married.
[4]
1995 (1) SA 653
(SCA) at 656
[5]
2013 {5} SA 199 (GSJ)