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[2024] ZAGPPHC 883
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ABSA Bank v Schuurman and Others (82184/16) [2024] ZAGPPHC 883 (13 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO.: 82184/16
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date:
13 September 2024
E
van der Schyff
In
the matter between:
ABSA
BANK
APPLICANT
and
A
W C SCHUURMAN
FIRST RESPONDENT
M
SCHUURMAN
SECOND RESPONDENT
B
SCHOEMAN
INTERESTED PARTY
M
N BRUMMER
INTERESTED PARTY
OTHER
OCCUPIERS
INTERESTED PARTY
JUDGMENT
Van
der Schyff J
Introduction
and background
[1]
This is an opposed application in terms of
Rules 46(1) and 46A of the Uniform Rules of Court. The applicant
seeks to have the respondents’
immovable property situated at
Erf 4[...] G[...] declared specially executable. The first and second
respondents, the opposing
respondents, act in person, despite having
been provided the opportunity to apply for
pro
bono
legal representation.
[2]
This matter has a protracted history.
Default judgment was granted in this matter on 5 December 2016. The
first rule 46(1) application
was brought in December 2016, but it was
opposed. In October 2017, the application was postponed to provide
the respondents with
an opportunity to obtain legal representation.
In December 2018, the application was postponed to join the tenants
occupying the
property. A joinder application was brought and an
order for joinder was granted in November 2019. In the same month,
the parties
entered into an agreement that the respondents would pay
R12 000.00 per month to settle the arrears. In September 2020, the
respondents
defaulted on the payment arrangement, and the applicant
elected to proceed with the application to have the bonded property
declared
executable.
[3]
Mr. Schuurman, the first respondent, filed
what he titled the ‘Defendant’s reply to the Plaintiff’s
statement
of the case’. This document is filed in answer to the
applicant’s founding affidavit and will be dealt with as if it
is an answering affidavit, although it is not signed or commissioned.
In this affidavit, Mr. Schuurman explains that he and the
second
respondent, his wife, is unemployed. He claims that it is not due to
any fault on his side that his employment was terminated
and that he
did not miss any payment on the house before then. He claims that he
applied for the ‘discontinuing of interest
during the beginning
of 2022’, and that the bank verbally agreed not to charge any
interest on his bond. The communication
with ABSA, which he attached
to his affidavit, indicates that ABSA informed Mr. Schuurman that it
‘unfortunately’ does
not have any programs that can cater
to his request.
[4]
The applicant, in reply, explains that the
lack of interest debits on the relevant statement of account is
because the respondents’
account has reached the stage of
in
duplum
as of January 2022 since the
accrued interest debited to this date equaled the respondents’
outstanding capital debt.
Discussion
[5]
The property under consideration was
mortgaged in the applicant’s favour was security for any
indebtedness on the part of
the respondents. A monetary judgment was
already obtained in December 2016. The respondents were not in the
financial position
to settle the debt for an extended period. They
remain unemployable and are not able to use the opportunities
provided by the applicant
to settle the debt. The respondents were
granted numerous postponements, which eventually only increased their
indebtedness. The
amount due and payable as at 30 July 2024 was R2
061 253,42.
[6]
There is no merit in Mr. Schuurman’s
contention that the applicant’s attorney should withdraw from
this application.
[7]
Although one is empathetic towards anyone
who lost their employment and is, due to circumstances beyond their
control, unable to
meet their financial obligations, it is trite that
the court's function in applications of this nature is to safeguard
against
abuse of the execution process.
[8]
I have regard to the fact that the
respondents are advanced in years. They previously lived with family
while their property was
leased out. Their only income is a SASSA
pension. The respondents do not have any other satisfactory means of
satisfying the judgment
debt. The applicant is not abusing the
execution process in seeking an order for the property to be declared
executable. Circumstances
require the respondents to have ample
opportunity to get their affairs in order.
ORDER
In
the result, the following order is granted:
1.
The Draft Order, marked ‘X’, dated and signed by
me, is made an order of court;
2.
The execution of prayer 3 of the draft order is suspended
until January 2025.
E van der Schyff
Judge of the High Court
Delivered:
This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
As a courtesy gesture,
it will be emailed to the parties/their legal representatives.
For the applicant:
Adv. K. Kollapen
Instructed by:
Haasbroek &
Boezaart Inc.
For the respondent:
In person.
Date of the
hearing:
29 July 2024
Date of judgment:
13 September 2024