Macheka and Another v ABSA Bank Bpk and Others [2009] ZAFSHC 44 (6 March 2009)

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[2009] ZAFSHC 44
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Macheka and Another v ABSA Bank Bpk and Others [2009] ZAFSHC 44 (6 March 2009)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 6323/2008
In the case between:
FUSI STEPHEN
MACHEKA
1
st
Applicant
SEJABENG EMILY
MACHEKA
2
nd
Applicant
and
ABSA BANK BEPERK
1
st
Respondent
DIE
BALJU VAN DIE LANDDROSHOF,
2nd Respondent
WELKOM
DIE
REGISTRATEUR VAN AKTES,
3rd Respondent
BLOEMFONTEIN
_____________________________________________________
JUDGMENT:
MOLEMELA, J
_____________________________________________________
HEARD ON:
27 NOVEMBER 2008
_____________________________________________________
DELIVERED ON:
6 MARCH 2009
_____________________________________________________
[1]
Introduction
The
applicants
brought
an application on the 14
th
October 2008. This application was brought in two parts, i.e. Part A
and Part B. Part A of the application was launched as an
urgent
application seeking interim relief pending the finalisation of Part
B, the latter purporting to be an ordinary application.
[2]
Relief
sought
The
relief sought under Part A of the application was
inter
alia
the following:
“
1. Dispensing
with the forms and service provided for in
the Rules of the above Honourable Court and allowing the matter to
proceed as one of urgency in terms of Rule 6(12) and condoning
any
non-compliance with the Rules by the Applicant;
Pending the finalisation of the
application referred to in Part B hereunder;
2.1 Interdicting and restraining the
first and second respondents from proceeding to alienate by way of
sale, alternatively, dispose
in any manner whatsoever on 15 October
2008 or any other date set or arranged to be set by the second
respondent the immovable
property described as Erf 85, Rheeder Part,
district Welkom, Free State Province, held under Deed of Transport
No. T023081/2000
with its correlating physical address at No. 31,
Uysstraat Rheeders Park, Welkom, Free State Province.
2.2 Interdicting
and restraining the third respondent from effecting transfer of
ownership of the immovable property described as
Erf 85, Rheeder
Park, district Welkom, Free State Province, held under
Deed
of Transfer No. T023081/2000 with its correlating physical address at
31 Uys Street, Rheeder Park, Welkom, Free State Province,
to any
other third party;
3. The first and second respondents
shall pay the costs of this application on an attorney and own client
scale.”
[3]
Background
The
background of this matter is that the applicants purchased an
immovable property from the 2
nd
respondent (a sheriff of the Magistrate’s Court, Welkom) at a sale
in execution on the 3
rd
March 2004. The purchase price was the sum of R5 000,00. In terms
of the applicable conditions of sale, the applicant was to
pay the
purchase price to a firm of attorneys known as Neumann Van Rooyen
Sesele Attorneys. At the request of this firm of attorneys,
the
applicant paid the sum of R1 574,00 in respect of transfer costs.
This amount was paid on the 6
th
April 2004.
[4] On
the 19
th
April 2007 the applicant’s attorney addressed a letter to the first
respondent’s office, requesting to be furnished with the
original
title-deed. There was no reply. On the 26
th
April 2007 the applicant’s attorney then addressed a letter along
the same lines to Messrs Neumann Van Rooyen Sesele Attorneys.
There
was no reply. The applicants continued sending similar letters
without getting any response. On the 16
th
November 2007 they received a letter from a firm of attorneys called
Naudes, which was apparently representing the first respondent.
In
their letter Messrs Naudes advised that they were contacting Messrs
Neumann Van Rooyen Sesele Attorneys to ascertain what the
position
was with regards to the matter.
[5] On
the 17
th
March 2008 Messrs Naudes advised the applicants to direct all
correspondence related to this matter to Messrs Neumann Van Rooyen

Sesele Attorneys. It was only on the 16
th
July 2008 that the applicants received a letter from Messrs Neumann
Van Rooyen Sesele Attorneys, in terms of which they were advised
that
the agreement of sale concluded between the applicants and the second
respondent was allegedly cancelled on the 20
th
August 2004 due to the applicants’ failure to comply with the terms
of the Conditions of Sale. Correspondence was exchanged
between the
parties, culminating ……. first respondent informing the
applicants that they were proceeding to arrange for a sale
in
execution relating to the property in question.
[6]
On
the 10
th
September 2008 Messrs Neumann Van Rooyen wrote a letter to the
erstwhile owner of the property, advising that a sale in execution

had been arranged for the 15
th
October 2008. This letter was then delivered to the applicants on 28
September 2008. The contents of this letter prompted the
applicants
to bring this application against the respondents. The papers were
served on the respondents on 10 October 2008, with
the indicated date
of the application being indicated as the 14
th
October 2008. On the 14
th
October 2008, by agreement between the parties, the following order
was granted:
“
1. The sale in
execution scheduled for the 15
th
October 2008 be cancelled and the first respondent will not arrange a
new sale in execution until this application is finalized.
The matter is postponed to the 27
November 2008.
The respondents will file opposing
affidavit on/or before 4 November 2008.
The applicant will file replying
affidavits, if any, on or before 18 November 2008.
The costs of today stand over to be
argued with the main application.”
[
7]
Urgency
Adv.
Snellenburg contended on behalf of the respondents that the
applicants had not shown urgency in respect of both Part A and
B of
their applications. Mr Beharie, on behalf of the applicants,
submitted that only Part A of the application was launched on
an
urgent basis. Since Part A was settled by the parties, resulting in
the order that was granted, no urgency still needed to
be shown in
respect of Part A. Part B was not launched as an urgent application
but as an ordinary application.
[
8] Adv.
Beharie contended that the matter was indeed urgent as the applicant
had only become aware of the planned sale in execution
on the 3
rd
October 2008. Their attorneys immediately wrote a letter to the
respondent’s attorneys pointing out why the sale in execution

should not be proceeded with and threatening legal action if the said
sale in execution was not cancelled. The applicants’ attorneys

allowed the respondent’s attorney’s time to respond and when they
received no response they then launched the application on
the 10
th
October 2008. He submitted that there were no delays on the part of
the applicants. On this point Adv. Snellenburg contended
that the
applicant had not acted swiftly despite the respondent advising them
that it would be arranging another sale in execution.
He contended
that the applicants tried to cover up for their laxity by directing
unnecessary correspondence to the respondents
thus creating the
urgency when there was none.
[9] Mr
Beharie contended that there was in any event, no longer any need to
adjudicate on the urgency of the matter as the respondents
had, by
virtue of having agreed to the order granting cancellation of the
contract, impliedly conceded the urgency of the matter.
I would tend
to agree with Mr Beharie’s submission on this point. I accept that
the respondent’s representative voluntarily
agreed to the granting
of the order. Parties that are of the view that the time given to
them by their opponents for purposes
of responding to affidavits
supporting an urgent application is too short do not have to throw
their hands in the air in despair
and feel obliged to agree to the
relief sought. Under such circumstances, they normally appear in
court and request a postponement
of the matter in order to enable
them to file their papers. This was not done by the respondent and
they instead opted to enter
into an agreement the effect whereof was
the granting of the very relief sought by the applicant, except for
the cost order. I
therefore agree that the agreement entered into by
the parties amounts to a concession of the urgency of the matter and
thus makes
it unnecessary for me to adjudicate thereon, i.e. on
urgency. I am fortified in this view by the decision of the court in
VENTURE
CAPITAL LTD v MAUERBERG
1991 (1) SA 96
(W) where it was held that where the matter has lost
its urgency as a result of an interim arrangement between the parties
the
matter will not be enrolled otherwise than in accordance with the
Rules, in other words will no longer be enrolled as an urgent

application.
Part A of the
Application:
[
10] I
also agree with Mr Beharie’s contention that it is not necessary
for the applicants to make a case for the granting of interim
relief
as sought in Part A of the application because the respondent agreed
that the sale in execution be cancelled and that no
further sale date
be arranged until the outcome of the Part B application. Indeed, in
so doing the interim relief had been obtained
by way of agreement and
I accordingly deem Part A of the application as settled.
Part B of the
Application:
[1
1] I
now turn to deal with Part B of the application. Adv. Snellenburg
contended that the applicants needed to make out a case
of urgency
regarding this part of the application as it was not drawn up in
compliance with the rules regulating ordinary applications.
When one
considers the format of Part B, it is indeed not strictly in
accordance with form 2A of the first schedule. Adv. Beharie

requested me to condone this non-compliance by the applicants. It is
trite that such non-compliance is condonable. I am inclined
to
condone this non-compliance especially due to the close link or
connection between Part A and B of the application, especially
as the
respondents have not shown that they suffered any prejudice as a
result thereof.
Prescription:
[12] The
first respondent contends that the applicant’s claim has become
prescribed in terms of the provisions of the
Prescription Act 68 of
1969
. As the prescription is a point of law it stands to reason that
I should first make a finding on this aspect before considering

further arguments raised by the applicants.
Section 12
of the
Prescription Act 68 of 1969
provides as follows:
“
12(1) Subject to the provisions of
sub-sections (2), (3), and (4), prescription shall commence to run a
soon as the debt is due.
If the debtor willfully prevents the
creditor form coming to know of the existence of the debt,
prescription shall not commence
to run until the debtor becomes
aware of the existence of the debt.
A debt shall not be deemed to be due
until the creditor has knowledge of the identity of the debtor and
the facts from which the
debt arises: Provided that a creditor
shall be deemed to have such knowledge if he could have acquired it
by exercising reasonable
care.
Prescription shall not commence to
run in respect of debt based on the commission of an alleged sexual
offence…”
[13] On
the aspect of prescription, Adv Beharie contended that as the
applicants were not aware that transfer had not been effected,

prescription could not have started running until the 3
rd
April 2007, which was the date on which they became aware that the
property was not registered in their name. On this point, adv.

Snellenburg correctly pointed out that such an averment had not been
made in the applicants’ founding affidavit. Neither was
it even
made in the replying affidavit. One could perhaps, to the
applicants’ credit, consider that even though it was not expressly

so stated, it was implied. However, this consideration is out of the
question for two reasons:- firstly, the applicants’ counsel
did not
advance such an argument; secondly, one of the averments made in the
replying affidavit in fact negates this conclusion
as it is to the
effect that the applicants knew of no legal impediment that barred
transfer. In his own words the first applicant
stated as follows:
“
At this juncture I briefly pause to
state, with respect, that there is no breach of any of the conditions
of the deed of sale on
my part…”
He further stated as
follows:
“
Based on the
fact that I paid the purchase price to the second respondent, as well
as the costs of transfer to Neumann van Rooyen,
I was under the
distinct impression that Neumann van Rooyen
Sesele would attend to the transfer of ownership of the immovable
property into my name.”
It is quite clear that
the applicants expected transfer to be effected immediately after
payment of the purchase price and costs.
[14] In
their replying affidavit, the applicants denied that the right to
claim transfer constitutes debt as contemplated in the
Prescription
Act. In
argument, it was contended on their behalf that the claim
for transfer has not become prescribed as the applicants did not have

knowledge that the property was not transferred to them. These two
contentions fly against the face of what was laid out in the
case of
DESAI
NO v DESAI
[1995] ZASCA 113
;
1996 (1) SA 141
(A) at 146 I where the following was stated:
“
The term “debt” is not defined
in the Act but in the context of 510(1) it has a wide and general
meaning and includes an obligation
to do something or refrain from
doing something.
…
It follows that the undertaking in
clause 3(d) to procure registration of transfer was a “debt” as
envisaged in
section 10(1)
Section 12(1)
of the Act provides that
“prescription shall commence to run as soon as the debt is due.”
In
casu
,
the debt became due as soon as the second respondent was obliged to
perform.
Insofar
as the applicants seek to rely on the provisions of
section 12(3)
of
the
Prescription Act on
the basis that they did not have knowledge of
the facts from which the debt arises (i.e. they did not know that
that transfer was
not attended to)
,
I would agree with adv Snellenburg’s contention that the first
applicant, being an attorney, could easily have acquired that

knowledge by exercising reasonable care, i.e. by the simple exercise
of doing a Deeds Office search on the property. The applicants
would
therefore be deemedto have had such knowledge.
[15] Insofar
as the applicant has averred that they had complied fully with all
the requirements and that there was no legal impediment
that barred
transfer, then the debt became due immediately after payment of
transfer costs. As payment was, according to the applicants,
made on
the 6
th
April 2004, the debt became due on that day and became extinguished
by prescription 3 years from date. It stands to reason that
by the
time the applicants brought their application, their claim in respect
of transfer had already prescribed. In the light
of the fat that
this finding is in itself decisive of this case, it is unnecessary
for me to decide on whether there was a valid
cancellation of the
contract or not.
[16] I accordingly make
the following order:
16.1 Each party is to
bear its own costs in respect of the application brought in terms of
Part A of the Notice of Motion.
The
application brought in terms of Part B of the Notice of Motion is
dismissed with costs.
__________________
M. B. MOLEMELA, J
On behalf of the
applicant: Adv. N. Beharie
Instructed by:
Fusi Macheka Inc
BLOEMFONTEIN
On behalf of the
respondent: Adv. N. Snellenburg
Instructed by:
Naudes
BLOEMFONTEIN
/EM