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[2013] ZAGPPHC 413
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Bridgeway (Pty) Ltd v Isaacs (23625/2012) [2013] ZAGPPHC 413 (4 November 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE NORTH
GAUTENG HIGH COURT
PRETORIA
CASE
NO: 23625/2012
DATE:
04 NOVEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter between:
BRIDGEWAY (PTY)
LTD
................................................................
Applicant
and
ISSACSI
A
.......................................................................................
Respondent
JUDGMENT
MASIPA J:
INTRODUCTION
[1] The applicant sought an order
declaring immovable property of the respondent specifically
executable as well as for an order
for sale in execution of immovable
property. The application was brought in terms of Rule 46 (1) of the
Uniform Rules of Court.
The application is opposed and the respondent
filed an opposing affidavit.
[2] The application was a sequel to a
judgment of this court granted against the respondent, by default, on
6 July 2012. The respondent
had defaulted on a payment in terms of an
agreement between the parties in terms of which the applicant
provided the respondent
with bridging finance.
THE GROUNDS OF OPPOSITION
[3] Defences raised by the respondent
were briefly that this Court did not have jurisdiction to grant the
judgment as the amount
claimed fell within the jurisdiction of the
magistrates' court and that certain monies are with SARS and a
conveyancing attorney
would be required to release them.
[4] The contention by the respondent
regarding jurisdiction is unfounded. In terms of Section 19 of the
Supreme Court Act 59 of
1959 this Court shall have the following
jurisdiction:
"Section (19) (1) (a): A
provincial or local division shall have jurisdiction over all persons
residing and being in and in
relation to a(l causes arising and all
offences triable within its area of jurisdiction and all other
matters of which it may according
to law take cognizance, and
shall..."
There is no basis, therefore, for the
contention that the court which granted the order lacked
jurisdiction.
[5] The respondent's attempt to raise
as a defence the issues of monies which are allegedly with SARS is no
defence in these proceedings.
There is no basis why the respondent
has not collected the said monies from SARS. There is also no basis
why the applicant should
wait until such monies are retrieved.
SUBMISSIONS
[6] Counsel for the applicant submitted
that the duty to satisfy the judgment remained with the respondent.
The respondent had taken
no steps at all to satisfy the judgment or
rescind it if she saw the need for such a step. This meant that the
respondent had no
defence at all. The applicant therefore, was
entitled to the order it was seeking.
[7] The respondent, who appeared in
person, confirmed her defence as set out in the papers. In addition
she sought to argue that
the judgment against her should not have
been taken because of what she referred to as defects in the
application that led to the
judgment of 6 July 2012. In support of
her submissions she sought to hand up a number of documents from the
bar. Counsel for the
applicant correctly objected and submitted that
such conduct amounted to trial by ambush as the applicant had no
opportunity to
study the documents and properly prepare an answer.
This objection was sustained. There is another reason why the handing
up of
the documents in these proceedings is not proper, and it is
this:
[8] A formidable amount of time and the
documents sought to be introduced was used to try and demonstrate
that the judgment against
the respondent was fraudulently taken.
However, it is significant that not once did the respondent say a
word about why she has
not tried to rescind the judgment although at
one stage she had hinted to an intention to do.
[9] Pointing out to weaknesses of a
case where judgment or order has already been granted will not avail
a respondent. A judgment
or order, no matter how it was obtained,
stands until it is set aside by a competent court of law. The
judgment of 6 July 2012
stands and it is on its basis that this
application was brought. The respondent's argument should be in
respect of the present
application not in respect of the judgment
that led to this application.
[10] The respondent has not raised a
defence that the properties sought to be declared are her primary
residences. On the contrary,
in an attempt to show that she never
received notice of the proceedings against her, she stated that had
service been properly
effected her tenants would have informed her
that a summons had been issued against her. This in my view is a
strong indication
that she does not reside on any of those
properties.
[11] The respondent has also not raised
any payment in an attempt to satisfy the debt. Lastly there is no
allegation of a pending
rescission application before this court.
There is therefore no defence to the application before me.
[12] Having carefully considered
argument by counsel for the applicant and by the respondent I have
been persuaded that a case has
been made out for the relief that is
sought.
[13] In the result I grant the
following order in favour of the applicant:
1. The immovable properties of the
respondent more fully described as:
1.1 The
Respondent's half share in Erf 788, Zwartkop Ext 4, City of Tshwane,
situated at No 11 Blinkbaar Street, Zwartkop Ext 4,
held by Deed of
Transfer No. T 142637/2006; and
1.2 Remaining
Extent of Erf 1481, Bezuidenhout Valley, Johannesburg, situated at
No. 163 1st Avenue, Bezuidenhout Valley, held by
Deed of Transfer No.
60737/2006; and
1.3 Section No.
170 as shown and more fully described on Sectional Plan No. SS
41/1989 in the scheme known as Vista in respect of
land and building
or buildings situated at No. 1 Rantkant Crescent, Verwoedburgstad,
and held by Deed of Transfer No. ST 37250/2005;
and
1.4 The
Respondent's half share in Section No. 148 as shown and more fully
described on Sectional Plan No. SS 41/1989 in the scheme
known as
Vista in respect of land and building or buildings situated at No. 1
Rantkant Crescent, Verwoedburgstad, and held by Deed
of Transfer No.
ST 37250/2005; (collectively referred to as "the immovable
properties"), subject to the conditions therein
contained, is
declared executable as provided for in Rule 46 of the Rules of Court;
2. Execution against the immovable
properties, as provided for in Ruke 46 (1) (a)
(ii);
3. The word "BETTERBRIDGE (PTY)
LTD", as set out on the face of the summons is deleted and
substituted with the words
"BRIDGEWAY (PTY) LTD", so as to
accord with the pleadings.
4. The respondent is ordered to pay
costs of suit on an attorney and client scale.
TM MASIPA
JUDGE OF THE NORTH
GAUTENG
HIGH COURT
Counsel for the applicant: Z Schoeman
Instructed by: Neil Esterhuysen &
Associates Inc
For the respondent: She appeared
personally.
Date of Hearing: 22/11/2013
Date of Judgment: 04/12/2013