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[2024] ZAECMKHC 58
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N.B v A.B and Another (3305/2023) [2024] ZAECMKHC 58 (31 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO: 3305/2023
In
the matter between:
N[…]
S[…] B[….]
Applicant
and
A[…]
F[…] B[…]
First
Respondent
SA
HOME LOANS (PTY) LTD
Second
Respondent
JUDGMENT
PAKATI
J
Introduction
[1]
The applicant
applies for an order declaring the immovable property, described as
Erf 6[…], in extent 1228 square metres
held by deed of
transfer T665[…], situated at 4 A[…] Street, Makhanda,
Eastern Cape Province (“the property”),
owned by the
first respondent, to be specially executable in terms of Rule 46A of
the Uniform Rules of Court. She further seeks
an order in terms of
which the registrar is authorised and directed to issue a writ of
execution against the immovable property
and that a reasonable
reserve price be set in terms of Rule 46A. The first respondent
opposed the application.
The
parties
[2]
The applicant,
Ms N[…] S[…] B[…], is employed by the National
Prosecuting Authority (“NPA”) as
the Assistant Director
(Demand and Acquisition Supply Chain) in Silverton, Pretoria.
[3]
The first
respondent, Mr A[…] F[…] B[…], is an attorney
and associate at M[…] Attorneys, residing in
the property. The
second respondent is SA Home Loans (Pty) Ltd, a private company with
its registered address at 2 M[…]
C[…], Milkwood Park,
Umhlanga, Kwa-Zulu Natal Province. It is also the bondholder of the
property which the applicant wishes
the court to declare executable.
The issue
[4]
The issue is whether the applicant has made out a case for the order
of executability of the immovable
property which used to be the
common home of the applicant and the first respondent before they
divorced in 2016.
Common cause facts
[5]
It is common cause that the first respondent is indebted to the
applicant in respect of unpaid legal
costs in the sum of R829 654-97
granted against him when he and the applicant were involved in
litigation pertaining to this matter.
The first respondent confirmed
that the property has been the subject of litigation in this Court,
the SCA and the Constitutional
Court.
Undisputed facts
[6]
It is undisputed that the first respondent has failed to settle the
liabilities in respect of the property
within 24 months of granting
the divorce. On the date the founding affidavit was deposed, the
outstanding bond amount in respect
of the property was R2 441-99.
This can be gleaned from the second respondent’s letter
addressed to the applicant dated 06
July 2023, which records:
“
The
debit order due on 2023/07/03 in the amount of R975.38 in respect of
your home loan held under SA Home Loans account number
2364241 was
returned unpaid. Due to this unpaid debit, your loan account is now
in arrears for the sum of R2441.99.”
Background facts
[7]
The applicant and the first respondent were co-owners of the
property. They entered into a settlement
agreement which was made an
order of court on 12 July 2016, after a lengthy and acrimonious
divorce. In terms of paragraph 5 of
the said settlement agreement,
the first respondent undertook full responsibility for settling the
liabilities in respect of the
property within 24 months of granting
of the divorce order as follows:
“
5.1
It is expressly recorded that the Plaintiff will
undertake full responsibility for the settling of the liabilities,
if
any, currently existing on the following immovable properties:
5.1.1
the common home being 4 A[…] Street, Grahamstown, and
5.1.2
the undeveloped properties identified as Erven 30, 40, 41, 42, 43,
44, and 45, East London, and owned by
Tradesoon 27 (Pty) Ltd.
5.2
the Plaintiff will, in accordance with the provisions of Section
45bis of the Deeds Registries
Act, Act 47 of 1937, and within 24
months of the date of the issuing of the Decree of Divorce arrange
for the substitution of the
Defendant as debtor.
5.3
Upon the settling of such liabilities the Defendant undertakes to
ensure transfer to any
and all property rights she may have in the
properties into the name of the Plaintiff, or any entity nominated by
him for that
purpose, at which stage the properties will become his
exclusively. The cost of such transfer(s) will be borne by the
Plaintiff.”
[8]
However, the first respondent failed to comply with paragraph 5 of
the settlement agreement and did
not substitute the applicant as a
co-debtor under the bond. He failed to settle the liabilities in
respect of the property. At
the time the applicant and first
respondent got divorced, the bond on the property was approximately
R700 000-00. This resulted
in the applicant being repeatedly faced
with threats of legal action by the second respondent as the joint
bond holder via letters
and persistent telephone calls informing her
that the first respondent did not pay the monthly bond instalments.
The failure of
the first respondent to comply with his obligations
led the applicant to launch various applications as well as having
him found
to be in contempt of court as it appears in the order
granted by Mfenyana AJ, on 15 January 2020. The said order reads:
“
It
is ordered:
1.
THAT the Respondent be and hereby held in
contempt of the order issued on [12] July 2016.
2.
THAT the Respondent be and is hereby
directed to comply with paragraph 5 of the order within and
substituted the Applicant within
90 days of this order.
3.
THAT the Respondent is sentenced to six
months imprisonment wholly suspended for a period of two years on
condition that he complies
with paragraph (2) of this order.
4.
THAT in the event that the Respondent fails
to comply with this order the Applicant be and hereby authorized to
approach the Court
on the same papers, duly amplified calling upon
the Respondent to show cause why he should not be committed to prison
5.
THAT paragraphs 13-52 of the
Respondent’s answering affidavit be and is hereby struck out.
6.
THAT the counter-application by the
Respondent be and is hereby dismissed with costs, which costs shall
include costs of two counsel.
7.
THAT the Respondent be and is hereby
directed to pay the costs of this application on attorney and client
scale, which costs shall
include the costs of two counsel.”
[9]
The costs referred to above were taxed and allocated on 23 June 2021,
in the sum of R215 404.49. The
litigation against the first
respondent resulted in substantial amounts in costs granted against
him.
[10] The
first respondent brought an urgent application to stay the execution
of a writ issued relating to the costs
mentioned above but was
dismissed. He was ordered to pay the costs of this application
including costs of two counsel which were
taxed and allocated on 12
December 2022, in the amount of R153 913-19. The second application
to stay execution was withdrawn and
he was ordered to pay costs on
party and party scale. These costs were taxed and allocated on 12
December 2022, in the sum of R227
476-37.
[11] On 08
July 2021, the sheriff proceeded to No. 1[…] H[…]
Street, Makhanda, the first respondent’s
place of employment
and served him with the writ of execution, personally. Thereafter, he
attached the first respondent’s
office equipment and a VW
Tiguan motor vehicle with registration number J[…]. At that
instance, the first respondent alleged
that he did not own the office
equipment and that the motor vehicle was the bank’s property.
[12] On 03
August 2021, the first respondent was granted condonation by the
Supreme Court of Appeal but his application
for reconsideration for
leave to appeal was dismissed with costs. The said costs were taxed
and allocated on 18 May 2022, in the
sum of R108 313-53.
[13] On 05
August 2021, the writ of execution was re-issued, and the sheriff was
directed by the applicant’s attorney
of record to take into
execution the first respondent’s movable assets found in the
property. The first respondent applied
for the stay of the writ of
execution pending an application for leave to appeal against the
contempt of court decision which was
refused by the Constitutional
Court on 13 October 2021. The first respondent withdrew his
application for the stay of the execution.
[14] The
applicant is unaware of the status of the taxed bill of costs in
respect of the application for leave to appeal.
Considering the costs
granted against the first respondent in the above matters, he is to
date indebted to the applicant in the
amount of R829 654-97. He has
paid nothing to date. The sheriff attempted to attach the movable
property regarding the first costs
order in the amount of R215
404-49.
[15] On 02
December 2021, the sheriff removed the first respondent’s motor
vehicle which was later released as
it was still the bank’s
property. The second return of service which was also served on the
first respondent personally,
returned with a
nulla bona
return
in respect of the movables. A further writ was issued on 03 December
2021, directing the sheriff to attach and take into
execution the
incorporeal property being the right, title, and interest of the
first respondent’s shares in Billegro Legal
Cost Consultants
(Pty) Ltd, a private company with its registered address at 53
African Street, Makhanda. However, on 10 December
2021, the
applicant’s attorney of record was informed that no share
certificate in respect of the company could be found,
and the sheriff
was unable to effect service. Seeing that no movable property in the
name of the first respondent could be attached
by the sheriff, the
applicant instructed her attorney to launch an application to have
his immovable property declared executable.
The first respondent
opposed that application. Norman J dismissed the said application
because the applicant did not first excuss
the first respondent’s
movable property.
[16]
On 22 September 2022, the sheriff executed a
further writ at the home of the first respondent and attached his
movables. A sale
in execution was arranged to take place on 03
February 2023 but did not take place because the items could not be
removed from
the first respondent’s home as he was unavailable.
Subsequently, the sale was arranged to take place on 05 May 2023, and
the first respondent was duly notified. The notice was placed in the
Herald Newspaper, on the notice board in the magistrate’s
court
and High Court and the first respondent was served with same. The
sale generated an amount of R3 310-00 with the sheriff’s
fees
totalling an amount of R899-00. The applicant argues that she has
attempted on various occasions to have the first respondent’s
movable property attached. Obviously, the sale of the movables would
not cover the outstanding debt and interest owed, the argument
continues. The applicant urged the Court to set a reserve price of
R550 000-00 which in her opinion, is reasonable.
The first respondent’s
case
[17] The
first respondent raised two points
in
limine
namely,
non-joinder of parties affected by the relief sought by the applicant
and
res judicata
. For this assertion, he relied on Rule 46A
(3) (b) which provides:
“
(3)
Every notice of application to declare residential immovable property
executable shall be-
(a)…
(b) on notice to the
judgment debtor and to any other party who may be affected by the
sale in execution, including the entities
referred to in rule 46(5)
(a): Provided that the court may order service on any other party it
considers necessary.”
[18]
The first respondent contends that the applicant should also give
notice to preferent creditors and local authority
if the property is
rated provided that the court may order service on any other party it
considers necessary. The applicant, as
the party to the litigation,
should also join other parties who have a direct and substantial
interest in the outcome of the litigation.
For the above assertion,
he relies on
Motloung
and Another v The Sheriff, Pretoria East, and Others
[1]
.
Mr Brown, for the applicant, submitted that it was not necessary to
join and serve the municipality and Ms fani.
[19]
Though the subrule may be peremptory as regards the preferent
creditor, local authority and body corporate, and
failure to comply
with its provisions may render a sale invalid, this does not entitle
a judgment debtor for whose benefit the
rule was not made, to rely on
such non-compliance.
[2]
[20]
Regarding
res judicata
, the first respondent submitted that
this is not the first application for leave to execute against the
property. The same application,
between the same parties, concerning
the same cause of action and seeking the same relief, was dismissed
by Norman J on 25 October
2022. He submits further that ‘
the
lis between the parties has been disposed of and the matter is res
judicata
.’ He requests that leave to execute the property
be dismissed with costs.
[21]
The submission by the first respondent regarding
res
judicata
ignores to state the reason
why Norman J dismissed the application relying on
Barclays
Nasionale Bank Bpk v Badenhorst
1973 (1) SA 333
(N)
.
In paragraph 40 of her judgment, Norman J stated:
“
[40]
It follows that where the creditor has not excussed against movables
it cannot succeed in the relief sought against the immovable
property.”
[22] In the
present case, the applicant has excussed against the movable
property. Therefore,
res judicata
cannot stand.
[23]
Reverting to this application, the first respondent submits that the
release of the applicant from the bond obligations
in respect of the
immovable property is effectively moot. That is because, on 14 March
2022, he paid the last instalment of approximately
R547 000-00 due to
the bondholder and their attorneys have been instructed to cancel the
bond and effect the endorsement in terms
of Section 45
bis
(1) (b) of the
Deeds Registries Act 47 of 1937
[3]
.
The applicant therefore executes against his immovable property in
pursuance of costs orders obtained against him, as alluded
to.
[24]
The first respondent contends that a possibility exists that through
mediation in terms of Rule 41A of the Uniform
Rules of Court
[4]
,
the dispute between the parties might be resolved. That is because
the applicant communicated with him
via
WhatsApp messages wherein, she requested him to assist her with an
issue concerning one of their daughters. He states that during
this
conversation, the applicant expressed regret for the mistakes she
made in their relationship including the course of action
she
embarked upon. However, the applicant’s attorneys failed to
deliver a notice in terms of Rule 41A (2) (b)
[5]
.
The WhatsApp exchange records:
“
Applicant
Respondent
Translation by 1
st
respondent
Ek besef ek [het]
Mistakes gemaak het maar so het jy ook
I realise that I made
mistakes but so did you.
Ons groot
We are adults.
So los ons history en
help ons kinders om beter lewens te ly
So, leave our history
and help our kids to lead better lives.
Right, vertel my van
jou foute Want ten minste is dit die erkenning wat jy maak.
Right. Tell me of your
mistakes because it is at least the first because first
acknowledgement that you are making.
[Dis] al wat ek
vra.
It is all I ask.
.
Ja ek kan se wat my
Foute was maar jy [ook] mos foute
gemaak
Yes, I can say what my
mistakes were, but you also made mistakes.
[Ek] het baie.
I have many.
…
…
Ek weet dit
nou.
I know it now.
Maar hulle tel nou.
But they count now.”
[25] The
first respondent contends further that this conversation was ‘
a
genuine and contrite expression of regret for the mistakes that she
made in our relationship, not only personally but also, when
she
embarked on the litigation that she embarked on
.’ He states
that ‘
I have no doubt that the applicant and I will come to
a mutually acceptable resolution of the dispute after having engaged
in such
court annexed mediation process.
’ he contends
further that he intends to settle the legal costs in a matter of
months. However, he does not give details of
how he intends to
achieve this.
[26]
The first respondent states that there is no mention that he had paid
legal costs of an amount more than R120 000-00.
The applicant asserts
that the first respondent paid R130 791-47 on 20 July 2022 and made
no further payments. She adds that as
of 12 December 2022, the
outstanding balance was R803 317-58 excluding interest in the amount
of R90 373-22 which brings the total
amount to R893 690-80. He also
states that prior to the passing of his father, he was engaged in
finalising bills of costs for
work done on behalf of various clients
estimated at an amount of R2 million. These fees would exceed the
amount due to the applicant
by a substantial amount. The amount due
to the applicant could be paid in a matter of months. However, the
said process was interrupted
by the illness and subsequent passing of
his father. He does not disclose how this was going to be achievable
considering that
in
paragraph 1 of the answering affidavit, he is an associate at
Mgangatho Attorneys. If that is the case, it is unclear how such
fees
could accrue to him personally for services rendered and not the firm
of attorneys he works for. According to the applicant,
he is unable
to get a fidelity fund certificate in his own name. The first
respondent did not mention whether he had other creditors
except the
applicant.
[27] The
first respondent contends that the order should not be granted due to
‘
important policy and constitutional considerations
.’
He contends further that he stays with Ms B[…] F[…] and
her granddaughter, A[…] F[…]. Ms F[…]
was his
and the applicant’s babysitter while their children were
growing up and has been with them for 25 years. He says:
“
38.1
She has basically dedicated her entire adult life raising the
now adult children of the applicant and I.
38.2
Ms F[...] has no home other than the property in question.
38.3
Ms F[…] will continue to be in my employment until her
retirement at the age of 60 years.”
[28] The
first respondent added that Ms F[…]’s granddaughter
attends preschool not far from the property
and will continue to do
so. He added: “
Ensuring that her granddaughter have a good
quality of life, and for Ms F[…] to spend with her
granddaughter is the proper
thing to do, after a life in service to
the children of the applicant and I.”
What is strange
though is that the first respondent did not attach Ms F[…]’s
confirmatory affidavit. Therefore, this
allegation remains hearsay.
Legal Authorities
[29] Rule 46A
(2) (b) provides:
“
2(b)
A court shall not authorise execution against immovable property
which is the primary residence of a judgment debtor unless
the court,
having considered all relevant factors, considers that execution
against such property is warranted.”
[30]
In
Jaftha
v Schoeman and Others, Van Rooyen v Stoltz and Others
[6]
the Court remarked:
“
[60]
In summing up, factors that a court might consider, but to which a
court is not limited, are: the circumstances in which the
debt was
incurred; any attempts made by the debtor to pay off the debt; the
financial situation of the parties; the amount of the
debt; whether
the debtor is employed or has a source of income to pay off the debt
and any other factor relevant to the particular
facts of the case
before the court.”
[31]
Rogers J in
Changing
Tides 17 (Pty) Ltd NO v Frasenburg
[7]
“
[51] In
making the rule 46A assessment, the prospect of the judgment debt
being satisfied without recourse to the mortgaged
property has to be
investigated. If a debtor is substantially in arrears and fails to
place information before court pointing to
the existence of other
assets from which the indebtedness might be satisfied, a court would
generally be justified in proceeding
on the basis that execution
against the mortgaged property is the only means of satisfying the
mortgagee’s claim.”
[32]
The first respondent has not provided information which would enable
this Court to assess the possibility of the
judgment debt being
satisfied from a source other than the sale of immovable property. He
has not set out facts relevant to his
ability to discharge the debt
and has failed to place information before court pointing to the
existence of other movable assets
from which the indebtedness might
be satisfied. What is common cause is that he is an attorney
practising in this court with considerable
experience and has the
insight of the consequences of failure to comply with court orders.
The judgment debt is a substantial amount
of money. However, he earns
a salary which would enable him to pay off the debt. He has not
disclosed his financial circumstances.
Furthermore, in his answering
affidavit, he did not disclose what attempts he made to pay off the
debt. The information that he
has provided does not show that he has
made any attempts to settle the debt. Instead, he repeatedly avoided
his obligations. His
attitude exhibits unwillingness on his part to
settle the debt and uses delaying tactics.
[33]
The applicant is employed by the NPA as an Assistant Director, as
alluded to . Undoubtedly, she has been prejudiced
by the conduct of
the first respondent regarding the legal expenses she had to incur to
obtain compliance by the first respondent
of his lawful obligations
arising from their divorce.
[34]
In
Nkola
v Argent Steel Group (Pty) Limited t/a Phoenix Steel
[8]
Lewis
JA (Saldulker and Swain JJA and Pillay and Makgoka AJJA concurring)
remarked:
“
[15]
…as a result of these decisions, is that in all cases where a
debtor’s home is in issue, a court must look at
the
circumstances of the debtor and exercise a discretion… The
proviso reflects the principle that a poor person who runs
the risk
of losing a home should not be placed in jeopardy without a proper
consideration of his or her circumstances.
[16]
In exercising her discretion in the court of first instance, Jacobs
AJ considered all Mr Nkola’s circumstances as set
out in his
answering affidavit… Mr Nkola, on his own account, is not the
kind of person who qualifies for the protection
required
by
Gundwana
.”
[35]
In her replying affidavit, the applicant did not consent to
mediation. She submits that the first respondent took
the WhatsApp
messages out of context. She explained that ‘
the context was
personal issues engaged in between the first respondent and I
regarding one of our daughters. Whatever may have
happened between
us, it is still necessary to engage with regards to our children
.’
She added that the mistakes she referred to were those relating to
parenting. Notably, the answering affidavit was filed
on 30 October
2023, and the notice in terms of Rule 41A in response to the first
respondent’s Rule 41A notice was filed on
01 November 2023, and
hand-delivered at the offices of the first respondent the same day at
14h17. That explains the reason why
the first respondent laboured
under the impression that no response was received from the
applicant’s attorneys.
[36]
The first respondent states that on 14 March 2022, he paid ‘
the
last of approximately R547 000-00 due to the bondholder and that
their attorneys have been instructed to cancel the bond and
effect
the endorsement in terms of
section 45bis
(1) (b) of the
Deeds
Registries Act, 1937
.’ He further states that the bond
obligation in respect of the immovable property is effectively moot
which is disputed by
the applicant. The letter from the second
respondent (“NB22”) clearly records that the loan account
is still in arrears,
as shown in paragraph 5 above. It therefore
cannot be correct that the first respondent had instructed the second
respondent to
cancel the bond because the loan account is still in
arrears. He was not candid with the court in this regard.
[37]
The first respondent acknowledges that the bills that have been taxed
have to be paid. To explain the failure to
pay these bills, he
asserts that he had been engaged in finalizing the bill of costs for
work done on behalf of various clients
of his estimated value of more
than R2 million. This creates an impression that the whole amount
would be available for payment
of what he owes to the applicant and
yet up to the time the matter was heard, he led no evidence that he
was owed an amount of
R2 million.
[38]
The applicant asserts that the market value of the property is R825
000-00, according to IPC Properties and the
municipal value, is R1
502 900-00. She asserts further that a reasonable reserve price for
the immovable property is R550 000-00.
The first respondent proposes
a reserve price of R1.2 million which, according to him, is
reasonable considering that the evaluation
of a similar-sized
property close to where his property is, is R1.6 million. He requests
that the matter be postponed
sine die
pending finalisation of
Rule 41A
, the mediation process.
[39]
In terms of
Rule 46A
(8) (e) operating since December 2017, the court
is empowered to set a reserve price for the property at the sale in
execution.
In determining such reserve price, I consider the facts of
the applicant and the first respondent. In my view, a reserve price
of R650 000-00 is reasonable in the circumstances of this case.
[40]
Regarding Ms F[…] and her granddaughter, the first respondent
is employed as an attorney and can pay rent
as alternative
accommodation for himself, Ms F[…] and her granddaughter
especially since he still needs to keep them.
[41]
The first respondent has blatantly avoided making good his
obligations towards the applicant. His conduct of avoiding
the sale
is consistent with the obstructive and vexatious conduct throughout
the litigation of this matter.
[42]
The first respondent has failed to comply with what he agreed to do
and consented that it be made an order of court.
He frustrated the
sheriff when attempting to execute in respect of the movable
property.
[43]
In considering the circumstances of the first respondent, I restate
that he is an experienced lawyer who has been
practising for a
considerable period in this court. He admitted his indebtedness to
the applicant, notwithstanding his knowledge
of the law and ethical
obligations as an officer of the court. He has done nothing but delay
and undermine the discharging of the
debt. In a judgment by Jolwana J
where the applicant sought an order to commit him to prison for his
failure to comply with the
court order of Mfenyana AJ dated 15
January 2020, he had this to say:
[9]
“
[5]
The respondent had by then exhausted all possible avenues within the
South African legal framework which he invoked in order
to avoid
having to purge his contempt of the court order of Kahla AJ dating
back as far as 12 July 2016. Most importantly, he made
all the
unmeritorious and dilatory applications for leave to appeal in order
to avoid being compelled to do that which he personally
undertook to
do in terms of the deed of settlement. He had ample opportunity to
purge his contempt but failed to do so.”
[44]
In casu
,
the first respondent
is not a poor person who runs the risk of losing a home. He is an
officer of the court, as alluded to. Notably,
he has been found
guilty of contempt of the court. In my view, having considered the
circumstances of the first respondent. e
xecution
against the mortgaged property is the only means of satisfying the
judgment debt.
[45]
The applicant had no option but to approach the court for relief as
set out in the notice of motion.
In
the circumstances of this case, the applicant has made out a case for
the order sought and it is just and equitable to grant
the execution
against the immovable property. The first respondent is not the kind
of person who qualifies for protection. The
matter can therefore not
be postponed sine die pending finalisation as the applicant opposes
referral of the dispute to mediation.
Costs
[46]
The outstanding issue is costs.
It
is a fundamental principle that a party who succeeds should be
awarded costs and this rule should not be departed from except
on
good grounds.
[10]
The award of costs is a matter wholly within the discretion of the
court, but this is a judicial discretion and must be exercised
on
grounds upon which a reasonable person could have concluded.
[11]
In this instance, there is no reason why the first respondent should
not be ordered to pay costs of this application. In my view,
a costs
order on a scale as between attorney and client is justified in the
circumstances.
Reserved
costs of 03 October 2023
[47]
Mr Brown submitted that the order granted on the day, was by
agreement between the parties and those were costs
in the cause. The
first respondent should therefore be liable for those costs. That is
because the applicant was in motion court
and the matter was
postponed because it was opposed. On the other hand, the first
respondent argued that on Thursday 28 September
2023, the applicant
sought to enrol the matter on uncontested roll and yet on 29
September 2023 was the last day for him to file
a notice to oppose
rendering the setting down of the matter premature. He argued further
that the costs were unnecessary as he
still had an opportunity to
file the notice to oppose.
[48]
The application in this matter was filed and served on the first
respondent on 14 September 2023, at 12h08. He
had ten days after the
date of service of the application to notify the applicant’s
attorneys if he intended to oppose it
on 29 September 2023. However,
on 28 September 2023, the attorneys of record of the applicant filed
and served on the respondent
a ‘
notice
of set down uncontested opposed
’
in terms of
Rule 15(k)
of the joint Rules of Practice for hearing on
03 October 2023. On 29 September 2023, the respondent filed and
served on the applicant
a notice of irregular proceedings in terms of
Rule 30
, notifying the applicant that he would apply for the matter
to be struck from the uncontested unopposed roll and that the
applicant’s
attorneys would be ordered to pay costs occasioned
therewith on a scale as ‘
between
attorney and client, and de bonis propriis
.’
[49]
In my view, the notice of set down of the uncontested application was
served prematurely. Clearly, the applicant’s
attorneys were
informed of this by the first respondent when he served and filed the
notice in terms of
Rule 30
on 29 September 2023. Mr Brown confirmed
that the matter was set down on the day when dies were expiring. In
my view, the costs
of 03 October 2023 should be paid by the applicant
and cannot be costs in the cause, as the applicant alleges.
Order
In
the circumstances, I issue the following order:
1.
The
immovable property described as Erf 6[…], Makhanda, Eastern
Cape Province in extent: 1228 square metres held by deed
of transfer
T6[…], is declared specially executable and to this end, the
registrar is authorized and directed to issue a
writ of execution
against the said immovable property in terms of Rule 46 (1) (a) of
the Uniform Rules of Court.
2.
A
reasonable reserve price is set at R 650 000-00 in terms of Rule 46A
of the Uniform Rules of Court.
3.
The first respondent is ordered to pay
costs of this application on attorney and client scale.
4.
The applicant is ordered to pay the reserved costs of 03 October 2023
on a scale as between
party and party.
BM
PAKATI
JUDGE
OF THE HIGH COURT, EASTERN CAPE DIVISION, GQEBERHA
APPEARANCES:
Counsel
for the Appellant
:
Adv
G Brown
Instructed
by
:
Wheeldon
Rushmere & Cle Inc
For
the Respondent
:
Mr Ashley
Franchwa Basson
Heard
on
:
15 February 2024
Judgment
Delivered on
: 31 May 2024
[1]
2020
(5) SA 123
(SCA) at para 11 where the court held: “The rule
says that the ‘summons shall be signed and issued by the
registrar’.
The word ‘shall’ does not necessarily
denote a peremptory provision.”
[2]
Erasmus:
Superior
Court Practice Vol 2 at page D1-615.
[3]
Section
45
bis
(1) (b) of the
Deeds Registries Act 47 of 1937
, provides:
“
45
bis
Endorsement of
deeds on divorce, division of joint estate, or change of matrimonial
property system
(1)
If immovable
property or a lease under any law relating to land settlement or a
bond is registered in a deeds registry and it-
(a)
…
(b)
forms
or formed an asset in a joint estate, and a court has made an order,
or has made an order and given an authorization, under
section 20 or
21 (1) of the Matrimonial Property Act, 1984 (
Act
88 of 1984
),
or under
section 7
of the
Recognition of Customary Marriages Act,
1998
, as the case may be, in terms of which the property, lease or
bond is awarded to one of the spouses, the registrar may, on written
application by the spouse concerned and accompanied by such
documents as the registrar deems necessary, endorse on the title
deeds of the property or on the lease or the bond that such spouse
is entitled to deal with such property, lease or bond, and
thereupon
such spouse shall be entitled to deal therewith as if he or she had
taken formal transfer or cession into his or her
name of the share
of the former spouse or his or her spouse, as the case may be, in
the property, lease or bond.
[4]
Rule
41A (1) of the Uniform Rules of Court states: (1) In this rule
-mediation means a voluntary process entered into by agreement
between the parties to a dispute, in which an impartial and
independent person, the mediator, assists the parties to either
resolve the dispute between them, or identify issues upon which
agreement can be reached, or explore areas of compromise, or
generate options to resolve the dispute, or clarify priorities, by
facilitating discussions between the parties and assisting
them in
their negotiations to resolve the dispute.”
[5]
Rule
41A (2) (b) provides: A defendant or respondent shall, when
delivering a notice of intention to defend or a notice of intention
to oppose, or at any time thereafter, but not later than the
delivery of a plea or answering affidavit, serve on each plaintiff
or applicant or the plaintiff’s or applicant’s
attorneys, a notice indicating whether such defendant or respondent
agrees to or opposes referral of the dispute to mediation.”
[6]
(CCT74/03)
[2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8
October 2004) in para 60. See also
Gundwana
v Steko Development CC and Others
(CCT
44/10) [2011] ZACC 14; 2011 (3) SA 608 (CC); 2011 (8) BCLR 792 (CC)
(11 April 2011) at para 54, where the Court held: “
It
is only when there is disproportionality between the means used in
the execution process to exact payment of the judgment debt,
compared to other available means to attain the same purpose, that
alarm bells should start ringing. If there are no other
proportionate means to attain the same end, execution may not be
avoided.”
[7]
(19353/2019)
[2020] ZAWCHC 59; [2020] 4 All SA 87 (WCC) (2 July 2020) at para 51.
[8]
(406/2017)
[2018] ZASCA 29
;
2019 (2) SA 216
(SCA) (26 March 2018) at para 15
and 16.
[9]
At
para 5.
[10]
South
African Association of Personal Injury Lawyers v Heath
[2000] ZACC 22
;
2001 (1) SA
883
(CC) at 912.
[11]
Beinash
v Wixley
[1997] ZASCA 32
;
[1997] 2 All SA 241
;
1997 (3) SA 721
(A).