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[2012] ZAGPPHC 100
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ABSA Bank Ltd v Setai (14498/11) [2012] ZAGPPHC 100 (13 June 2012)
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
no. 14498/11
DATE:13/06/2012
IN
THE MATTER BETWEEN:
ABSA
BANK
LIMITED
......................................................................................
Applicant/Plaintiff
(Reg.
no: 1986/04794/06)
and
MATSHEDISO
MILLICENT
SETAI
..........................................................
Respondent/Defendant
JUDGMENT
LEGODI
J
[1]This
matter was laid before me in the unopposed motion roll on the 4 June
2012 when it was stood down for further argument on
Friday the 8 June
2012.
[2]
In the notice of motion, the plaintiff asks for relief as follows:
"1.The
Registrar of the above Honourable court be directed to issue a
Warrant of Attachment against:
ERF
…..........
PORTION 4 OF ERF 1219
…
...................
DIE
WILGERS EXTENION 49
…
...................
REGISTRATION
DIVISION J.R.
…
...................
PROVINCE
OF GAUTENG
…...................
MEASURING
447 (Four Four Seven) SQUARE METRES
HELD
.............
BY
DEED OF TRANSFER NO. T58918/2002
…
...................
(also
known as 1918 Bee-Bee Street, 4 The Willows Lofts
…
...................
Die
Wilgers extension 49)
2.
Further and/or alternative relief.
[3]
I requested counsel for the plaintiff to prepare written heads of
argument and to deal with the issue that I raised as follows:
7s
an order directed to the Registrar to issue a warrant of attachment
against the immovable property necessary, where an order
to declare
the property specially executable has already been granted?"
[4]
Just as a background to the question raised above, on the 24 June
2011, the plaintiffs counsel moved an application for default
judgment against the defendant as follows:
"WHEREFORE
the Plaintiff claims is against the Defendant as claimed in the
summons for:
1.
Payment of the amount ofR1 177 430.20
2.
Interest on the amount of R1 177 430.20 at the rate of 9.50% per
annum, from 21 SEPTEMBER 2010 to day of final payment, such
interest
calculated and capitalized monthly in arrears.
3.
An order in terms whereof the property described below be declared
specially executable
ERF:
…..........
PORTION 4 OF ERF 1219
…
...................
DIE
WILGERS EXTENION 49
…
...................
REGISTRATION
DIVISION J.R.
…
...................
PROVINCE
OF GAUTENG
MEASURING:447 (Four Four Seven) SQUARE METRES
HELD:
….......
BY DEED OF TRANSFER NO.
T58918X002
…
...................
(known
as 1918 Bee-Bee Street)
4.
Costs to be taxed on a scale as between attorney and client as per
clause 12 of the mortgage bond attached to the summons.
5.
Further and/or alternative relief."
[5]
There are two court orders in the file made on the 24 June 2011 and 4
November 2011 respectively. The two orders are in terms
of the
prayers set out in paragraph 4 above. The reason for similar two
court orders was not given.
[6]
When I raised the issue as set out in paragraph 2 of this judgment,
counsel for the plaintiff sought to suggest that such an
order is
provided in Rule 46(1) (a) (ii). The Rule reads as follows:
•
46.
Execution - Immovables
(1)
(a) No writ of execution against the immovable property of any
judgment debtor shall issue until-
(i)
a return shall have been made of any process which may have been
issued against the movable property of the judgment debtor
from which
it appears that the said person has not sufficient movable property
to satisfy the writ, or
(ii)
such immovable property shall have been declared to be specially
executable by the court or, in the case of a judgment granted
in
terms of rule 31(5), by the registrar: Provided that, where the
property sought to be attached is the primary residence of the
judgment debtor, no writ shall issue unless the court, having
considered all the relevant circumstances, orders execution against
such property.
[7]
I have a problem in finding that Rule 46(1) (a) (ii) envisages a
situation as suggested. The effect of the suggestion amounts
to this:
7.1
That before the Registrar can issue a writ of execution against
immovable property which is a primary residence the following
steps
must have been adhered to:
7.1.1
The plaintiff must first obtain an order declaring such a property
specially executable and that,
7.1.2
The plaintiff thereafter must apply for and obtain an order directing
the Registrar to issue a writ of execution or attachment
against the
immovable property concerned.
[8]
Perhaps put it differently this way, is the court hearing an
application to declare a primary residence property specially
executable, obliged to exercise judicial oversight whether or not to
make such a declaratory order? And if so, whether an exercise
of such
a judicial oversight granting an order of declaration, should not
entitle the Registrar to issue the writ of execution
without making
another application for the granting of an order to execute the
immovable property which is a primary residence?
[9]
I do not think Rule 46(1) (a)(ii) obliges the court to direct the
Registrar to issue a writ of execution or attachment of immovable
property which is also a primary residence before the Registrar could
be entitled to issue such a writ once an order of execution
is made
under the rule aforesaid.
[10]
In my view, once a declaratory order for specially execution of
immovable property which is also a primary residence, is made,
the
judgment creditor should be entitled to prepare a writ of execution
for issue by the Registrar.
[11]
All what rule 46(1)(a)(ii) does, is to oblige the court to consider
all the relevant circumstances where the immovable property
is a
primary residence, and if satisfied that an order could be made, then
proceed to make such an order of execution against such
a property.
[12]
It makes sense to me to read Rule 46(1) (a) (ii) in this context. I
am unable to see significant difference between declaring
immovable
property which is a primary residence to be specifically executable
and making an order of execution against such a property
as intended
in the proviso.
[13]
This then brings me to deal with the issue raised earlier in
paragraph 2 of this judgment. The issue in my view, should be
considered in conjunction with the principle laid down in the case of
Elsie Gundwana v Steko Development cc & Others
2011 3 SA 608
CC.
[14]
Of importance for the purpose of the present issue before me, it was
found in the above mentioned case that evaluation of the
facts to
determine whether a declaration that a hypothecated property
constituting a person's home is specially executable, must
be made by
a court of law. Such evaluation of the facts is necessary in each
case, particularly where the immovable property in
question
constitutes a person's home. (See paragraph 49 of the case referred
to above).
[15]
Execution orders relating to a person's home all require evaluation
(underlining my own emphasis). Declaration of immovable
property
specially executable is an order of execution and therefore requires
judicial evaluation and consideration of all relevant
factors. (See
further paragraph 50 in Gundwana's matter).
[16]
There is a potential invasion of home owner's right under section 26
(1) and (3) of the Constitution by the granting of an
order to
declare the property that is a primary residence to be specially
executable, particularly if such an order is granted
without judicial
oversight.
[17]
It would not be a judicial oversight if only procedural aspects are
considered when declaring immovable property that is also
a primary
residence specially executable. Such a declaration is fundamental to
one's right in terms of section 26 of the Constitution.
It therefore
requires one to make a value judgment. Due regard should be taken at
an early stage of execution regarding the impact
thereof. For example
it could have a negative impact on the judgment debtors, who are poor
and at the risk of losing their homes.
One needs to consider whether
the judgment debt could be satisfied in a reasonable manner without
involving drastic consequences
of execution against a person's home.
[18]
Alternative course should be judicially considered before granting
execution orders. (See paragraph 53 in Gundwana's case).
Such an
alternative course in my view could be the granting of judgment
coupled with a postponement of a relief for declaration
of the
immovable property to be specially executable. This has to be done
where the court under Rule 46 (1) (a) (ii) is dealing
with a primary
residence.
[19]
I think a party who wishes to have default judgment granted, and at
the same to have a declaration of the property to be specially
executable, should place before the court necessary and reliable
factors that will enable the court to evaluate and consider whether
or not to grant such an order.
[20]
Any suggestion that such an evaluation could be done at a later stage
and after the granting of a declaration order, would
make no sense.
It is not what Rule 46(1) (a) (ii) provides for. In my view,
importation of such a procedure in Rule 46(1) (a) (ii)
will defeat
the purpose of Rule 46(1) (a) (ii). The Rule serves to ensure that no
execution steps of whatever nature are taken
in respect of immovable
property which is also a primary residence without judicial
oversight. This in my view is clearly spelled
out in Gundwana's case.
[21]
Coming back to the present case, when an application for default
judgment was made, the plaintiff in the affidavit expressed
itself as
follows in paragraphs 7 and 8:"7.
"According
to my knowledge the property is occupied.
The
property is used for residential purposes".
[22]
When the two court orders of the 24 June 2011 and 4 November 2011
referred to in paragraph 5 of this judgment were made, the
court was
aware that it was dealing with immovable property which was a primary
residence. It must therefore have found that necessary
fundamental
factors were placed before it to make an order of declaration.
Whether rightly so or not, is not for me decide.
[23]
It suffices to mention that i see two scenarios been envisaged under
rule 46 (1) (a) (ii).The first scenario relates to immovable
property
which is not a primary residence or in respect of a judgment granted
by the register under rule 31(5). Remember in Gundwana's
matter, the
case was confined to the potential invasion of a homeowner's right
under section 26 of the Constitution. Therefore,
the first part of
rule 46 (1(a) (ii) should be seen as referring to instances where
evaluation is not required. The second part
of the rule refers to a
situation where the immovable property is a person's home or primary
residence as is referred to in the
rule. Here evaluation is required
seen in the light of the provisions of section 26 of the
Constitution. The court is called upon
to exercise a judicial
oversight before making an order of execution against a primary
residence property. It does not matter whether
it is a declaratory
order as envisaged in the first part or an execution order as
envisaged in the second part. For as long as
a primary residence
property is involved, a judicial evaluation is required.
[24]
Once an order of execution is made, the registrar issues a writ of
execution, which entitles the Sheriff to attach. Attachment
notice is
a document that is issued by the Sheriff in terms of which he
describes when the writ was executed or when the attachment
was made
and the description of the property so placed under attachment.
[25]
Now if in terms of the relief sought, it was intended to refer to
directing the registrar to issue a writ of execution, such
a
directive or order is not necessary in the circumstances of the case
and it is not provided for in the rule.
[26]
The court has already declared that the property in question which is
primary residence to be specially executable. I am therefore
unwilling to make an order or direct the register as suggested in the
notice of application.
[27]
Consequently, I make no order and also no order as to costs.
M
F LEGODI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
TIM
DU TOIT & CO. INC
Attorneys
for the Plaintiff/Applicant
433
Rodericks Road
c/o
Rodericks and Sussex Ave
LYNNWOOD,
PRETORIA
TEL:
012 470 7777
REF:
N RAPPARD/pb/sm/PR2016
Heard
on the 4th & 8th June 2012
Handed
down: 13 June 2012