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[2012] ZAGPPHC 116
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Maoka and Another v Changing Tides 17 (Pty) Ltd and Others (6851/2007) [2012] ZAGPPHC 116 (15 June 2012)
NOT
REPORTBALE
NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
No.: 6851/2007
DATE:15/06/2012
PULE
VICEROY HILLARY
MAOKA
........................................................................
1st
Applicant
DIKELEDI
REBECCA
MAOKA
...............................................................................
2nd
Applicant
and
CHANGING
TIDES 17 (PTY)
LIMITED
..............................................................
1st
Respondent
SAMUEL
MASHABANE
MTSHWENI
................................................................
2nd
Respondent
SHERIFF
OF
WONDERBOOM
.........................................................................
3rd Respondent
REGISTRAR
OF DEEDS,
PRETORIA
...............................................................
4th
Respondent
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
....................................
5th
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
The applicants are seeking an order rescinding the default judgment
granted on 2 August 2007 against them. Further, in their
notice of
motion, the applicants seek the following relief:
1.1
an order directing the fourth respondent to reverse the registration
of the property, Erf 1742, The Orchards, Extension 11,
Pretoria ("the
property"), which is currently registered in the name of the
second respondent and to register it in their
names.
1.2
that the first respondent be ordered to refund to the applicants all
rent and rates paid to the second respondent; and
1.3
that the first respondent and any other respondent opposing this
application pay the costs of this application on an attorney
and
client scale.
[2]
The first and second respondents are opposing the application for
rescission of the default judgment. Further, the second respondent
is
seeking an eviction order against the applicants.
[3]
It is common cause that:
3.1
during 2003 the applicants and the first respondent concluded a loan
agreement for the acquisition of the property. The loan
was covered
by a mortgage bond in favour of the first respondent.
3.2
during 2007 the applicants defaulted on their repayments. As a result
of the default, the first respondent issued summons on
26 February
2007 and served them on the applicants on 6 March 2007.
3.3
The applicants did not enter an appearance to defend. Instead, on 23
March 2007 the applicants signed a confession to judgment
in terms of
Rule 31(1) of the Uniform Rules of Court which provided, inter alia,
that:
"WHEREAS
the Summons was served upon the First and Second Defendants on the
6th March 2007.
BUT
WHEREAS the Plaintiff is for the present refraining from taking
Judgment by Default against the First and Second Defendants
in
pursuance of an agreement entered into between the parties.
NOW
THEREFORE THESE PRESENT WITNESSES:
3.
In terms of the aforesaid summons the First and Second Defendants
confirm that in the event of the Plaintiff taking Judgment
in terms
of this document against them they acknowledge that an order
declaring the aforesaid property specifically executable
shall also
be granted.
4.
The Defendants undertake to effect payment of the following amounts
to the Plaintiff:
4.1
Payment of the sum of R 17 000.00 oh or before the 31st March 2007.
4.2
Payment of the sum of R9 351.25 on or before the 15th April 2007.
4.3
Payment of the Plaintiff's legal costs.
4.4
Further bond instalments in terms of the mortgage bond registered by
the Plaintiff over the First and Second Defendants' property
as from
the 17th of April 2007 and thereafter on the same day of each and
every month.
6.
Should the First and Second Defendants fail to effect timeous
payments of any amounts payable in terms hereof or breach any
condition or term contained herein or the mortgage bond registered
over the property , the entire balance of the Plaintiff's claim
shall
immediately become due and payable without any notice whatsoever to
the First and Second Defendants.
7.
In such an event the First and Second Defendants hereby expressly
agree and consent to Judgment by Default in respect of the
outstanding balance of the Plaintiff's claim as also that the
property referred to herein before be declared specifically
executable
being granted against the First and Second Defendants on
the strength of this Confession without any notification whatsoever
in
this regard to the Defendants."
3.4
although the applicants made some payments in accordance with the
schedule set out in the confession to judgment in order to
pay off
their arrears, the applicants again defaulted on their repayments.
3.5
as a result of the applicants' default, the first respondent applied
to the Registrar for a default judgment under rule 31(5)
which was
granted on 2 August 2007. Thereafter a writ of execution was issued.
3.6
several executions against the applicants' property were suspended as
each time the applicants had paid the arrears in order
to stave off
the sale in execution.
3.7
on 16 July 2010 the property was eventually sold in execution when
the applicants again fell into arrears.
3.8
the property was sold to the second respondent at an auction sale and
the property was transferred into the second respondent's
name on 12
January 2012.
[4]
The applicants are seeking the rescission of the default judgment
under Rule 42(l)(a) on the ground that the default judgement
was
erroneously sought and/or erroneously granted. Rule 42(l)(a) provides
that a court may, in addition to any other powers it
may have, mero
motu or upon application of any party affected, rescind or vary an
order or judgment erroneously sought or erroneously
granted in the
absence of any party affected thereby. This means that the applicant
has to show that the court in granting the
default judgment had
committed an error "in the sense of a mistake in a matter of law
appearing on the proceedings of a Court
of record. Bakoven Ltd v GJ
Howes (Pty) Ltd
1992 (2) SA 466
(ECD). If the applicant can prove the
error committed by the court, it is not necessary for him to explain
his default.
[5]
The applicants' contention that the default judgment was erroneously
sought and erroneously granted is based on the following:
5.1
The applicants contend that since the parties had signed a confession
to judgment in terms of Rule 31(1), the first respondent
were not
entitled to seek default judgment against them under Rule 31(5) but
should rather have used Rule 31(1).
The
authorities cited in the applicants' heads of argument and on which
the applicants rely do not assist. These authorities do
not support
the applicants' contention that once a confession to judgment is
sought, an aggrieved party cannot seek relief using
any other
applicable rule except Rule 31(1). The authorities cited highlight
the fact that the requirements for a valid confession
to judgment are
peremptory. The applicants have indicated that at the time they
signed the confession to judgment they did not
have an attorney who
would also have signed. There is no indication also that a verifying
affidavit exist. This does not assist
the argument of the applicants
that the first respondent should have relied on the confession to
judgment in seeking default judgment.
5.2
When applying for default judgment, the first respondent did not
disclose the existence of the confession to judgment. It is
the
applicants' contention that the confession to judgment
was a
relevant fact which the Registrar would have considered in deciding
whether or not to grant default judgment.
The
facts in Keenan-Smith and Another v Changing Tides 17 (Pty) Ltd
[2010] ZAGPH 272; 13381/2009(17 JUNE 201), referred to by the
applicants in their heads of arguments, are distinguishable from the
facts in this case. In that case the applicant was, at the
time the
default judgment sought to be rescinded, under debt review. The
respondent did not disclose this fact which was pertinent
to the
proceedings and which might have influenced the decision to grant
default judgment. The existence of the confession to judgment
is not
of relevance in view of the procedure the first respondent elected to
use to obtain default judgment against the applicants.
5.3
The applicants also challenge the competency of the first respondent
to have applied for default judgment when they were not
at the time
in arrears. However, the first respondent
has shown that the
applicants were indeed in arrears not only at the time the default
judgment was sought but also subsequent thereto.
5.4
The applicants also contend that it was not competent for the
Registrar when granting default judgment to have declared their
property to be specially executable without referring the matter to
open court to be considered by a judge. One has to bear in
mind that
at the time default judgment was granted the decision in Gundwana v
Steko Development and Others
2011 (3) SA 608
(CC) had not been made
and the Registrar then had the power to declare immovable property
specially executable.
However,
in view of the fact that the Gundwana decision (supra) has
retrospective effect, the applicants are within their rights
to seek
the rescission of a default judgment which provides for execution
against their property.
[6]
In order to succeed in having the default judgment rescinded, the
applicants need to explain their default and to show that
they have a
bona fide defence to the first respondent's claim. In this regard the
constitutional court in the Gundwana matter (supra)
stated at 628
that:
"There
may be a fear that the decision in this matter will lead to
large-scale legal uncertainty about its effects on past
matters,
where homes were declared specially executable by the registrar, and
sales in execution and transfers followed. The experience
following
Jaftha may ' be an indication that this fear is overstated. 11 must
be remembered that these orders were issued only
where default
judgments were granted by the registrar. 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. 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. It may be that in many cases those aggrieved may find these
requirements difficult to fulfil".
[7]
It is common cause that the applicants knew about the default
judgment on 15 August 2007 when the notice of attachment and the
writ
of execution were served on them. The applicants have not given an
explanation as to why they have not sought the rescission
of the
default judgment earlier, particularly in view of the grounds on
which they sought to have the judgment rescinded. Further,
having
knowledge of the default judgment, it is common cause that each time
the first respondent scheduled a sale in execution,
the applicants
would pay the accrued arrears in order to stop the property from
being sold. Although on 18 September 2011 the applicants'
attorney
had written a letter to the first respondent's attorney giving notice
that the applicants intended bringing an application
for the
rescission of the default judgment, nothing came of it. Furthermore,
on 22 February 2011 the applicants and the second
respondent agreed
that the applicants could remain on the property until the end of
March 2011 and that the applicants would pay
occupational rent to the
second respondent
[8]
Through their conduct the applicants have acquiesced to the judgment.
At no stage until the property was sold did they indicate
an
intention to challenge the validity of the default judgment or to
have it rescinded. The second respondent has acquired the
property
for value. There does not seem to be any evidence of any irregularity
in the sale in execution. The claim that the first
and second
respondents colluded in the sale seems far-fetched. The second
respondent has now acquired real rights in the property
and I see no
reason why these rights should be taken against him, particularly as
there is no evidence of any fraud in the transaction
of the sale of
the property.
[9]
As indicated in paragraph 2 above, the second respondent brought a
counter application in which it is seeking the eviction of
the
applicants from the property. On 24 October
2011
this court granted an order authorisation the second respond to serve
the applicants and the fifth respondent with a notice
in terms of
section 4(2) of the Prevention of Illegal Evictions from and Unlawful
Occupation of Land Act 19 of
1998
("the PIE"). The second respondent is now seeking the
eviction of the applicants from the property. The provisions
of
section 4(&) of the PIE do not apply since the eviction that is
being sought is founded on a sale in execution based on
a mortgage
bond.
[10]
I am satisfied that it will be just and equitable to order the
eviction of the applicants from the property as the second respondent
has shown sufficient cause for the granting of an eviction order.
[11]
Accordingly the following order is made:
1.
The application for the rescission of the default judgment granted on
2 March 2007 is dismissed with costs.
2.
The first and second applicants are ordered to vacate the property
situated at 1742, Orchards extension 11, Pretoria, Gauteng)
("the
property") within 60 days from the date of this order.
3.
Should the first and second applicant fail to vacate the property
within the period state in paragraph 1, the sheriff is authorised
to
evict the applicants from the property.
4.
The sheriff is authorised to request members of the South African
Police Service to assist in the eviction of the applicants
from the
property.
5.
The applicants are ordered to pay the costs of the counter
application.
NP
MNGQIBISA-THUSI
Judge
of the High Court