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[2012] ZAFSHC 179
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Tlale NO and Another v Momentum Group Ltd and Others (3471/2007) [2012] ZAFSHC 179 (20 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 3471/2007
In
the matter between:
MRS
PHUTI JOYCE TLALE N.O.
........................................
1
st
Applicant
MRS
PHUTI JOYCE TLALE
...............................................
2
nd
Applicant
and
MOMENTUM
GROUP LIMITED
......................................
1
st
Respondent
SHERIFF
OF KROONSTAD
...........................................
2
nd
Respondent
ABSA
BANK LIMITED
...................................................
3rd
Respondent
JUDGEMENT:
MOLEFE, AJ
HEARD ON
:
23 AUGUST 2012
DELIVERED ON:
20 SEPTEMBER 2012
[1] This is an
application for an order in the following terms:
(a) That the attachment
of the first and second defendants/applicants’ movable goods on
the 30 January 2012 by the second
respondent as contained in the
Inventory to the Notice of Attachment in Execution is in
contravention of Section 39 of the Supreme
Court Act 59 of 1959, as
those constitute “necessary furniture and household utensils”
and do not exceed in value the
amount determined by the Minister from
time to time by notice in the gazette;
(b) That in the event it
is found that the said goods indeed fall within the definition of
“necessary furniture and household
utensils” as per
Section 39 of the Supreme Court Act 59 of 1959, but that they do
exceed in value the amount determined by
the Minister from time to
time by notice in the gazette, that there are exceptional
circumstances that exist and the amount of
each item is increased to
double the amount therein stated;
(c) That the attachment
of the applicants’ movable goods attached by the second
respondent on the instructions of the first
respondent on the 30
January 2012 as contained in the Inventory to the Notice of
Attachment in Execution be uplifted and set aside;
(d) The costs of this
application be borne by the first and second respondents on an
attorney and client scale jointly and severally
(sic) one paying the
other to be absolved.
(e) Granting the
applicants such further and/or other relief as the Court may deem
appropriate.
[2] For the purpose of
this application, the first and second defendants will be referred to
as the first and second applicants
and, Momentum Group Limited,
Sheriff of Kroonstad and Absa Bank Limited, will be referred to as
the first, second and third respondents
respectively.
[3] The applicants were
husband and wife. The third respondent sued the applicants jointly
and severally, for the payment of the
sum of R322 344,37, interest on
the capital claim at the rate of 13% per annum reckoned and
capitalised monthly as from 13 June
2007, an order declaring the
bonded property executable as well as the costs on the special scale
as between attorney and client.
[4] The claim arose from
the amount owed by the applicants in terms of a mortgage bond
registered over their property.
[5] The applicants
defended the action and the second applicant stated that she was the
first applicant’s widow and averred
that during 1996 her late
husband took out a life policy with Southern Life Insurance Company
Ltd, now known as Momentum Life Insurance
Company (the first
respondent). The second applicant also averred that on 9 July 1977,
the aforesaid policy contract was ceded
to the third respondent by
her husband to cover the bond in the event of the death of her
husband or the second applicant before
the debt owed to the third
respondent was paid up.
[6] The second applicant
further averred that after the death of her husband, she made
enquiries at the first respondent and established
that a claim had
already been submitted to the first respondent in order to have the
proceeds of the policy paid out to the third
respondent and that a
cheque was drawn in favour of the third respondent in the amount of
R172 902,30. She further alleged that
on 9 February 2005, she also
paid an additional amount of R107 000,00 to the third respondent in
respect of the same homeloan debt
covered by the mortgage bond and
that the debt owed to the third respondent was extinguished and that
she was entitled to a refund
of R110 000,00 from the third
respondent.
[7] The second applicant
was advised by her attorneys and counsel to join the first respondent
in the proceedings and a Third Party
Notice was served upon the first
respondent. The first respondent took exception against the third
party notice as the notice showed
no cause of action against the
first respondent. On the 11 November 2010, the following order was
granted by CHG van der Merwe
AJ:
(a) the exception against
the third party notice is upheld;
(b) the third party
notice is struck out;
(c) the application for
leave to amend is dismissed;
(d) the defendants are
granted leave to amend the third party notice within ten days of date
of this judgment;
(e) the defendants to pay
the costs of the exception and the notice of amendment and
application for leave to amend the third party
notice.
[8] On the advise of her
attorneys and counsel, the applicants made an application for leave
to appeal the aforesaid order and on
the 17 February 2011, the
application was dismissed with costs.
[9] On the advise of her
attorneys and counsel, the applicants made an application for leave
to appeal the aforesaid order and on
the 3 August 2011, the Supreme
Court of Appeal dismissed the application with costs.
[10] The first respondent
taxed their bill of costs as per aforesaid court orders on the 10
October 2011 in the sum of R65 721,61
(sixty five thousand, seven
hundred and twenty one rand and sixty one cents) and issued a Writ of
Execution against the applicants’
movables. On the 20 January
2012, the Sheriff attached the following movables from the
applicant’s home:
10.1 A ladder;
10.2 Lounge suite and
coffee table;
10.3 Wall unit and
television set;
10.4 2 x microwaves;
10.5 Dining-room suite
and sideboard;
10.6 Deep freezer;
10.7 2 x double bed
headboards and dressing table;
10.8 2 x single bed head
boards and dressing table;
10.9 Refrigerator.
The Sheriff put the
valuation of the attached movables at R15 500,00.
[11] The applicants
attorneys, after unsuccessfully requesting that the first respondent
should release the attached goods “as
the attachment was in
contravention of section 39 of the Supreme Court Act 59 of 1959 as
the goods constituted property not liable
to be seized in execution”,
proceeded with the application before the court.
[12] The issue to be
determined by the court was whether the attached movable goods
constitute “necessary furniture and household
utensils”
and do not exceed in value the amount determined by the Minister from
time to time by notice in the gazette.
In the event that it was
found that the movable goods indeed fell within the definition of
“necessary furniture and household
utensils” but that
they exceded in value the amount determined by the Minister from time
to time by notice in the gazette,
that there were exceptional
circumstances that existed and the amount of each item be increased
to double the amount therein stated.
[13] The applicants’
counsel also raised the issue that apart from the provisions of
section 39, it is contrary to “
ubuntu
” and that it
is cruel that “a large corporation is hounding a poor widow for
a paltry sum relative to its wealth, and
seeks to deprive the
applicant of basic furniture and utensils thereby also threatening
her dignity as enshrined by the constitution”.
[14] It is a well
established principle in law that the successful party is entitled to
have costs order made in its favour against
the unsuccessful party.
The applicant’s papers in respect of the Third Party Notice
showed no cause of action against the
first respondent and despite
the fundamental defects of the joinder application, the applicants
persisted with her attempts to
persuade the two courts that the first
respondent should be joined as a party. However her attempts were
unsuccessful and cost
orders were made against her.
[15] Section 39 of the
Supreme Court Act 59 of 1959 provides as follows:
“
The
Sheriff or a deputy-sheriff shall not seize in execution of any
process –
the necessary beds and
bedding and wearing apparel of the person against whom execution is
levied or any member of his family;
the necessary furniture,
other than beds and household utensils in so far as they do not
exceed in value the amount of R2000 as
determined by the Minister
from time to time by notice in the Gazette …”
The section 39 is meant
to protect certain assets belonging to a debtor from execution
because it was recognised that such assets
constituted necessities
without which it would be unduly difficult to survive. The section
provides judicial supervision of execution
against movables.
[16] In
JAPHTA v
SCHOEMAN AND OTHERS; VAN ROOYEN v STOLS AND OTHERS
2005 92)
SA 140
CC at 151, Mokgoro J, writing on behalf of the Constitutional
Court with reference to the similar provision of the Magistrate’s
Court Act, found that:
“
Section
67 of the Act serves to limit the range of movables that may be
attached. The section lists certain movables that are exempt
from
execution in all cases. It is clear from the list that the Act seems
to insulate from execution, certain items necessary for
the debtor to
survive.”
[17] It was submissions
of the counsel for the applicants that the court should follow the
case of
JAPHTA
above. In the case of
GUNDWANA v
STEKO DEVELOPMENT
2011 (3) SA 608
CC it was decided that
where the value of the goods attached is modest and the deprivation
of the debtor of those goods will achieve
more humiliation and
deprivation of a dignified life of the judgment debtor than the
satisfaction of the judgment debt. In this
instance it can’t be
said that the amount of R15 500 is so insignificant to the first
respondent that it would only be serve
to humiliate the applicants.
[18] In
casu
, I do
not believe that the applicant’s attached movables as listed in
the inventory are “the necessary furniture other
than beds and
household utensils” and that they are needed for the survival
of the applicants. Furthermore, it is clear from
the sheriff’s
inventory that the attached movables exceeded in value the amount of
R2 000,00 as determined by the Minister.
(Section 39(b) of the
Supreme Court Act 59 of 1959). I do not agree that the attached
movables are exempted from execution.
[19] On the issue of
“
ubuntu
”, counsel for the applicants relied on the
PORT ELIZABETH MUNICIPALITY v VARIOUS OCCUPIERS
[2004] ZACC 25
;
2005
(2) SA 140
CC, wherein the Constitutional Court held that:
“
The
Constitution and PIE confirm that we are not islands onto ourselves.
The spirit of ubuntu, part of the deep cultural heritage
of the
majority of the population, suffuses the whole constitutional order.
It combines individual rights with a communitarian
philosophy. It is
a uniting motif of the Bill of Rights, which is nothing if not
structured, institutionalised and operational
declaration in our
evolving new society of the need for human interdependence, respect
and concern.”
[20] “
Ubuntu
”
is an African ethic or humanist philosophy focusing on people’s
allegiances and relations with one another. The word
“
Ubuntu
”
has its origins in the indigenous languages of Southern Africa. A
definition of “
Ubuntu”
offered by Liberian peace
activist Leymah Gbowee was “I am what I am because of who we
all are”. This concept is that
you cannot be human all by
yourself, there should be inter connectedness. When you have the
“
Ubuntu”
quality, you are known for your
generosity.
[21] I commend and agree
with the concept of “
Ubuntu”
but the interest of
creditors to recover debts owed to them have also to be taken into
consideration and not be overlooked. One
cannot disregard the
interest of creditors because the applicants perceive them to be
contrary to the concept of “
Ubuntu”
.
The procedure put in
place for execution in order to recover money owed is reasonable and
without it, the administration of justice
would be severely hampered.
Creditors deprived of the execution procedure would be left in a
difficult financial situation with
debts unfairly created, which they
otherwise are unable to recover.
[22] In
STIFF v Q
DATA DISTRIBUTION (PTY) LTD
2003 (2) SA 336
(SCA) at 343 by
Mthiyane JA said that:
“
Costs
are awarded to a successful party in order to indemnify him for the
expense to which he has been put through having been unjustly
compelled either to initiate or to defend litigation as the case may
be. Owing to the necessary operation of taxation, such an
award is
seldom a complete indemnity, but that does not affect the principle
on which it is based.”
[24] There are other
factors which militate against a finding that the execution is
unjustifiable. In c
asu
, it is as a result of the applicants’
actions and persistence (on the advise of her attorneys) to
continuously and recklessly
pursue and involve the first respondent
in litigation, and consequently incurring unnecessary legal costs.
[25] It would appear to
me that the poor widow was ill advised by her attorneys to pursue a
dead-end cause. They should have abided
by the decision of the court
a quo
and not proceeded with litigation, causing her to incur
unnecessary legal costs.
[26] Accordingly I make
the following order:
26.1 The attachment in
execution is not in contravention of section 39 of the Supreme Court
Act 59 of 1959;
` 26.2 The application is
dismissed;
26.3 The applicants are
directed to pay the costs hereof.
________________
D. S. MOLEFE, AJ
On behalf of applicants:
Adv. S. J Reinders
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On behalf of respondents:
Adv. F R Memani
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
/eb