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[2012] ZAGPPHC 103
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Standard Bank of South Africa Ltd v Natha (12133/2011) [2012] ZAGPPHC 103 (13 June 2012)
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
no. 12133/2011
DATE:13/06
2012
IN
THE MATTER BETWEEN:
STANDARD
BANK OF SOUTH AFRICA
LIMITED
..........................................................
Plaintiff
and
NATHA
DENISE
REGINA
....................................................................................................
Respondent
JUDGMENT
LEGODI
J
1.
Counsel who appeared in this matter also appeared in the matter of
ABSA BANK LTD v MATHSEDISO MILLICENT SETAI under case number
14498/11. The relief sought in the present case is more or less the
same as the relief sought in Setai's matter.
2.
The relief in the present case is as follows:
"1.
THAT pursuant to the default judgment granted by the Registrar of the
above Honourable Court under the aforementioned case
number, on 26
JANUARY 2012, the Registrar of the above Honourable Court is
authorised to issue a warrant of execution in respect
of the
aforesaid default judgment and the immovable property identified in
paragraph (3) of the default judgment
2.
THAT the respondent to pay the costs of this application on an
attorney and client scale in the event of her opposing the
application".
3.
This is said to be a relief as envisaged in Rule 46(1) (a) (ii). The
rule reads as
follows:
"(1)(a)
No writ of execution against the immovable property of any judgment
debtor shall issue until-
(ii)
such immovable property shall have been declared to be specifically
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 a primary residence of the
judgment
debtor ,no writ shall issue unless the court , having considered all
the relevant circumstances, orders execution against
such property"
4.
In Setai's matter the applicant asked the court to direct the Sheriff
to issue a writ of attachment purportedly in terms of Rule
46(1) (a)
(ii). I made an order in Setai's case to the effect that such an
order was not necessary and that it is not provided
for in Rule 46(1)
(a)(ii). An order in that case, declaring the immovable property
which is also a primary residence was made by
a court as envisaged in
the Rule.
5.
Coming back to the present case, declaratory order for specially
execution of the immovable property was made by the Registrar
on the
26 January 2012.
6.
The followings preceded the order of declaration aforesaid: On the 22
February 2011 the plaintiff issued summons against the
defendant The
defendant is said to have failed to pay in terms of a mortgage bond
that was passed in favour of the plaintiff on
the 25 April 2008.
7.
The defendant did not enter an appearance to defend. On the 21
November 2011 the plaintiff prepared a notice of application in
terms
of Rule 31(5). Rule 31 (5) provides as follows:
"(5)(a)
Whenever a defendant is in default of delivery of notice of intention
to defend or of a plea, the plaintiff, if he
or she wishes to obtain
judgment by default, shall where each of the claims is for a debt or
liquidated demand, file with the registrar
a written application for
judgment against such defendant: Provided that when a defendant is in
default of delivery of a plea,
the plaintiff shall give such
defendant not less than 5 days' notice of his or her intention to
apply for default judgment.
8.
However, on the 26 January 2012, the Registrar granted judgment as
follows:
"1.
Payment of R637 088.49 together with interest thereon at the rate of
9.00% per annum, compounded monthly from the 10 JANUARY
2011 to date
of final payment, both days inclusive:
3.
An Order declaring the following property specially executable for
payment of the aforesaid sum or part thereof:
SECTION
NO. 139 as shown and more fully described on SECTIONAL PLAN NO.
SS200/2007 in the scheme known as MILPARK MEWS, in respect
of the
land and building or buildings situate at BRAAMFONTEIN WERF TOWNSHIP,
CITY OF JONNESBURG, of which section the floor area,
according to the
said sectional plan is 42 (FORTY TWO) SQUARE METRES in extent; and
An
undivided share in the common property in the scheme apportioned to
the said section in accordance with the participation quota
as
endorsed on the said sectional plan.
HELD
UNDER DEED OF TRANSFER NO. ST62521/2007
Be
postponed sine die;
4.
Plus costs in the sum of R650.00 plus sheriffs charges R264,45."
9.
By the time the Registrar did so, Rule 46 as amended and quoted above
was already in place. It is very clear that declaring immovable
property specially executable can only be done by the court, either
under the first part of Rule 46(1)(a)(ii) or in the second
part
dealing with immovable property which is also a primary residence.
Therefore the Registrar as on the 26 February 2012 had
no authority
to make such an order of declaration.
10.Whilst
it is not clear from the papers, whether the property in question is
a primary residence, I think it is important to make
such an averment
if a party wishes to have immovable property to be declared specially
executable or an order of execution against
such a property.
Reference to section 26(1) of the Constitution in paragraphs 6 and 7
of the particulars of claim, in my view is
not sufficient. I think it
would not be impossible for a credit provider to establish whether
the property is a primary residence
or not.
11.Before
I conclude on the Registrar's lack of authority to declare immovable
property specially executable, it is important to
touch on the
principle laid down in Gundwana v Steko Development cc & Others
2011 (3) SA 608
CC. This is a judgment that was delivered on the 11
April 2011. Declaration of immovable property to be specially
executable was
found to be unconstitutional because it was sanctioned
by a Registrar who could not exercise judicial oversight.
12.
Coming back to the relief sought, that is, authorising the registrar
"to issue a warrant of execution in respect of the
aforesaid
default judgment and the immovable property identified in paragraph
(3) of the default judgment", I am unwilling
to grant such an
order for the following reasons.
12.1
The registrar does not need any authorisation for the purpose of
issuing a writ of execution in respect of default judgment
granted in
the amount of R637 088.49. This should be seen as a judgment granted
by default in terms of Rule 31(5).
12.2
As for an order declaring the immovable property specially
executable, the effect of what I am been asked to do is to perpetuate
the constitutional invalidity of the registrar's action.
12.3
The registrar had no authority to make such an order of declaration.
As I said earlier in this judgment, it is only the court
that can
make such an order of declaration.
12.4
Lastly, had an order of declaration been made by a court in the
present case, I would still be reluctant to make an order authorising
the registrar to issue a writ of execution. Such an application is
not necessary and is not provided for inRule46(1)(a)(ii).
12.5
The effect of Rule 46(1) (a)(ii) is that, unless a declaration is
made by court or unless an execution order is made by the
court as
envisaged in the proviso, the registrar would not be competent to
issue a writ of execution or attachment. Similarly there
can be no
talk of issue of writ unless a court order is made with regard to
declaration of specially execution or execution as
envisaged in the
proviso.
12.6
Rule 46 (1)(a)(ii) in my view should be understood to mean that once
a court had declared immovable property specially executable,
the
registrar should be entitled to issue a writ of execution. The
plaintiff prepares a writ of execution and thereafter submits
it to
the registrar for issue. The application is therefore destined to be
dismissed.
13.
Should the plaintiff wish to pursue declaration, it will be entitled
to apply to court for such an order properly motivated.
I want to
imagine that should this be the chosen route, the plaintiff will bear
in mind amongst others, what is articulated in
Gundwana's supra and
also in Sebolas' Vs Standard Bank SA Ltd & Others case number CCT
98/11
[2012] ZACC 11.
14.
Consequently I make an order as follows
14.1The
application is dismissed.
14.2No
order as to costs.
LEGODI
JUDGE
OF THE HIGH COURT
APPLICANT'S
ATTORNEYS
STRAUSS
DALY INC.
c/o
STRAUSS DALY ATTORNEYS
Centaur
House 38 Ingersol Street LYNNWOOD GLEN PRETORIA
REF:BU7sm/S
1663/3379 TEL 011 444 4504
RESPONDENT'S
ATTORNEYS STREICHER - DESWARDT ATTORNEYS
c/o
BEETGE-HOEKSEMA 518 Begemann Street Eloffsdal PRETORIA
REF:
HOEKSEMANN/MS0021 TEL: 012 335 6240