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[2008] ZAFSHC 91
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Mashiya v Standard Bank of South Africa and Others (4818//2008) [2008] ZAFSHC 91 (11 September 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 4818/2008
In the matter of:
S M MASHIYA
Applicant
and
STANDARD BANK OF
SOUTH AFRICA
1
st
Respondent
SHERIFF OF THE HIGH
COURT: LADYBRAND
2
nd
Respondent
C SMITH
3
rd
Respondent
M E MASHIYA
4
th
Respondent
THE REGISTRAR OF
DEEDS: BLOEMFONTEIN
JUDGEMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
28 AUGUST 2008
_____________________________________________________
DELIVERED
ON:
11 SEPTEMBER 2008
_____________________________________________________
[1]
This
is an application by a joint owner of immovable property to set aside
a sale in execution of that property by the bondholder
(the 1
st
respondent) and prohibit the 5
th
respondent from registering the property into the name of the 3
rd
respondent. Only the 1
st
respondent has opposed this application. The 4
th
respondent has filed an affidavit titled “beëdigde
verklaring ter berusting”.
[2] During
1996 the applicant and the 4
th
respondent who were married to each other in community of property
purchased an immovable property described as Subdivision 2 of
Erf
386, Ladybrand, Free State Province. In their favour the 1
st
respondent registered a 1
st
and 2
nd
mortgage bond over the property in November 1996 and November 2003
respectively. As a result of the applicant’s and 4
th
respondent’s defaulting with payment in terms of these bonds,
the 1
st
respondent issued summons for payment of arrear instalments during
August 2007 in the sum of R160 842,65 together with interest
and
costs as well as a further order declaring the said property
executable.
[3] No
street address for the property is given in the Deed of Hypothecation
although the summons records the address for service
as 1 Kommando
Plein, Ladybrand, being the chosen
domicilium
citandi
et executandi
.
This however is not borne out by the Deed of Hypothecation. The
applicant accepted personal service of this summons at the address
given in the Sheriff’s return, namely No 1 Kommando Plein,
Ladybrand and pursuant to this, judgment by default was ordered
against her and the 4
th
respondent on the 10
th
October 2007 jointly and severally for the amounts claimed in the
summons.
[4] Subsequently
on the 25
th
October 2007, the Registrar of this court issued a writ of execution
directing the Sheriff to attach and take into execution the
said
property at 1 Kommando Plein, Ladybrand. In accordance with the
Provisions of Rule 46 of the Uniform Rules pertaining to
Superior
Court Practice, a Notice of Attachment together with a Notice of the
Sale in Execution was prepared. On the 31
st
October 2007 a copy of the writ of execution together with a copy of
the Notice of Attachment were forwarded by prepaid registered
post by
the Sheriff to the applicant and 4
th
respondent at 1 Kommando Plein, Ladybrand being, according to the
Sheriff the address furnished to him by the 1
st
respondent’s attorneys. These documents were annexed as
annexure’s C & D to the founding papers. The sale and
execution notice advertising the property in question for sale by
public auction on 23
rd
May 2008 described the street location of the property as 1 Kommando
Plein, Ladybrand. A copy of this notice is annexed to the
founding
papers as annexure “F”.
[5] It
is not disputed by the applicant that she received personal service
of the summons at the given address namely 1 Kommando
Plein,
Ladybrand. What is challenged by the applicant is the correctness of
the given address as being the street address of the
property in
question. The applicant denies that this is the correct address
pertaining to the property. It is her case firstly
that, the writ of
execution together with the notice of attachment and the Execution
Sale Notice are fatally defective for want
of the proper address of
the property being reflected therein and secondly that she did not
receive notice of the attachment and
the execution sale notice.
[6] It
is common cause that the local municipality in whose district the
property in question is situated that is the Mantsopa Local
Municipality, forwarded water and electricity bills to the applicant
and the 4
th
respondent at an address given as 8 Joubert Street, Ladybrand. It is
also common cause that this application falls to be decided
in the
light of the provisions of Rule 46 of the Uniform rules of Court
which are peremptory. Rule 46 requires that a writ of
execution
shall contain a full description of the nature and situation
including the address of the immovable property in order
to enable
the sheriff to trace and locate it and in order for the provisions
relating to service by prepaid registered post to
be given effect to.
Rule 46(7)(b) requires the execution creditor to prepare a sale
notice containing the description of the property,
its situation and
street number. Rule 46(3) requires the debtor to be informed of the
attachment and the prospective sale in execution
by prepaid
registered post and Rule 46(7)(a) provides that the sale in execution
is to be held only after a period of one month
has elapsed from the
date of service of the notice of attachment on the debtor.
[7] The
thrust of the applicant’s case therefore relates to the
question of the correctness of the address given on these
processes.
In support of the first challenge mounted by the applicant, Mr.
Greyling relied heavily on the decision in
MESSENGER
OF THE MAGISTRATE COURT, DURBAN v PILLAY
1952 (3) SA 678
A as authority for the proposition that, where a
street address is not provided in the writ of execution and sale
notice these
documents would have to be visited with nullity. His
reliance on this decision is however misconceived. The case dealt
with the
question of whether the corresponding provision relating to
the furnishing of a description of immovable property sold in
execution
of a judgment granted in the magistrate’s court had
been fully complied with. The only description of the property given
in this case was the following:
“
Subdivision
number 6 of lot 42 of lot 107 of Midwentworth of the farm Wentworth
number 860, situate in the country of Durban, Province
of Natal, in
extent 1 route 3.37 purchase.”
The
respondents admitted the invalidity of the sale notice in that case
by virtue of the fact that this description did not provide
an
address or street location. In this regard therefore the decision is
distinguishable from the facts of the present case where
a street
address of the property is furnished in both the writ of execution as
well as the sale notice, the only question being
whether it is the
correct street address of the attached property. In this regard it
is
apposite
to revert to the remarks of Innes CJ in
DADOO
LTD & OTHERS v KRUGERSDORP MUNICIPAL COUNCIL
1920 AD 530
at 552 in order to limit the scope of the provisions of
Rule 46 to what it enacts in clear language and in order to give
effect
to what is strictly necessary to achieve the object of the
legislature.
“
It is a
wholesome rule of our law which requires a strict construction to be
placed upon statutory provisions which interfere with
elementary
rights. And it should be applied not only in interpreting a doubtful
phrase, but in ascertaining the
intent
of the law as a whole.”
Although this dictum
related specifically to statutory provisions, I am respectfully of
the view that it has application in the
present matter. The
achievement of the object of the legislature would not be hampered if
it were to be held that the Rules relating
to attachment and
execution have to be complied with.
Rule
46(1) provides for a full description of the property including the
address to enable the Sheriff to trace the property and
identify it.
The same reasoning underscores the provisions of Rule 46(7)(b) where
it would be required that the public and potential
buyers be enabled
to trace and identify the property.
The
rationale for the requirement of an address is therefore a practical
one for without an address the Sheriff cannot attach and
without an
address a prospective buyer would not be able to visit the property
if he wishes to do so in order to decide whether
there is any point
in bidding therefor. Provided then that the property to be attached
and auctioned has been properly identified
and the writ of execution
served and the attachment made of the correct property, it is in my
view irrelevant that the address
furnished on the writ of execution
and the sale notice differs from the actual street address of the
property. It is only where
an incorrect address is furnished which
then leads to the incorrect property being subjected to the
attachment that difficulties
would arise with compliance with
Sub-rule 1 and 7(b) of Rule 46. In the present matter this is not
the case. In executing against
the immovable property concerned at
Number 1 Kommando Plein, Ladybrand, the Sherriff attached the very
property bought by the applicant
and 4
th
respondent in respect of which the 1
st
respondent had passed in its favour a 1
st
and 2
nd
mortgage bond which property was then sold in execution by public
auction to the 3
rd
respondent. The applicant, in her founding papers, does not at any
stage provide the correct address for the property. This reticence
on her part can only be due to a desire to frustrate the 1
st
and 2
nd
respondents in their attempts to proceed with and finalise the
attachment and sale in execution of the said property. On the
probabilities, it would therefore appear that she is motivated purely
by self interests of a personal nature given her acrimonious
relationship with the 4
th
respondent and the desire to retain the property for which she
clearly could not pay and is still unable to pay.
[8] In
these circumstances it would be contrary to the interests of both
parties, that is the applicant as the debtor and the 1
st
respondent as the creditor for the sale in execution to be said aside
purely on the grounds that the given address on all the processes
concerned with the attachment and execution is an incorrect one. For
in practice, that piece of erroneous information has had
no
detrimental or prejudicial effect on either party. In this regard
Mr. Greyling’s feeble attempt to lend substance to
his client’s
case by raising the issue of prejudice on the grounds that if the
correct address had been reflected on the
sale notice, the property
might have been sold to a higher bidder must fail as being entirely
speculative. There is no evidence
before me on the papers that
prospective bidders were unable to locate the property from the
address given.
[9] The
2
nd
prong of the applicants attack concerned compliance with Rule 46(3)
and I was referred by Mr Greyling in this regard to the decision
in
SOWDEN
v ABSA BANK LTD
1996 (3) SA 814
(W) as authority for the proposition that service by
prepaid registered post does not automatically create an irrebuttable
presumption
of service upon mere proof of posting so as to exclude
the need for proper service on the applicant. The Sowden-case is
however
distinguishable on the facts. In that case service by
prepaid registered post was held not to be proper service because of
the
lack of a postal delivery service to the address chosen by the
mortgagor as
domicilium
citandi et executandi
and because the creditor (the applicant) had been informed of this.
In the present case it is common cause that there was a proper
postal
delivery service to the property in question as the 4th respondent
admitted
receipt
of the notice of attachment. Therefore upon
strict interpretation of the provisions of section 46(3) it must be
accepted that applicant received the notice of attachment forwarded
to her by prepaid registered post.
[10] The application is
dismissed with costs.
____________
_
S. EBRAHIM, J
On
behalf of applicant: Adv. P du P Greyling
Instructed
by:
Van
Wyk & Preller Attorneys BLOEMFONTEIN
On
behalf of 1
st
respondent: Adv. P. Zietsman
Instructed
by:
Matsepe
Inc.
BLOEMFONTEIN
/em