De Bruyn and Another v ABSA Bank Limited and Others (9940/06) [2007] ZAWCHC 5 (1 February 2007)

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[2007] ZAWCHC 5
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De Bruyn and Another v ABSA Bank Limited and Others (9940/06) [2007] ZAWCHC 5 (1 February 2007)

IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO: 9940/06
In the matter between:
JONAS
DANIEL CHARLES DE BRUYN
First Applicant
MARGARET
MARIA DE BRUYN
Second Applicant
and
ABSA BANK LIMTED
First Respondent
THE
SHERIFF, KUILSRIVER MAGISTRATE COURT
Second
Respondent
BRIAN
LEAONARD DAVIDS
Fourth Respondent
ENVER
JASON DILLON DE BRUYN
Fifth Respondent
THE
RESGISTRAR OF DEEDS, CAPE TOWN
Sixth Respondent
________________________________________________________________________
JUDGMENT
NDITA, J:
Introduction
[1] This is an urgent
application for an interdict restraining the first, second and sixth
respondents from causing the transfer and
registration of Erf 1129,
Blue Downs into the names of the third and fourth respondents, free
of the preference of the right of
habitatio
in favour of the
applicants, pending the determination of the applicants’
application before the Magistrate Court that:
i) the applicants be
joined with the fifth respondent as co-defendants in the action
instituted by the first respondent against the
fifth respondent;
ii) the
late application for rescission of the judgment in favour of the
first respondent be condoned and rescission of the default
judgment
granted to the first respondent, as the plaintiff in the said matter,
be rescinded to the extent that the property was declared
executable
free of the preference in respect of the right of
habitatio
in
favour of the applicants as detailed in the Deed of Transfer;
iii) directing
that the sale in execution by the second respondent to the third and
fourth respondents be nullified;
The parties
[2] The applicants are
married to each in community of property and are both residing, under
a right of
habitation,
in a dwelling house situated at 24
Visser Street, Blue Downs, Cape Town, commonly referred to Erf 1129
(“the property”). The respondents
are:
i) First Respondent: ABSA
BANK LIMITED, a registered bank duly incorporated according to the
banking laws of the Republic of South
Africa, the holder of a
Mortgage Bond registered over the property and passed by the fifth
respondent in its favour as security for
monies lent and advanced;
ii) Second
Respondent: the Sheriff of the Magistrate Court for the District of
Kuils River, Mr IJ Hugo, who has sold to the third
and fourth
respondents the property in a sale in execution under a Magistrate‘s
Court judgment granted in favour of the first respondent
against the
fifth respondent in a mortgage bond foreclosure action;
iii)
Third and Fourth Respondents: Mr Brian Leonard Davids and Mrs Renee
Christine Davids, who are married to each other in community
of
property, the present purchasers of the property in a sale in
execution;
iv)
Fifth Respondent: Enver Jason Dillon De Bruyn, a training sales
manager of Blue Downs Ways, Tuscany Glen, the present bare dominium
owner of the property which has been sold by the second respondent to
the third and fourth respondents;
v)
Sixth Respondent: the Registrar of Deeds who is empowered, in terms
of the Deeds Registry Act of 1937 (as amended), to effect the
registration of transfer of the property.
Application for an
amendment of the relief sought
[3] On 30 October 2006,
the date of this hearing, the applicants sought an order for the
amendment of the relief set out in the Notice
of Motion, that these
proceedings be postponed, pending determination by this court of an
action by way of combined summons, which
it intended to institute
against the first and sixth respondents and conveyancer, Julene
Zimmerman (“Zimmerman”). I refused the
application on the basis
that the respondents, although apprised of the amendment on the day
of this hearing, had not had the fullest
opportunity to deal with the
claim for the alternative relief sought, more so that it was
substantially dissimilar to the relief
sought in the Notice of
Motion. (See
Combustion Technology (Pty) LTD
2003 (1) SA 265.)
Factual
Background
[4] The background facts
may be stated briefly as follows. The applicants are the holders of a
limited real right of
habitatio
in respect of the property.
The fifth respondent is the applicants’ son and owner of the
property. He purchased the property from
the applicants and others
who were joint owners thereof. The property was bonded in favour of
the first respondent for a sum of R109
270-96. The fifth respondent
defaulted on the loan and, after action was instituted against him,
default judgment was granted on
3 March 2006 at the Magistrate’s
Court in Kuils River, as he had failed to enter an appearance to
defend. The applicants were not
cited as defendants in the aforesaid
action. Because there was no intervention from the fifth respondent,
the Sheriff was directed
to execute against the property. The
property was sold at a public auction to the third and fourth
respondents.
[5] It is common cause
that there is a right of
habitatio
in terms of the bond which
was waived in favour of the first respondent. Originally, the
applicants had the right of
habitatio
over the property, but
that changed on 16 August 2002 when Zimmerman drew up a power of
attorney waiving the mentioned right of
habitatio
in favour of
the first respondent.
[6] The applicants
challenge the validity of the waiver of
habitatio
in favour of
the first respondent on the basis that Zimmerman, as the agent of the
first respondent, unilaterally effected the waiver
of the applicants’
right of
habitatio
without explaining and clarifying the
meaning and import of the waiver to them. Furthermore, so allege the
applicants, they were
hurried into signing it without given an
opportunity to apply their minds. In addition thereto, the applicants
aver that the sale
of the property is unconstitutional and null and
void because they ought to have been joined as co-defendants in the
main action
since they were the holders of the right of
habitatio
in the bonded property.
[7] The first respondent,
on the other hand, avers that, because the applicants had waived
their right in favour of it, the first
respondent’s rights under
the bond are free of any real impediment which could detract it from
seeking an order that the property
be declared executable. Stated
differently, the right of
habitatio
relied upon by the
applicants does not, in any manner, affect the order of court
declaring the property to be executable.
[8] Much of the
respondents’ version is not disputed except for the waiver
instituted by Zimmerman. There having been no request
for a referral
of such dispute to oral evidence and these being motion proceedings,
the final relief which is sought by the applicants
should be granted
if the facts alleged by the applicants, that are not denied by the
respondents, together with facts asserted by
the respondents, justify
such an order.
Plascon-Evans Paints Limited v Van Riebeeck Paints
(Pty) Limited
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E- 635 C.
[9] The first respondent,
without making any formal admissions, agreed that the transfer of the
property would be stayed pending the
hearing of this matter. The
agreement was made an order of court on 14 September 2006.
The Issues
[10] The crisp issue to
be determined in this matter is whether the applicants waived their
right of
habitatio
in favour of the first respondent and
whether such right establishes a clear right as requisite in
applications of this nature.
Analysis and
Applicable Law
[11] I have indicated
earlier on that the sale of the property by the first respondent to
the fifth respondent was subject to a right
of
habitatio
in
favour of both applicants. It is also not disputed that, on 28 August
2002, the fifth respondent declared the right of
habitatio
in
favour of the third respondent in the following words:
“
And
the said appearer on behalf of the said JONAS DANIEL CHARLES DE BRUYN
and MARGARET MARIA DE BRUYN, declared to waive and postpone,
as they
hereby waive and postpone, in favour of the mortgage bond, the
habitatio over the said property held by their principal to
the
intent that their said principal shall not at any time be in a
position by virtue of such habitatio to compete with said mortgagee,
but in the event of the said property being sold in execution or in
insolvency, the mortgagee shall have the right to have the property
transferred to the purchaser thereof free from such habitatio and to
have the whole proceeds of such sale applied towards payment
of such
moneys as shall then be due and owing to the mortgagee under this
bond, plus all costs and interest due.
”
[12] The applicants also
admit that they attended upon the offices of Zimmerman and signed the
power of attorney entitling Zimmerman
to effect the waiver. Thus,
the Deed of Transfer reflects that the applicants and others
authorised their attorney, GREGORY MARK
HARPER, in the presence of
the Registrar of Deeds, to renounce all their rights and title to the
property. The record reveals that
Zimmerman was duly authorised by
the first respondent, in writing, to execute the bond on behalf of
the applicants. In her affidavit
she admits receiving instructions
from the first respondent to register a First Mortgage Bond in the
sum of R96 000-00 against the
property granted to the first
applicant. Zimmerman further avers that, after ascertaining that a
right of
habitatio
was preferred in favour of the applicants,
she drew a Power of Attorney to waive the aforesaid
habitatio
in favour of the first respondent. Furthermore she alleges that she
explained the nature and contents of such Power of Attorney
to the
applicants as follows:
“
I
fully and in detail explained the contents and nature of the
aforesaid Power of Attorney and waiver of habitation to Jonas Daniel
Charles De Bruyn and Margaret Maria De Bruyn and also requested that
they read the Power of Attorney before signing same. They duly
read
the Power of Attorney and after assuring myself that Jonas Daniel
Charles De Bruyn and Margaret Maria De Bruyn were fully aware
of the
contents and nature of the said Power of Attorney, I obtained their
signatures thereto.”
[13] The applicants and
the fifth respondent appended their signatures on the document, but
protest in these proceedings that they
were not aware that by signing
the document, which was, according to them, never explained, they
waived their right of
habitatio
.
[14] One
finds the above averments by the applicants difficult to accept for
the following reasons. Firstly, the right of
habitatio
is inextricably linked to the continued payment of the bond by the
fifth respondent to the first respondent. The applicants’ right
to
occupation depends on the repayment of the secured loan. Without
such repayment they are not entitled to occupy the property
against
the right of the first respondent. It is inconceivable that the
applicants would have an enforceable right against the
fifth
respondent in the circumstances of this case. Secondly, the evidence
points towards a probability that the applicants and
the fifth
respondent were aware that they were waiving their right of
habitatio
.
For example, as previous bond holders, one would expect them to have
knowledge of signing documents pertaining to a mortgage bond.

Furthermore, according to the mortgage bond contract, the
domicilium
citandi et executandi
is
the physical address of the mortgaged property. Accordingly,
whatever process was executed during the commencement of the
proceedings
must have been served on the occupiers, i.e. the
applicants, of the property, and yet it took the execution of the
property for them
to come up with this defence. Applying the
caveat
subscriptor
substantive
rule of evidence, it stands to reason that the conduct of the
applicants, in signing the document presented to them by
Zimmerman,
gives support to the probability that they were aware of its contents
and understood it. (See
Glen Comeragh (Pty) Ltd v Colibri
(Pty) Ltd
1979 (3) SA 210.)
[15] Thirdly,
the applicants have no
defence
to the first
respondent’s
monetary claims. Although a judgment
ad
pecuniam solvendam
is an
indispensable prerequisite for the issuing of a writ of execution,
relief declaring immovable property executable is not a
claim of any
kind, but merely a request for a direction with regard to the
execution of a judgment, it is ancillary thereto and a
matter of
procedure. It does not constitute the exercise of any jurisdiction
over the immovable property by the Court. (See
Ivoral
Properties (Pty) Limited v Sheriff Cape Town & Others
2005(6) SA 96(C) at 113H-114C.)
[16] In the Notice of
Motion the applicants have set out that the first respondent has
infringed their constitutionally protected
right to adequate housing,
but have not shown in the founding affidavit how the order of
execution would infringe their right to
same. (See
Standard Bank
of SA Ltd v Saunderson & Others
,
2006 (2) SA 264.)
Conclusion
[17] For the reasons
stated above, it is my judgment that the applicants have not
satisfied the requirement of establishing a
prima facie
right.
[18] Accordingly, in the
circumstances, the application is dismissed with costs.
___________________
NDITA, J