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[2013] ZAKZDHC 11
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Soni and Another v ABSA Bank Ltd (2908/2010) [2013] ZAKZDHC 11 (28 March 2013)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO.
2908/2010
In the matter between:
DHIRAJLAL VALLABH SONI
........................................................
FIRST
APPLICANT
SHELA DEVI SONI
..................................................................
SECOND
APPLICANT
and
ABSA BANK LIMITED
.........................................................................
RESPONDENT
__________________________________________________________________
J U D G M
E N T
(Handed
down on 28 March 2013 )
__________________________________________________________________
BALTON J
:
[1] The respondent as plaintiff, instituted action against the first
applicant who is married in community of property to the second
applicant.
[2] The summons was personally served on the first applicant on 10
March 2010. No notice of intention to defend was lodged and
the
respondent applied to the Registrar for default judgment against the
first applicant on 14 April 2010 which was accordingly
granted as
follows:
(a) Payment of the sum of R1 333 203,60;
(b)
Interest thereon at the rate of 10,5% per annum, calculated from 28
January 2010 to date of final payment;
(c) Costs of suit as between attorney and client;
(d) An
order declaring executable the immovable property described as:
The remainder of Erf 303 Atholl Heights (Extension No 1) Registration
Division FT, Province of KwaZulu-Natal, in extent of 2041
square
metres HELD under Deed of Transfer No T8346/95, situate at 7 Tummel
Place, Atholl Heights;
(e) An
order declaring executable the immovable property described as:
Erf 1425 Reservoir Hills (extension No 6) Registration Division FT,
Province of Kwazulu-Natal, in extent of 718 square metres HELD
by
Deed of Transfer No T16984/1978 subject to the conditions therein
contained, situate at 107 Kies Avenue, Reservoir Hills.
1
[3] A writ of execution was issued but before the sale took place the
first applicant arranged with the respondent to pay a lump
sum of
R42 000,00 and R12 000,00 per month.
[4] In April 2011 the first applicant commenced defaulting with the
payments of monthly instalments. He made an application for
a
reduction of the monthly payments which was declined by the
respondent. On 27 January 2012 the first applicant received the
notice of sale that the immovable property was to be sold on 8
February 2012. Discussions ensued between the parties’
attorneys
concerning payment of the arrears. The sale, set down for 8
February 2012, did not proceed and was reinstated for 11 April 2012.
[5] The matter proceeded to the opposed roll and the applicants seek
confirmation of the rule.
[6] On 10 April 2012 the applicants were granted a rule
nisi
against the respondent for an order:
(a) That
the sale in execution set down on 11 April 2012 and all sale of
executions of the immovable property situated at 7 Tummel
Place,
Atholl Heights described as the remainder of erf 303 Atholl Heights
(extension No 1) registration division Ft, Province
of Kwazulu Natal,
in extent 2041 square metres held under deed of transfer number
T8346/95 be stayed;
(b) That
the default judgment declaring the immovable property specially
executable on 14 April 2010 and all writs issued subsequent
thereto
is hereby set aside;
(c) That
the respondent is ordered to comply with rule 46(1)(ii) of the
uniform rules of Court;
(d) That any non-compliance with rules of Court and time limits be
condoned;
(e) That
the respondent is to pay the costs of this application on the scale
as between attorney and client;
(f) That
the relief set out in (a) above shall operate with immediate effect
pending the final determination of the other relief
prayed for.
[7] It was submitted on behalf of the applicants that in terms of
GUNDWANA v STEKO DEVELOPMENT
CC AND OTHERS
2
the order declaring the immovable property specially executable was
unconstitutional.
[8] The Constitutional Court in
GUNDWANA
held that it is
unconstitutional for a Registrar to declare immovable property
specially executable when ordering default judgment
under section
31(5) of the Uniform Rules of Court to the extent that this permits
the sale in execution of a person’s home
3
.
[9] The Constitutional Court was mindful of the issue of
retrospectivity
[57]
But what about retrospectivity? In
Jaftha
,
this court placed no limit on the retrospectivity of its order. The
declaration of invalidity of the legislative provisions
in that
matter did not entail, however, that all transfers made subsequent to
invalid execution sales were automatically invalid.
Individual
persons affected by the ruling still needed to approach the courts to
have the sales and transfers set aside if granted
by default. This
was made clear in
Menqa
and Another v Markom and Others
.
4
A
similar approach should be followed here.
and found that individual persons affected by the ruling will still
need to approach the courts to have the sales and transfers
set aside
if granted by default.
5
[58] In
order to turn the clock back in these cases, aggrieved debtors will
first have to apply for the original default judgment
to be set
aside. In other words, the mere constitutional invalidity of the
rule, under which the property was declared executable,
is not
sufficient to undo everything that followed.
6
In
order to do so the debtors will have to explain the reason for
not bringing a rescission application earlier, and they will
have to
set out a defence to the claim for judgment against them.
7
It
may be that in many cases those aggrieved may find these requirements
difficult to fulfill.
[59] From what has been stated
above, in relation to the legitimacy of resorting to execution
in order to obtain satisfaction
of judgment debts sounding in money,
and that only deserving cases would justify other means to satisfy
the judgment debt, it follows
that a just and equitable remedy,
following upon the declaration of unconstitutionality, should seek to
ensure that only deserving
past cases benefit from the declaration.
[10] The applicants became aware in June 2010 that the judgment had
been granted, a warrant of execution issued against their immovable
property and that a sale in execution had been arranged. The
application for rescission is out of time.
[11] Condonation can only be granted upon good cause shown. Mr Chetty
was unable to advance any grounds for condonation when requested
to
do so by the Court. He maintained that the
GUNDWANA
judgment
automatically declared the order declaring the property executable
unconstitutional.
[12] The
GUNDWANA
judgment requires the applicants to show in
addition to the normal requirements for rescission that a Court with
full knowledge
of all the relevant facts existing at the time of
granting default judgment, would have refused leave to execute
against specially
hypothecated property, that is, the debtor’s
home.
[13] The applicants have failed to set out any ground for rescission
or any defence to the claim. In fact, they do not seek rescission
of
the default judgment. The applicants only seek to set aside the writ
of execution against the immovable property at 7 Tummel
Place, Atholl
Heights. The only attack is on the property being declared
executable.
[14] There is accordingly no need to deal with the second leg of the
enquiry as set out in
GUNDWANA
which states
8
Aggrieved debtors who seek to
set aside past default judgments and
execution
orders granted against them by the registrar, must
ALSO
show,
in addition to the normal requirements for rescission, that a court,
with full knowledge of all the relevant facts existing
at the time of
granting default judgment, would nevertheless have refused leave to
execute against specially hypothecated
property that is the
debtor's home.
[15] The
GUNDWANA
judgment is clear and unambiguous on
retrospectivity. The onus is on the applicants to have satisfied the
Court that they have
met these requirements. The Court allowed Mr
Chetty the opportunity to deal with the application for condonation
but he was adamant
that it was unnecessary. Unfortunately, in the
circumstances, this Court is not satisfied that the applicant has set
out any grounds
for rescission as sought.
[16] The application is dismissed with costs.
COUNSEL FOR THE APPLICANTS: MR T CHETTY
(Instructed by:
Theyagaraj Chetty Attorneys
296 Randles Road
Sydenham
DURBAN.)
COUNSEL FOR THE RESPONDENT: MS L MILLS
(Instructed by:
Johnston & Partners
P O Box 3823
DURBAN.)
DATE OF ARGUMENT: 28 JANUARY 2013
JUDGMENT HANDED DOWN ON: 28 MARCH 2013
1
Pages
16 and 17 of the indexed papers.
2
2011
(3) SA 608
(CC).
3
Paragraph
65 at 629G.
4
2008
(2) SA 120
(SCA). See also CAMPBELL
v
BOTHA AND OTHERS
[2008] ZASCA 126
;
2009
(1) SA 238
(SCA)
.
5
See
further MENGA AND ANOTHER v MARKOM AND OTHERS
2008
(2) SA 120 (SCA)
.
6
OUDEKRAAL
ESTATES (PTY) LTD v CITY OF CAPE TOWN AND OTHERS
2004
(6) SA 222
(SCA)
([2004]
3 All SA 1)
at paras 27 – 38; and
BENGWENYAMA MINERALS (PTY) LTD AND OTHERS v GENORAH RESOURCES (PTY)
LTD AND OTHERS (CC case No CCT
39/10, 13 November 2010) ([2010] ZACC
26), as yet unreported, in paras 81 – 85.
7
GRANT
v PLUMBERS (PTY) LTD
1949
(2) SA 470 (O)
; CHETTY v LAW SOCIETY, TRANSVAAL
1985
(2) SA 756
(A)
at 764I – 765D; and DE WET AND OTHERS v
WESTERN BANK LTD
1979
(2) SA 1031
(A)
at 1042.
8
(supra).