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[2013] ZAKZPHC 52
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Rajbunzi v Changing Tides 17 (Pty) Ltd NO and Others (9948/12) [2013] ZAKZPHC 52 (9 September 2013)
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF
SOUTH AFRICA
Case no.
9948/12
In the matter
between:
SUNITHA
RAJBUNSI
....................................................................................
Applicant
and
CHANGING
TIDES 17(PTY) LTD N.O.
..............................................
First
Respondent
DESMOND MAYNE
N.O.
..........................................................
Second
Respondent
SHERIFF OF
THE HIGH COURT INANDA
........................................
Third
Respondent
MASTER OF THE
HIGH COURT
PIETERMARITZBURG
....................................................................
Fourth
Respondent
REGISTRAR OF
DEEDS PIETERMARITZBURG
....................................
Fifth
Respondent
JUDGMENT
Delivered
on 09 September 2013
STRETCH A.J.:
[1] On 2
November 2012 Pillay J granted a rule nisi, returnable on 21 November
2012, calling upon the respondents to show cause
why orders in the
following terms should not be granted:
(a) that the
applicant be granted condonation for the late launching of her
application;
(b) that the
judgment granted by default against the applicant and her deceased
husband in favour of the first respondent by the
registrar of this
court on 20 October be rescinded, set aside, declared a nullity or be
declared null and void;
(c) that the
order made by Swain J on 8 August 2012 granting the first respondent
leave to execute against the applicant’s
immovable property be
rescinded or set aside;
(d) that the
applicant be granted 30 days from the date of the issue of the rule
nisi to:
(i) launch an
application to have the second respondent removed as the executor of
her husband’s deceased estate;
(ii) launch an
application to have the letters of executorship issued by the fourth
respondent withdrawn and/or cancelled;
(iii) launch an
application for the applicant to substitute the second respondent as
executor;
(iv) that the
sale in execution of the applicant’s immovable property set
down for the same day be stayed pending an application
to have it set
aside;
(e) that any
sale agreement entered into between the first or second respondent
and any prospective buyer be declared null and void;
alternatively,
be set aside as having no force and effect;
(f) that the
third respondent be interdicted and restrained from scheduling any
further sale in execution;
(g) that the
fifth respondent be interdicted and restrained from registering
transfer of the immovable property into the name of
any other party;
(h) that the
orders referred to in paragraphs (d) to (g) above shall operate as
interim orders with immediate effect pending the
finalisation of the
applications referred to in paragraphs (a) to (c) above;
(i) that any
respondents opposing the granting of the aforesaid relief should pay
the costs thereof;
(j) that the
matter be considered urgent and that the applicant’s failure to
comply with the rules and forms relating to service
and process be
condoned;
(k) that the
applicant be granted leave to supplement her application papers
insofar as it may be necessary.
[2] On the
return date the application was adjourned to the opposed motion roll
for 28 February 2013 and the rule nisi was extended
until then, with
the applicant being given the opportunity to deliver a reply by 9
January 2013.
[3] On 28
February 2013 the application was adjourned sine die and the rule
nisi was extended until confirmed or discharged, with
the applicant
being directed to pay the wasted costs on the scale as between
attorney and client.
[4] On 9 May
2013 the matter was argued before me as an opposed motion.
[5] In a
nutshell, the history of the matter is the following:
(a) On 29
September 2010 the first respondent issued summons against the
applicant and her spouse (PreethumRajbunsi) for joint and
several
payment of R540 879,80 in respect of default in repayment of a loan
which the applicant and her spouse had obtained from
Main Street 65
(Pty) Ltd, which loan had been guaranteed by the South African Home
Loans Guarantee Trust (the Trust) of which the
first respondent was
the duly appointed trustee.
(b) Not only was
this guarantee an express condition for the granting of the loan, but
also that an indemnity bond be registered
over the immovable property
known as erf 548 Woodview, Kwazulu-Natal (the property) in favour of
the Trust as security for indemnity
to be given to the Trust.
(c) In the
premises the first respondent not only sued for payment of the
aforesaid sum with interest, but also for an order declaring
the
property specially executable with costs on the scale as between
attorney and own client.
(d) Summons was
served on 2 October 2010, and the time for entering appearance to
defend having expired, the first defendant applied
for and was
granted default judgment by the registrar of this court against the
applicant and her spouse jointly and severally,
the one paying the
other to be absolved, on 21 October 2010, which order included an
order declaring the property specially executable.
(e) It however
transpired that the applicant’s spouse had passed away some
time before the registrar had granted default judgment.
The applicant
was initially appointed as executor of his deceased estate, but was
subsequently substituted with the second respondent.
(f) On 26 June
2012 the first respondent brought a further application for leave to
execute against the property, this time citing
the present applicant
and the present second and third respondents, as respondents. On that
day Steyn J questioned whether there
had been proper compliance with
section 129 of the National Credit Act 34 of 2005 (the NCA) and the
application was adjourned sine
die, in particular for the applicant
to comply with the requirement of “delivery” of the
notice in terms of section
129(1)(a) of the NCA as provided for in
Sebola v Standard Bank
2012 (5) SA 142
CC
.
(g) The first
respondent duly complied and on 8 August 2012 Swain J granted the
first respondent leave to execute against the property
in terms of
section 30(b)
of the
Administration of Estates Act 66 of 1965
,
ordering the present applicant to pay the costs of the application.
[6] It was
contended in argument before me on the applicant’s behalf that
this application has been brought in terms of
rule 42
of the uniform
rules of this court. This, despite the fact that the applicant has
sought condonation (purportedly in terms of
rule 31)
for the late
launching of her application both in her notice of motion and in
separate heads of argument submitted by counsel,
not being the same
counsel who argued the matter before me. It seems from the heads of
argument ostensibly dealing with the merits,
that the application for
the setting aside of the default judgment (and I must assume that
this is the one granted by the registrar)
is in terms of
rule 42
whereas the prayer for the removal of the second respondent as
executor is in terms of
rule 31
, as the heads of argument refer to
“good cause” having been shown, which is one of the
requirements which this Court
has to consider when contemplating the
setting aside of a default judgment in terms of
rule 31.
In any
event, counsel appointed to argue the applicant’s case before
me was unable to take the matter any further except
to submit that
the applicant was “seeking rescission in terms of
rule 42
”.
REQUIREMENTS
FOR COMPLIANCE WITH
RULE 42
[7] In terms of
the provisions of the rule itself, it may only be utilised in order
to vary or rescind a judgment if such an order
or judgment is
(a) erroneously
sought or erroneously granted in the absence of any party affected
thereby, or
(b) one in which
there is an ambiguity, or a patent error or omission, but only to the
extent of such ambiguity, error or omission,
or
(c) granted as a
result of a mistake common to the parties.
[8] It is
contended on the applicant’s behalf that summons was issued
against the applicant and a party who is deceased, and
is accordingly
“ineffective” as it ought to have been issued against the
applicant and the second respondent, or against
the applicant in her
personal capacity and again in her representative capacity as the
erstwhile executor of her spouse’s
estate, and thus the default
judgment was erroneously sought and granted.
[9] Strictly
speaking, if the second respondent had not yet been appointed, the
applicant ought to have been cited in her personal
capacity and in
her representative capacity as the first executor of her deceased
husband’s estate. In my view however, the
first respondent’s
failure to cite the applicant in her representative capacity or to
cite the second respondent, is neither
here nor there. It is common
cause that the applicant was married to the deceased in community of
property. The registrar granted
default judgment against the
applicant and her deceased spouse jointly and severally. This simply
means that even if the applicant
was cited in her representative
capacity or if the second respondent was cited as the executor, the
effect of the judgment would
remain the same.
[10] The
applicant in any event, does not dispute her factual indebtedness.
Her primary dissatisfaction seems to be with the order
made by the
registrar declaring the property specially executable, which order I
shall deal with in due course.
THE
REQUIREMENTS OF
RULE 31
[11]
Rule
31(2)(b)
makes provision for a defendant to apply to court upon
notice to the plaintiff to set aside a judgment which has been taken
in
default of any appearance by the defendant. This must be done
within 20 days of the defendant having gained knowledge of the
judgment.
[12] A defendant
against whom default judgment has been taken as contemplated in this
sub-rule is not entitled to the setting aside
of the judgment as a
matter of course.
Rule 31(2)(b)
requires that, in order for this
Court to exercise its discretion in favour of the defendant, the
defendant must show “good
cause” for the setting aside of
the judgment.
[13] In this
context “good cause” requires two things to be shown.
Firstly, the defendant must set out reasons for the
failure to
deliver a notice of intention to defend or reasons for failure to
deliver a plea. Secondly, the defendant must demonstrate
that his
application for a rescission is bona fide by setting out the grounds
of his defence. The setting out of the grounds of
the defendant’s
defence requires the defendant, in the application for a rescission
of the order or judgment, to demonstrate
a substantial defence to the
plaintiff’s claim and that he has a bona fide and presently
held desire to raise that defence
against the plaintiff in the event
of the judgment being set aside. It is trite that the grounds of the
defence must be set forth
with sufficient detail to enable this Court
to conclude that there is a bona fide defence and that the
application is not being
brought purely for the purposes of delay.
[14] It is
argued on the applicant’s behalf that the first respondent
failed to comply with the ruling in
Gundwana v Steko Development
and Others
2011 (3) SA 606
CC
where it was held that it is
unconstitutional for a registrar to declare immovable property
specially executable when ordering default
judgment under
rule 31(5)
to the extent that this permits the sale in execution of a person’s
home, and that judicial oversight is required in this
regard. It is
also argued that the applicant did not receive the requisite notice
provided for in
section 129
of the NCA. This may arguably be so, but
the matter does not end there. The first respondent indeed sought the
judicial oversight
referred to in
Gundwana
by virtue of the
second application before Swain J by which time the incorrect
citation of the parties had also been corrected.
As for
non-compliance with
section 129
of the NCA, this was raised as a
concern by Steyn J resulting in the first respondent supplementing
its papers to provide for proper
compliance. There is sufficient
authority to support the view that non-compliance with
section 129
of
the NCA is not in itself fatal and can be rectified: see
Munien v
BMW
2010 (1) SA 549
KZD.
[15] Of
particular significance is the fact that the filing notice, notice of
set down for 8 August 2012 and the supplementary affidavit
deposed to
on the first respondent’s behalf, was served personally on the
applicant on 18 July 2012.
[16] In the
premises Swain J was in the best position, on 8 August 2012, to
refuse the application for leave to be granted in terms
of
section
30(b)
of the
Administration of Estates Act to
execute against the
property of the applicant and the second respondent as executor of
the estate, if there were sufficient grounds
before him to do so such
as non-compliance with
section 129
of the NCA or simply because of
considerations of justice and fairness in the Learned Judge’s
discretionary exercise of his
judicial oversight. The Learned Judge
however, granted the application with costs.
[17] The
sheriff’s return of service reflects that all the relevant
papers were served on the applicant personally, advising
her that the
application for leave to execute against the property would be heard
on 8 August 2012. Proof of this is annexed by
the applicant herself
to her founding papers. There is no explanation whatsoever, either in
the application papers or in the heads
of argument, as to why the
applicant did not attend court on that day to raise the spurious
arguments which she wants this Court
to accept now in this
purportedly urgent rescission application launched three months after
the order was made by Swain J and coincidentallyon
the eve of
theproposed sale in execution. There is also no explanation for this
inordinate delay. Voluminous heads of argument,
devoted specifically
to the question of condonation, are devoid of any reference
whatsoever to the matter before me.
[18] It would be
an exercise in futility for me to set aside the registrar’s
order declaring the property specially executable
when that order has
in any event been sanctioned by a judge in compliance with
Gundwana.
[19] In my view
the applicant has not only failed to show good cause as is required
by
rule 31
, but has also failed to place before this Court any
logical or acceptable grounds for me to exercise my discretion under
the common
law. She has manifested a complete disinterest in this
case right up until the 11
th
hour. In the words of Trengrove AJA quoting from a Full
Court decision in the lower court, she is the author of her own
problems
and it would be “
inequitable to
visit the other party to the action with the prejudice and
inconvenience flowing from such conduct”:
De Wet and
Others v Western Bank Ltd
1979 (2) SA 1031
AD at 1044D
[20] Instead, it
seems to me that what the applicant has attempted to do is to appeal
whatever occurred in the absence of any challenge
from her, under the
guise of an application for rescission. This is not acceptable and an
abuse of the process of this court.
[21] In the
premises I make the following order:
1. The rule
nisi is discharged and the interim relief granted in terms thereof is
set aside.
2. The
applicant is directed to pay the costs of this application.
____________________________________
STRETCH A J
FOR THE
APPLICANT: Ms A Moodley instructed by Chetty, Asmall&Maharaj,
Pietermaritzburg (ref KC/nr/KC2207) Tel no 033 3452 358
FOR THE FIRST
RESPONDENT: Mr D.B. Joubert instructed by RandlesInc,
Pietermaritzburg (ref AA van Lingen /CP/08S900379)
DATE OF HEARING:
9 May 2013
DATE OF
JUDGMENT: 9 September 2013