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[2005] ZAGPPHC 85
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Nedbank Limited v Mortinson (4183/05) [2005] ZAGPPHC 85 (23 October 2005)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND
LOCAL DIVISION)
CASE
NO: 4183/05
DATE:
23 AUGUST 2005
In
the matter between:
NEDBANK
LIMITED
.................................................................................................................
Plaintiff
And
MORTINSON,
DEBBIE-ANN
................................................................................................
Defendant
J
U D G M E N T
JOFFE,
J:
[1]
The plaintiff instituted action against
the defendant. Its cause of action was monies lent and advanced by it
to the defendant.
The loan was secured by a first mortgage bond
registered over certain immovable property owned by the defendant.
The plaintiff
claims payment of the sum of R422 817
, 21
being the balance of the monies due and owing together with ancillary
relief. In addition the plaintiff sought an order declaring
the
hypothecated property executable.
[2]
Summons was served in terms of the
Uniform Rules of Court (“the Rules”) at the defendant’s
chosen domicilium citandi
et executandi, by fixing a copy thereof to
the “principal front gate” of the hypothecated property.
The defendant failed
to enter appearance to defend. The plaintiff, as
it was entitled and obliged to do if it wished to exercise that
entitlement, applied
pursuant to Rule 31(5) of the Rules to the
Registrar for default judgment.
[3]
The Registrar was aware of the decision
of the Constitutional Court in Jaftha v Schoeman and Others; Van
Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2) SA 140
(CC) (“the Jaftha
judgment’). As a result thereof he doubted his competence to
declare the hypothecated property executable.
He accordingly acted in
terms of Rule 31(5)(b)(vi) of the Rules and required that the matter
be set down for hearing in open court.
[4]
The matter came to the attention of the
Deputy Judge President of this Division. He determined and directed
in terms of section
13(1)(a) of the Supreme Court Act, 59 of 1959,
that a full court of this Division hear the matter. Four questions
were formulated
for determination. They were:
“
1
.
Whether the Constitutional Court judgment in Maggie Jaftha v Schoeman
and Others is applicable to applications for default judgments
in
terms of Rule 31 (5)(a) of the Uniform Rules of the High Court in
circumstances where the defendant has specially hypothecated
immovable property as security for the debt and the plaintiff seeks
default judgment against the defendant as well as an order
to have
the immovable property declared executable?
2.
If the judgment is applicable, can such
application for default judgment be heard by a judge in chambers or
must it be heard in
open court?
3.
If such application can be heard in
chambers what is the effect, if any, of the Transvaal Rule 3(2)?
4.
Does the judgment in Maggie v Jaftha and
Others apply to Rule 45(1) of the Rules of this court and if it does,
how is that Rule
to be applied?”
This
judgment deals with these issues.
[5]
At the hearing Mr Lamont SC represented
the plaintiff. Mr Farber SC together with Mr Sawma, appeared as amici
curiae. At the outset
appreciation is expressed to all the counsel
who appeared, and in particular, the amici curiae for their
assistance.
[6]
It is necessary to consider the Jaftha
judgment in some detail and to place it in its correct perspective.
The facts relevant to
the judgment are these:
•
Section
26 of the Constitution of the Republic of South Africa, 108 of 1996
(“the Constitution”) provides as follows:
“
26
Housing
(1)
Everyone has the right to have
access to adequate housing.
(2)
The state must take reasonable
legislative and other measures, within its available resources, to
achieve the progressive realisation
of this right.
(3)
No one may be evicted from their
home, or have their home demolished, without an order of court made
after considering all the relevant
circumstances. No legislation may
permit arbitrary evictions.”
•
Jaftha
and Van Rooyen had incurred debts in small amounts. In Jaftha’s
case the original debt amounted to R250,00. In Van Rooyen’s
case the original debt amounted to R190,00.
•
Neither
Jaftha nor Van Rooyen were able to pay their debts. Action was
instituted against them in the Magistrates’ Court and
default
judgment was granted against them.
•
Both
Jaftha and Van Rooyen were the owners of homes in Prince Albert.
Their houses had been acquired with the assistance of State
housing
subsidies.
•
After
unsuccessfully levying execution against Jaftha’s and Van
Rooyen’s movable property their respective homes were
attached
and sold in execution pursuant to warrants of execution issued by the
Clerk of the relevant Magistrates’ Court acting
in terms of
section 66(1)(a) of the Magistrates’ Court Act No 32 of 1944
(“the Magistrates’ Court Act’).
•
By
virtue of their loss of ownership of their homes pursuant to the
sales in execution, Jaftha and Van Rooyen became disqualified
from
obtaining other State owned housing. No suitable alternative
accommodation was available to them.
[7]
This factual matrix served as the
backdrop of the Constitutional Court’s consideration of the
constitutional validity of section
66(1 )(a) of the Magistrates’
Court Act. The section reads as follows:
“
Whenever
a court gives judgment for the payment of money or makes an order for
the payment of money in instalments, such judgment,
in case of
failure to pay such money forthwith, or such order in case of failure
to pay any instalment at the time and in the manner
ordered by the
court, shall be enforceable by execution against the movable property
and, if there is not found sufficient movable
property to satisfy the
judgment or order, or the court, on good cause shown, so orders, then
against the immovable property of
the party against whom such
judgment has been given or such order has been made.”
[8]
The Constitutional Court held that
section 66(1 )(a) of the Magistrates’ Court Act could not pass
constitutional muster. It
held that section 26 of the Constitution
enjoins the State to “strive to provide access to adequate
housing for all and,
where that exists, to refrain from permitting
people to be removed (therefrom) unless it can be justified”
(para 29). The
section establishes a socioeconomic right which
embodies a negative obligation not to prevent or impair existing
access to
adequate housing, which negative obligation applies to
everyone, including private persons (para 31 and para 33). Any
measure which
permits a person to be deprived of adequate access to
existing housing limits the right protected in section 26(1) of the
Constitution
(para 34). Although section 36(
1) (
b)
of the Constitution may afford a justification for such limitation,
much will turn on the facts of the individual case under
consideration and whether, based thereon, sales in execution are
justified. Section 66(1
) (
a) of the
Magistrates’ Court Act was sufficiently broad to allow sales in
execution to occur without judicial intervention
and even where they
were unjustifiable. To that end, the scheme for sales in execution
created under section 66(
1) (
a) was
overbroad, in that it, without any form of judicial scrutiny, allowed
for sales in execution to occur in circumstances where
debtors’
rights had been unjustifiably violated. Given the trifling nature of
the indebtedness of Jaftha and Van Rooyen and
their irretrievable
loss in consequence of the prohibition against them acquiring
alternative housing through State subsidization,
the court held that
the sales in execution were not justifiable (para 40). The
appropriate remedy lay in the provision of judicial
oversight over
the execution process - in short, it was only the court which was
entitled to order execution against immovable
property, and only if
the circumstances of the case rendered it appropriate to do so.
[9]
To redress the situation the
Constitutional Court determined that section 66(1)(a) of the
Magistrates’ Court Act had to be
recast in the following terms
(para 64):
“
Whenever
a court gives judgment for the payment of money or makes an order for
the payment of money in instalments, such judgment,
in case of
failure to pay such money forthwith, or such order in case of failure
to pay any instalment at the time and in the manner
ordered by the
court, shall be enforceable by execution against the movable property
and, if there is not found sufficient movable
property to satisfy the
judgment or order, or the court, on good cause shown, so orders, then
a court, after consideration of all
relevant circumstances, may order
execution against the immovable property of the party against whom
such judgment has been given
or such order has been made.”
[10]
In coming to the aforesaid conclusion
the Constitutional Court was aware of and considered the provisions
of sections 62 and 73
of the Magistrates’ Court Act. The former
section allows a court to set aside or stay a warrant of execution
that had been
issued on good cause shown. The debtor is obliged to
approach the court and show good cause why the warrant ought to be
set aside.
The Constitutional Court held that “many debtors in
the position of the appellants are unaware of the protection offered
by this section. Even where there is awareness, it would generally be
difficult for indigent people in the position of the appellants
to
approach a court to claim protection. They are a vulnerable group
whose indigence and lack of knowledge prevents them from taking
steps
to stop the sales in execution ...” (para 47). As far as the
latter section is concerned the Constitutional Court held
that the
same difficulties that arise in regard to the former section applied
to the latter section (para 49). Accordingly neither
section could
save section 66(1 )(a) of the Magistrates’ Court Act from
unconstitutionality.
[11]
In considering some of the circumstances
that a court would consider in determining whether a warrant of
execution could be issued
in terms of section 66(1)(a) of the
Magistrates’ Court Act as recast by the Constitutional Court,
the Constitutional Court
held as follows (para 58):
“
Another
factor of great importance will be the circumstances in which the
debt arose. If the judgment debtor willingly put his or
her house up
in some or other manner as security for the debt, a sale in execution
should ordinarily be permitted where there has
not been an abuse of
court procedure. The need to ensure that homes may be used by people
to raise capital is an important aspect
of the value of a home which
courts must be careful to acknowledge.”
[12]
The origin and development of Rule 45(1)
of the Rules of Court and the practice of immovable property being
declared executable
must be considered. The commencement of this
history is set out in the full bench judgment in Gerber v Stolze and
Others
1951 (2) SA 166
(T) at 171H-172A.
[13]
The practice in the old Transvaal
Republic was that when a nulla bona return had been made in an
attempt to execute against movable
property it was usual to move the
court to have the immovable property declared executable. In 1902 the
High Court in the Transvaal
was established. Rule 67(a) regulated the
process of execution and, in its then form, it read as follows:
“
The
party in whose favour any final judgment of the Court has been
pronounced may, at his own risk, sue out of the office of the
Registrar one or more writs for execution thereof; provided that,
except where by judgment of the Court immovable property has
been
specially declared executable, no such process shall issue against
the immovable property of any person until any process
which may have
been issued against his movable property shall be first returned, and
the Court shall perceive thereby that the
said person had not
sufficient to satisfy the exigency thereof
[14]
In Re W J Jooste
1902 TS 245
, the Court
recognised the practice which had prevailed under the Republican
regime and resolved not to interfere with it. Curial
sanction was
thus required for the attachment of immovable property.
[15]
Despite this, and within a very short
period thereafter, the court in Harrison & Co v Reyneke
1903 TH
316
, declared that, in future, when a writ has been issued against
the movables of the defendant, and a return of nulla bona had been
made, the Registrar would have the authority and discretion, upon
being satisfied of these facts himself, to issue a writ against
the
immovable property, without an order of court declaring such property
executable.
[16]
On 27 November 1903
and pursuant to the promulgation of Government Notice 1376 of 1903,
Rule 67(a) was amended to provide for the
Registrar to sanction the
issue of the writ
“provided always
that it shall be competent for the Registrar whenever he thinks that
the circumstances of the case render
such a course desirable, to
refer any party to the Court for permission to issue a writ against
immovable property which has not
been specially declared executable”.
[17]
There were thus two recognised methods
of attachment of immovable property by writ. First, after a writ
against movables had been
issued and the Registrar determined that
the judgment had not been satisfied thereby. Second, where the court
declared the immovable
property executable and this would occur when
the property had been specifically hypothecated. The rationale for
this was set out
in Gerber at 172F-H in the following terms:
“
The
only reason for applying to Court at all is to have a short-cut in
the one case where a money judgment has been obtained and
the money
judgment is secured to the plaintiff by specially hypothecated
immovable property; then, in the normal course, the Court
is asked,
in advance, to dispense with the circumlocution of having to take
execution against the movable property first and only
on that
property failing to realise the money sum, then to have recourse
against the immovable property. When an order is granted
declaring
executable the property specially hypothecated, that order permits
the grantee, the creditor, to take his execution straightaway
against
the immovable property.”
[18]
The next development in this regard
occurred in 1991. Section 27(A) was inserted in the Supreme Court
Act, 59 of 1959 by section
5 of Act No. 4 of 1991 and substituted by
section 29 of Act No. 139 of 1992. It provided that the Registrar of
the Court could
in the manner and the circumstances prescribed in the
Rules grant a default judgment and such a default judgment would be
deemed
to be a judgment of the Court. Following hereon Rule 31(5) was
added to the Rules of Court by Government Notice R2365 of 10 January
1994 and amended by Government Notice 417 of 14 March 1997. It reads
as follows:
“
Rule
31(5)
(a)
Whenever a defendant is in default of
delivery of notice of intention to defend or of a plea, the
plaintiff, if he or she wishes
to obtain judgment by default, shall,
where each of the claims is for a debt or liquidated demand, file
with the registrar a written
application for judgment against such
defendant: Provided that when a defendant is in default of delivery
of a plea, the plaintiff
shall give such defendant not less than 5
days’ notice of his or her intention to apply for default
judgment.
(b)
The registrar may -
(i)
grant judgment as requested;
(ii)
grant judgment for part of the claim
only or on amended terms;
(iii)refuse
judgment wholly or in part;
(iv)
postpone the application for judgment on
such terms as he may consider just;
(v)
request or receive oral or written
submissions;
(vi)
require that the matter be set down for
hearing in open court.
(c)
The registrar shall record any judgment
granted or
direction
given by him.
(d)
Any party dissatisfied with a judgment
granted or direction given by the registrar may, within 20 days after
he has acquired knowledge
of such judgment or direction, set the
matter down for reconsideration by the court.
(e)
The registrar shall grant judgment for
costs in an amount of R200 plus the sheriff’s fees if the value
of the claim as stated
in the summons, apart from any consent to
jurisdiction, is within the jurisdiction of the magistrate’s
court and, in other
cases, unless the application for default
judgment requires costs to be taxed or the registrar requires a
decision on costs from
the Court, R650 plus the sheriff’s
fees.”
[19]
It is accepted that the prayer for a
declaration that immovable property be declared executable is a
“liquidated demand”
within the meaning of Rule 31(5)(a)
of the Rules of Court. See (by analogy) Erf 1382 Sunnyside (Edms) Bpk
v Die Chipi BK
1995 (3) SA 659
(T) at 661H-I and Entabeni Hospital
Ltd v Van der Linde; First National Bank SA Ltd v Puckriah
1994 (2)
SA 422
(N) at 424G-I.
[20]
In summary therefore at present Rule 45
of the Rules confers the competence on the Registrar of the Court to
issue a writ of execution
against the immovable property of the
debtor and section 27(A) of the Supreme Court Act read with Rule
31(5) of the Rules confers
the competence on the Registrar of the
Court to declare specifically hypothecated immovable property
executable.
[21]
Consideration
can now be given to the first question referred to in paragraph 4
supra. At the outset it must be emphasised that
the Jaftha judgment
did not deal with section 27(A) of the Supreme Court Act and Rule
31(5) of the Rules. It dealt, as appears
supra, with section 66(1)(a)
of the Magistrates’ Court Act. That section is analogous to
Rule 45(1) of the Rules of Court.
Accordingly the Jaftha judgment is
distinguishable. The ratio of the judgment is however of great
persuasive authority in any consideration
of the constitutionality of
section 27(A) of the Supreme Court Act and Rule 31(5) of the Rules.
It establishes the principle that
a scheme which permits of execution
against immovable property without judicial sanction is a limitation
of the rights contained
in section 26 of the Constitution.
[22]
It must be borne in mind that not all
immovable property specifically hypothecated as security in a loan
transaction is utilised
as residential property. Commercial property
is frequently hypothecated as security in loan transactions. In such
cases section
26 of the Constitution would not come into
consideration.
For
purposes of this judgment it will however be assumed that all
immovable property which the Registrar can potentially declare
executable is residential property. It will further be accepted that
such a declaration is a limitation of the rights protected
in section
26 of the Constitution.
[23]
What falls to be determined in terms of
section 36(1) of the Constitution is whether the limitation is
reasonable and justifiable
in an open and democratic society based on
human dignity, equality and freedom taking into account all relevant
factors, including
those referred to in section 36(1) of the
Constitution. In the Jaftha judgment the limitation was found not to
be reasonable and
justifiable.
[24]
Different to the considerations in the
Jaftha judgment, regard being had to the jurisdiction of the
Magistrates’ Court, most
applications for default judgment in
terms of Rule 31(5) of the Rules are for amounts in excess of, and in
many cases substantially
in excess of, R100 000,00. For reasons that
need not be considered some creditors however seek redress in the
High Court despite
the fact that the Magistrates’ Court has
jurisdiction for the amount claimed. These cases however constitute a
minority of
the applications in terms of Rule 31(5). The smaller the
amount claimed the greater the need for careful scrutiny and the more
compelling the reasoning in the Jaftha judgment that the limitation
is not reasonable and justifiable.
[25]
In every matter where the Registrar is
required to declare immovable property executable, the debtor has
participated in a commercial
transaction and has willingly utilised
his or her immovable property as security and thus put it at risk. It
has long been recognised
that the consequence of the debtor failing
to pay the debt is that the creditor is entitled to have the
hypothecated immovable
property sold in execution and to recover from
the proceeds of the sale the amount due. See Grotius 2.48.41 and
Roodepoort United
Main Reef GM. Co Ltd (in liquidation) and another v
Du Toit N.O.
1928 AD 66
at 71. It is for this reason that the Court
when granting judgment for the payment of the secured debt will
normally, if claimed
by the creditor, declare the hypothecated
immovable property specially executable (see Marsh v Makein
(1882) 2
SC 104
; Goldfields Building Finance and Trust Corporation Ltd v
Pienaar
1928 WLD 211
; and Wille’s Mortgage & Pledge 3
rd
Edition p 232. This was recognised in the Jaftha judgment where it
was held that a sale in execution should ordinarily be permitted
where the immovable property has been put up as security for the debt
and there has been no abuse of court procedure (see para
11 supra).
[26]
Furthermore, and different to the
Magistrates’ Court, Rule 31(5)(d) contains a valuable safeguard
to protect in particular
the debtor. It provides for the
reconsideration by the court of a judgment or direction given by the
Registrar within 20 days after
the party concerned has acquired
knowledge of such judgment or direction. This would obviously include
an order declaring specially
hypothecated immovable property
executable. Other than in the case of section 62 of the Magistrates’
Court Act the reconsideration
does not cast any onus on the debtor.
The court is required to consider the application for default
judgment de novo without any
onus on the debtor. Accordingly any
order made by the Registrar declaring immovable property executable
is open to reconsideration
by the court, if brought to the attention
of the court.
[27]
The question arises whether the debtor
would be aware of the provisions of Rule 31(5)(d) of the Rules.
Debtors who participate in
economic activity to the extent of
hypothecating immovable property would normally have access to legal
advice. However, in order
to provide for the eventuality that the
debtor is unaware of Rule 31(5)(d), a rule of practice could be
prescribed that the writ
of execution which is presented to the
Registrar for signature must contain a note advising the debtor of
the provisions of Rule
31(5)(d).
[28]
It appears that there are between 300
and 400 applications for default judgment where immovable property is
sought to be declared
executable in this Division each week. If these
applications were heard in open court and each application was
disposed of in five
minutes approximately 30 hours of court time
would be utilised per week. In effect one court would do nothing else
but hear these
applications. In the overwhelming majority of cases
the application for default judgment and the application for the
immovable
property to be declared executable would be a formality and
would not require judicial oversight. The dictum of the
Constitutional
Court referred to in para [11] supra, must also be
kept in mind. Where the judgment debtor willingly puts his or her
house as security
for a debt, a sale in execution should ordinarily
be permitted, absent an abuse of court procedure.
[29]
Another safeguard for the debtor is
contained in Rule 31(5)(b)(vi) of the Rules. The rule confers the
right on the Registrar to
refer an application for default judgment
for hearing in open court. In Standard Bank of SA Ltd v Ngobeni
1995
(3) SA 234
(VSC) the court held at 235C-E:
“
The
purpose of the amended Rule was clearly to relieve the burden resting
on the Judges of the Supreme Court by delegating to the
Registrar the
right (and duty) to grant or refuse judgment in uncomplicated default
matters where he simply checks that all administrative
and formal
steps have been taken to justify a judgment. He is not expected to
decide extraordinary or obscure points of law or
fact. The golden
rule is: If the Registrar has any legitimate doubt whether judgment
should be granted or not, it is his duty to
refer the matter for
hearing in terms of Rule 31(5)(b)(vi).”
The
dictum applies equally to orders declaring immovable property
executable.
[30]
Section 34 of the Supreme Court Act
provides for the appointment of Registrars and Assistant Registrars
by the Minister of Justice.
Clearly when making such appointments the
Minister will have due regard to the functions and duties which they
would have to perform.
These functions and duties would include
making orders of the kind under consideration in this judgment.
Accordingly it must be
expected that appropriate appointments have
and will be made of persons well able to perform this function. They
should be able
to discern abuses and either refuse the application to
declare the immovable property executable or to refer it to Court for
determination.
[31]
In an unreported judgment in the matter
of The Standard Bank of S A Limited v Elizabeth Snyders (Case No
10067/04) and eight other
matters which was delivered on 21 July
2005, it was accepted by Blignault J that the Jaftha judgment does
apply to applications
to have specially hypothecated immovable
property declared executable in terms of Rule 31(5). It was held that
only the Court and
not the Registrar would “have the power to
grant such an order”. No reasons were provided for this
conclusion (para
[7]). With respect the learned Judge’s
conclusion cannot be followed.
[32]
In the matter of
The
Standard Bank of SA Ltd v Snyders and Eight Others
it
was further held that the creditors
“summons
should contain a suitable allegation to the effect that the facts
alleged by it (which should be identified) are
sufficient to justify
an order in terms of section 26(3) of the Constitution”
(para 24). However earlier in the
judgment the learned Judge indicated that he was
“inclined
to agree with plaintiff’s counsel that the facts referred to in
the summons would probably, in the absence
of opposition, be
sufficient
...” (para 19) (for
the immovable property to be declared executable). On a reading of
the judgment these facts would be no
more than allegations relating
to the existence of the loan, that the full amount of the loan has
become repayable by virtue of
the debtor’s default and the loan
has been secured by immovable property which has been specially
hypothecated. These facts
are no different to the allegations
contained in any non-excipiable summons for this relief. As to the
reference to section 26(3)
of the Constitution it was held in
Fundstrust (Pty) Ltd (in Liquidation) v van Deventer
1997
(1) SA 710
(A) at 725H-I that a pleader need not refer in terms to a
statute upon which is relied. Accordingly the ruling in the above
case
should not be followed.
[33]
Regard being had to all of the
aforegoing it appears that where the debtor specifically hypothecated
his or her immovable property
and there is no abuse of the court
procedure, the limitation is reasonable and justifiable as
contemplated in section 36(1) of
the Constitution. What is required
are rules of practice to alert the Registrar and assist him or her in
determining abuses and
referring those applications for consideration
by the court. To this end the following rules of practice are laid
down in this
court:
33.1
In all applications for default judgment where the creditor seeks an
order declaring specially hypothecated immovable property
executable
the creditor shall aver in an affidavit filed simultaneously with the
application for default judgment:
33.1.1
The amount of the arrears outstanding as
at the date of the application for default judgment.
33.1.2
Whether the immovable property which it
is sought to have declared executable was acquired by means of or
with the assistance of
a State subsidy.
33.1.3
Whether to the knowledge of the creditor
the immovable property is occupied or not.
33.1.4
Whether the immovable property is
utilised for residential purposes or commercial purposes.
33.1.5
Whether the debt which is sought to be
enforced was incurred in order to acquire the immovable property
sought to be declared executable
or not.
33.2
All applications for default judgment
where the creditor seeks an order declaring specially hypothecated
immovable property executable
where the amount claimed falls within
the jurisdiction of the Magistrate’s Court shall be referred by
the Registrar for consideration
by the court in terms of Rule
31(5)(b)(vi).
[34]
A further rule of practice is laid down
that a warrant of execution which is presented to the Registrar for
issue, pursuant to an
order made by the Registrar declaring immovable
property executable, shall contain a note advising the debtor of the
provisions
of Rule 31(5)(d).
[35]
Turning to the second question it is
apparent that its ambit has been substantially limited by the
conclusion reached above. It
will only relate to those matters
referred to the court by the Registrar.
[36]
Section 16 of the Supreme Court Act 59
of 1959 reads as follows:
“
Save
as is otherwise provided in any law, all proceedings in any court of
a division shall, except in so far as any such court may
in special
cases otherwise direct, be carried on in open court.”
There
is no basis for exercising the discretion referred to in the section
in cases of default judgment. See generally Cerebos Food
Corporation
Ltd v Diverse Foods SA (Pty) Ltd and Another
1984 (4)
SA 149
(T) at 155B-I. The applications
must therefore be heard in open court.
Implicit
in the second question is that the Court has jurisdiction to hear the
matter. Nothing said in Erf 1382 Sunnyside (Edms)
Bpk v Die Chipi BK
(supra) indicates that the Court’s jurisdiction to hear default
judgment applications is in anyway impaired
by Rule 35(5).
Applications
for default judgment to the Registrar are however the preferred
route.
[37]
The third question raised falls away.
[38]
Finally the final question raised falls
to be considered. As far as Rule 45(1) relates to the issue of writs
after immovable property
has been declared executable by the
Registrar it need not be considered further. Clearly if the Registrar
has declared immovable
property executable the writ may be issued. As
far as Rule 45(1) of the Rules refers to the issue of a writ after an
attachment
of movables insufficient to satisfy the debt is concerned
it would appear that the Jaftha judgment is applicable and that there
is no basis on which that judgment can be distinguished.
[39]
To remedy the defect contained in Rule
45(1) of the Rules the rule is to be read as though the words “and
a court, after consideration
of all relevant circumstances, has
authorised execution against the immovable property’ were
inserted after the words “movable
property’ in the third
last line of the rule.
[40]
In view of this judgment the application
for default judgment is referred to the Registrar to be dealt with in
terms of Rule 31(5)
of the Rules of Court.
M MJOFFE
JUDGE OF THE
HIGH COURT
I
agree:
P M MOJAPELO
DEPUTY JUDGE
PRESIDENT
I
agree:
C J CLAASSEN
JUDGE OF THE
HIGH COURT
Date of
Hearing:
Date for
Judgment: 23 August 2005
Attorneys for
plaintiff: Hammod Pole & Dixon Inc.
Counsel
for Plaintiff Mr Lamont SC
Counsel
who appeared as AMICI CURIAE
Mr.
Farber SC Mr. Sawma