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[2011] ZANCHC 37
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De Waal and Another v ABSA Bank Ltd and Others (676/2011) [2011] ZANCHC 37 (19 December 2011)
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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE HIGH COURT,
KIMBERLEY)
Case No: 676/2011
Heard on: 07-11-2011
Delivered on: 19-12-2011
In the matter between:
MARINA
DE WAAL
…..........................................................................
1
ST
APPLICANT
ERASMUS
& DE WAAL BK
................................................................
2
ND
APPLICANT
AND
ABSA BANK LIMITED
….................................................................
1
ST
RESPONDENT
THE SHERIFF, UPINGTON
….........................................................
.2
ND
RESPONDENT
THE REGISTRAR OF DEEDS
CAPE TOWN
…...............................................................................
.3
RD
RESPONDENT
MARIUS LA COCK
…......................................................................
4
TH
RESPONDENT
JUDGMENT
PHATSHOANE J:
The
present proceedings were initiated on an urgent basis by Ms Marina
De Waal and Erasmus & De Waal CC, the first and the
second
applicants. They sought an
interdict pendente lite
couched
substantially as follows:
That
ABSA Bank, the Sheriff of Upington, and the Cape Town Registrar of
Deeds, the first to the third respondents, be interdicted
from
transferring to Marius La Cock, the fourth respondent, the property
known as Stand 228 Karosnedersetting, situated in the
Khara Hais
Municipality, District Kenhardt, Northern Cape, measuring 1,2848
hectares, held in terms of the deed of transfer No:
T26489/2001,
pending the determination of the action which the applicants intend
instituting to set aside the sale in execution
held on 10 February
2011 under Case Number 1523/2009.
The
property was bonded in favour of ABSA Bank. Due to the applicants’
default on their monthly repayments ABSA foreclosed
on the mortgage
bond and issued summons against them. On 29 September 2009 it
obtained judgment against Erasmus & De Wall
CC, the registered
owner of the property and Ms De Waal, the sole member of this CC, in
the amount of R150 297.62 with interest
thereon at the rate of
10% per annum calculated from 02 July 2009 to date of final payment,
and costs. On 10 February 2011 the
property was sold to the fourth
respondent at a sale in execution.
The
first, second and fourth respondents (the respondents) launched a
three-pronged attack against this application for an interdict.
Firstly
that De Waal did not have
locus
standi
to bring the application.
Secondly that the application was brought on self-created urgency
and lastly
that there was no legal basis set out in the
papers in terms of which the sale in execution could be set aside.
When
this application was lodged Erasmus & De Wall CC, the second
applicant, was not cited as a party. The question of De
Waal’s
lack of
locus standi
fell
away when on date the application was heard the CC sought leave to
be joined as a party to the proceedings. Mr Grobler, for
the
respondents, argued that the joinder of the CC although proper
cannot confer
locus standi
on De Waal. This argument in my view is
fastidious and unconvincing. The judgment was also obtained against
De Waal in her capacity
as surety and co-principal debtor. There is
ample evidence showing that De Waal has substantial interest in the
subject-matter
before Court. The point was not well taken and falls
to be rejected.
Ms
De Waal resides with her husband, her minor daughter and her elderly
mother (aged 65) in the house in issue which is their
primary
residence. The respondents are of the view that the applicants did
make out a case that De Waal is indigent. They contend
that she is
in a position to find alternative accommodation for her family. With
regard to s
26 of the Constitution of the Republic of South
Africa Act, 108 of 1996, which entrenches the right to have access
to adequate
housing
in
FirstRand
Bank Ltd v Folscher and another, and similar matters
2011
(4) SA 314
(GNP)
at 328 para 25 the
Full Bench held,
inter alia
,
that this constitutional protection is extended to a debtor who may
lose what is usually his/her only home.
De
Waal’s former husband,
Mr Koos De Waal, died on 02
March 2007. She avers that it was her late husband’s intention
that she would be the beneficiary
of the property in question. In an
attempt to explain why the CC has not been able to perform in terms
of the bond obligations
De Waal intimates that the administration of
her deceased husband’s estate was only finalized at the end of
2009. From
this period onwards she became responsible for the
payment of the outstanding bond instalments. She was not well versed
with
the affairs of the close corporation and had no knowledge of
its financial statements.
De
Waal states further that around March 2008, by means of registered
post ABSA Bank informed her of the overdraft debt in the
amount of
R408 110.39 which was demanded in a matter of 10 days. She was
not informed of any other bond on the property.
She paid the
aforesaid sum labouring under the impression that this was the only
amount owing to the Bank.
Around
2009 De Waal received summons from ABSA at a time that her
employment had been terminated. The particulars of claim brought
to
her attention that there was a debit order of R 3 156.82
against the account which was overdrawn by R408 110.39,
as
pointed out above. This account, in her view, was closed when she
settled the balance. The estate of her late husband was
not very
liquid and she had to pay ABSA out of the little cash she had
received. She contacted ABSA and informed them of her
financial
dilemma.
De
Waal thereupon entered into an agreement with ABSA in terms of which
she was to pay an amount of R4 190.00 per month and
ABSA was to
hold in abeyance any execution steps against the property. De Waal
avers that she paid the agreed premiums for a
period of 11 months.
The respondents deny this arrangement. In any event, so they
contend, even if this was the case it was not
enough in that the
debt was owed since 2009 and the applicants did nothing to service
the bond and therefore ABSA was entitled
to sell the property 18
months later. While acknowledging that some payments were made ABSA
maintain that they were irregular.
On
08 February 2011 De Waal’s brother-in-law, Mr Fanus De Waal,
informed her that the property was advertised in the Volksblad
news
paper for sale in execution scheduled for 10 February 2011 at 10h00.
Her last communication with ABSA was in October 2009
when the notice
of attachment was served on her.
The
next day (09/02/2011) De Waal contacted ABSA Bank, Upington branch,
and spoke to one Jenine Stach who advised her that a warrant
of
attachment in execution was issued and that the arrear amount of
R77 074.70 was immediately due and payable and only
then would
the sale in execution be stayed.
The
afternoon before the scheduled sale in execution De Waal gave ABSA a
letter from Remax Estate Agents dated 09 February 2011
which reads:
“
hiermee
bevestig ek dat ons tans besig is met die verkoop van ‘n
eiendom in Kathu (erf 2836-Leeubekkie 5) wat behoort aan
W.P Eloff en
L.R Hanekom. Uit die verkoop van transaksie is daar ‘n bedrag
van R80 000.00 (tagtigduisend rand) wat na
Marina de Waal
uitbetaal moet word. Die waarborge sal teen vrydag 11 Februarie 2011
in plek wees.”
In
the morning of the sale ABSA declined to accept the terms set out in
the letter. De Waal was further informed that she had an
hour to pay
the said R77 074.70. She scraped up the money and paid it at
about 10h00 just before the sale commenced at 10h00.
The respondents
contend that the amount was not paid early enough to enable ABSA to
verify payment and forward instructions to
the sheriff to cancel the
sale.
De
Waal telephonically informed the sheriff of the payment immediately
after it was made. She states that at 10h13 when she spoke
to the
sheriff the sale had not yet commenced. The sheriff explained that
he could not stop the sale unless he was so notified
by the
instructing attorneys. The sheriff insisted on these instructions
because in the past, he states, individuals would call
him to cancel
the sale when in fact they had not effected payment.
ABSA’s
functionaries informed De Waal to fax proof of payment to their head
office. She was further advised that ABSA head
office would give Mr
Honiball, the instructing attorney, instructions to stop the sale.
Due to her emotional state De Waal says
that her partner, Mr Willie
Eloff called Honiball. Eloff says that at 10h18 when he spoke to
Honiball the latter informed him
that he was still awaiting proof of
payment from head office before instructing the sheriff to cancel
the sale. When he later
called again Honiball informed him that the
property was already sold for R320 000.00. Honiball confirms
that on receipt
of the proof of payment he contacted the sheriff who
advised him that the sale was concluded. Fanus De Waal intimates
that he
attended the sale and noted that the property was sold at
10h35. The respondents on the other hand contend that the sale
commenced
at 10h00.
De
Waal argued that she had performed in terms of the agreement and now
stands to suffer damages if the property is transferred
to the
fourth respondent. The respondents contend that the applicants
created their own perilous situation and could not pay
as they
wished.
Returning
to the preliminary attacks against the application. Mr Grobler
contended strenuously that this was a case of a self-induced
or
created urgency in that on 10 February 2011 De Waal was informed
that the property would be and was sold in execution yet
she chose
to bring the application only six weeks later on an urgent basis
without setting out in her papers the steps she took
since the date
of the sale until she brought the matter to Court.
Initially
in the founding papers De Waal outlines that the application was
brought on an urgent basis in that the transfer of
the property to
the fourth respondent was looming. The Bank had allegedly given
instructions that the property be transferred.
Later in her replying
affidavit she expatiates on this by submitting that the respondents’
attorneys had received instruction
to proceed with the transfer of
the property to the purchaser despite the fact that all parties were
aware of the dispute around
the sale of the property and applicants’
intention to have the sale set aside. She further states that if the
respondents
were prepared to give an undertaking to the effect that
they were not to proceed with the transfer of the property the
application
would have been brought in the ordinary course.
The
applicants did not admirably traverse the question of urgency in
their founding papers. There is no correspondence demonstrating
why
it took them almost two months to bring the application. Nonetheless
the lack of urgency became antediluvian upon the respondents
giving
an undertaking not to proceed with the transfer of the property.
This resulted in the matter been enrolled in the ordinary
opposed
Motion Court roll. From the background sketched above I am of the
view that justice would be hamstrung should this application
not be
considered on the basis that it is semi-urgent.
The
last point
in limine
broached somewhat conflates with the
merits. Mr Grobler argued that there was no legal basis established
in the papers for the
relief sought. The sheriff obtained written
instructions to conduct the sale in execution. When he acted in
terms of these instructions
he did not do so at command of the
judgment creditor or as an agent but as an officer of the Court. In
support of his argument
Mr Grobler referred to
Syfrets Bank
Ltd and Others v Sheriff of the Supreme Court, Durban Central, and
Another; Schoerie NO v Syfrets Bank Ltd and Others
1997
(1) SA 764
(D)
at 773-774 where the following dictum appears:
“
To
be sure, in the case of immovable property dominium will only pass to
the purchaser upon registration of transfer, but once the
sale by
auction is concluded, the judgment debtor would no longer be able to
'redeem his attached property', something which he
would undoubtedly
have been able to do before that.
When
the Sheriff attaches and sells the property in execution he does not
act as agent of the judgment creditor or the judgment
debtor but does
so as an executive of the law. See
Sedibe and Another v
United Building Society and Another
1993 (3) SA 671
(T)
,
where the obiter dictum of Kuper J in
South African
Permanent Building Society v Levy
1959 (1) SA 228
(T)
at
230B to the effect that in a sale of execution the Sheriff acts as a
statutory agent on behalf of the judgment debtor, was disavowed
as a
correct reflection of our law by the Full Bench of the Transvaal
Provincial Division per Eloff JP. In
Weekes and Another v
Amalgamated Agencies Ltd
1920 AD 218
at 225 De Villiers AJA
(as he then was) said the following:
'Now
the Messenger is an officer of the Court who executes the orders of
the Court.V Leeuwen ad Peckium: Deel XXIV 2, says of the
Deurwaerders, the Messengers of the Higher Courts (but the principles
also apply to Messengers of the Lower Courts): "sunt
enim
executores, manus regis et ministeriales judicis." And Voet (V i
62), speaks of them while discharging their functions
as representing
the Judge "cujus mandato instructi sunt". But he points out
they are not protected and may be resisted
when they either have no
mandate or go outside the limits of their authority (mandati fines).
The duties of the Deurwaerders were
very carefully circumscribed in
various Placaats. In the Instructie v/d Hove van Holland, etc of 20
August 1531 (Groot Placaatboek
II art 91) they were enjoined "de
brieven die aan hen gedirigeerd worden . . . terstond ten versoeke
van partije, ter executie
stellen na heur vorm en inhouden".
And
that still applies today. The writ is the authority of the messenger
for the attachment, and as all arrests are odious he must
at his
peril remain strictly within the four corners of the writ (V Leeuwen
R-D Law V vi 12).'
As
mentioned earlier, the authority of the sheriff in relation to the
sale in execution of immovable property is created and defined
by
Rule 46 of the Uniform Rules of Court and he must remain strictly
within the limits of his authority. Accordingly, when immovable
property is sold by the sheriff in terms of Rule 46, he becomes a
party to the contract suo nomine and he is bound to perform his
obligations thereunder, which includes the giving of transfer of the
property to the purchaser, which when effected is considered
done as
validly and as effectually 'as if he were the owner of the property'
(vide Rule 46(13) and see, too, Sedibe's case supra
at 676D).”
In
my view Mr Grobler’s argument completely misses the true
issue. At least with regard to this application the applicants
are
not requesting the Court to set aside the sale in execution. It
should be reiterated that they approached the Court for an
interim
interdict pending the institution and finalization of the action
proceedings aimed at setting aside the sale in execution,
nothing
more. The relief sought is not definitive of the parties’
rights nor does it involve their final determination.
Although
the Court was dealing with a stay of execution in
Le Roux v
Yskor Landgoed (Edms) Bpk en Andere
1984 (4) SA 252
(T)
, it
found that a stay of execution would be granted where the underlying
causa
is the subject-matter of an ongoing dispute between the
parties. In
Strime v Strime
1983 (4) SA 850
(C)
the
applicant applied for a stay of execution pending the outcome of a
variation of a maintenance order. The court held:
“
(W)hether
or not the applicant is likely to succeed in obtaining a cancellation
or variation of the maintenance order is not for
this Court to
determine. It would also be unwise to express any view because of the
pending maintenance court application.”
Therefore
it is not necessary in my view for the applicants to demonstrate that
the underlying
causa
would be removed in
due course. On this basis the point taken cannot be sustained.
In
respect of the Court’s power to regulate its own processes
Ponnan JA pronounced as follows in
Manong & Associates
(Pty) Ltd v Minister of Public Works and another
2010 (2) SA 167
(SCA)
at 173 para 11:
“
That
our courts were endowed with such power even in our
pre-constitutional era is evident from the following dictum of
Corbett
JA:
'There
is no doubt the Supreme Court possesses an inherent reservoir of
power to regulate its procedures in the interests of the
proper
administration of justice. . . .'
Courts
now derive their power from the Constitution itself, which in s 173
provides:
'The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common-law, taking into account the interests of
justice.'
As
it was put by the Constitutional Court in South African Broadcasting
Corp Ltd v National Director of Public Prosecutions and
Others:
'This
is an important provision which recognises both the power of Courts
to protect and regulate their own process as well as their
power to
develop the common-law . . . . The power recognised in s 173 is a key
tool for Courts to ensure their own independence
and impartiality. It
recognises that Courts have the inherent power to regulate and
protect their own process. A primary purpose
for the exercise of that
power must be to ensure that proceedings before Courts are fair. It
is therefore fitting that the only
qualification on the exercise of
that power contained in s 173 is that Courts in exercising this power
must take into account the
interests of justice.”
In
Graham v Graham
1950 (1) SA 655
(T)
at 658
,
Clayden J makes the following enunciation:
“
Execution
is a process of the Court and I think the Court must have an inherent
power to control its own process subject to such
rules as there are:
See Mahomed v Ebraheim
1911 CPD 29.
Making full allowance for the
right of a wife to take out a writ of execution under Rule 67(a) -
see Greathead v Greathead
1946 TPD 404
at 410 - the discretion must,
I think, still be in the Court to stay the use of its process where
"real and substantial justice"
requires such stay, where
injustice would otherwise be caused.”
The
following requisites for an interim interdict are trite: (a) a prima
facie right though open to some doubt; (b) a well-grounded
apprehension of irreparable harm if the interim relief is not
granted but the ultimate relief is eventually granted; (c) the
balance of convenience which should favour the granting of an
interim interdict and (d) the absence of other satisfactory remedy.
(See
The Law of South Africa
Vol 11 at 291 para 316
.
The
sale in execution is now a thing of the past. What remains is the
transfer of the property to the purchaser. The Bank took
a year and
six months before setting in motion the sale in execution. This
delay was inevitable, so it seems, because of an endeavour
to make
provision for the applicants to continue effecting payments as
arranged. The applicants did not properly honour the arrangement
they made with ABSA to repay the judgment debt in monthly
instalments of R4 100.00. What is quite significant at this
stage of the dispute is that the judgment ABSA obtained against the
applicants appears to have been satisfied albeit at the 11
th
hour. For some reason the instructions to the sheriff to bring the
sale to a halt appears not to have reached him in good time.
It
is instructive to have regard to what the Constitutional Court said
in
Jaftha
v Schoeman and others; Van Rooyen v Stoltz and others
[2004] ZACC 25
;
2005 (2) SA
140
(CC)
at
155 para 29:
“
Section
26 [of the constitution of the Republic of South Africa Act 108 of
1996] must be seen as making that decisive break from
the past. It
emphasises the importance of adequate housing and in particular
security of tenure in our new constitutional democracy.
The indignity
suffered as a result of evictions from homes, forced removals and the
relocation to land often wholly inadequate
for housing needs has to
be replaced with a system in which the State must strive to provide
access to adequate housing for all
and, where that exists, refrain
from permitting people to be removed unless it can be justified.”
The
Court proceeds as follows at 157-158 para 39:
“
The
importance of access to adequate housing and its link to the inherent
dignity of a person has been well emphasised by this Court.
In the
present matter access to adequate housing already exists. Relative to
homelessness, to have a home one calls one's own,
even under the most
basic circumstances, can be a most empowering and dignifying human
experience.”
As
I see it the
prima facie
right which the applicants are
seeking to assert through this interdict is based on the agreement
the applicants maintain ABSA
breached by failing to stop the sale in
execution. The existence of the agreement is common cause. Although
the purchaser has
also acquired a right or an interest in the
property by virtue of the purchase at the auction, he nevertheless
stands to earn
interest on the R320 000.00 paid by him pending
the transfer of the property into his name whether the sale is
eventually
set aside or not.
A
benevolent approach should be adopted as the interest of justice
dictate: that the applicants be afforded an opportunity to
demonstrate that they have a legitimate claim to having the sale in
execution set aside. The prejudice to the applicant is manifest
if
the property is transferred to the purchaser at this stage. The Bank
will not suffer substantial prejudice if the interdict
is granted in
view of the fact that it still has a judgment in its favour should
the Court in the end not set aside the sale.
More importantly, the
proceeds of the sale in execution are secure in a trust account.
In
the end I am satisfied that the applicants have made out a proper
case that they have a well-grounded apprehension of irreparable
harm
if the interim relief is not granted and the ultimate relief is
finally granted; that the balance of convenience favour
them and
that they do not have other satisfactory or adequate remedy open to
them. On the whole the applicants should obtain
the relief sought.
There is no reason why costs should not follow the result. As far as
the sheriff is concerned there is no
order as to costs.
In
the result I make the following order:
Order:
ABSA
Bank, the Sheriff of Upington, and the Registrar of the Deeds (Cape
Town),( the first to the third respondents) are hereby
interdicted
from passing transfer of ownership and registration of the immovable
property known as Stand
228, Karosnedersetting,
situated in the Khara Hais Municipality, District Kenhardt, Northern
Cape, measuring 1,2848 hectares,
held in terms of the deed of
transfer No: T26489/2001
to Marius La Cock, the fourth
respondent, pending the determination of the action to be instituted
within 21 days from date of
this order by Marina De Waal and Erasmus
& De Waal CC, (the first and second applicants) for the setting
aside of the sale
in execution held on 10 February 2011 under Case
No:1523/2009.
The
first and fourth respondents are to pay the applicants’ costs
jointly and severally on party and party scale.
_________________
MV PHATSHOANE
JUDGE
NORTHERN CAPE HIGH
COURT
On
behalf of the applicants
Adv
FG Van Rensburg
Instructed
by
Elliot
Maris Wilmans & Hay
On
behalf of the 1
st
, 2
nd
and 4
th
respondents
Adv
S Globler
Instructed
by
Van
De Waal & Vennote