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2024
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[2024] ZAFSHC 319
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Absa Bank Ltd v Setouto and Another (1271/2022) [2024] ZAFSHC 319 (4 October 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
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
no:
1271/2022
In
the matter between:
ABSA
BANK LTD
Applicant/Plaintiff
And
BETHANE
JOHANNES SETOUTO
1
st
Respondent/Defendant
ID:
84[..]
(Unmarried)
DINEO
NAUMI SETOUTO
2
nd
Respondent/Defendant
ID:
80[…]
(Unmarried)
Coram:
DAFFUE J
Heard
:
29 AUGUST 2024
Delivered
:
4 OCTOBER 2024
This
judgment was handed down electronically by circulation to the
applicant’s representatives and the respondents by email
and
release to SAFLII. The date and time for hand-down is deemed to
be 13H00 on 4 OCTOBER 2024.
Summary:
Application to declare immovable property executable in terms of
Rule 46A. Default judgment for payment of the capital amount of
the
loan and interest has been granted on 8 December 2022. Numerous
offers were made to settle the arrears before and after judgment,
but
notwithstanding some payments, the arrears increased all the time. A
warrant of execution in respect of movables was issued
in January
2023, but could not be served by the sheriff as the property’s
gate were kept locked. The bank proceeded with
an application to
declare the immovable property executable. The application was set
down for hearing on 2 May 2024 and thereupon
postponed twice until it
was eventually heard on 29 August 2024. Due to no monthly payments,
alternatively totally insufficient
monthly payments, the arrears
increased exponentially from the date when the demands in terms of s
129 of the NCA were sent out.
After considering all the
circumstances, the court granted the order as requested, setting a
reserve price of R630 000, being
the forced sale value of the
property, but suspended the operation of the order until 31 December
2024.
ORDER
1.
The immovable property described below is
declared specially executable and, to this end a writ of execution
may be issued as envisaged
in terms of rule 46A(2) of the Uniform
Rules of Court:
ERF 3[…]
MANGAUNG
DISTRICT BLOEMFONTEIN,
PROVINCE FREE STATE
IN EXTENT: 347 (THREE
HUNDRED AND FORTY SEVEN) SQUARE METRES
HELD BY DEED OF
TRANSFER NUMBER: T29[…]
subject to the conditions
therein contained.
2.
The registrar is authorised to issue a writ
of execution against the
immovable property.
3.
A reserve price of R 630 000.00 is set
in terms of rule
46A(9)(a) & (b) of the Uniform Rules of Court, being the forced
value of the property, subject to applicant’s
rights as
contained in rule 46A(9)(c) – (e).
4.
Costs of suit on an attorney and client scale.
5.
The operation of the order in paragraphs 1
to 3 above is suspended
until 31 December 2024.
JUDGMENT
Daffue
J
Introduction
[1]
This application in terms of Rule 46A of the Uniform
Rules of Court
is just one of so many applications set down for hearing in this
court on a weekly basis. One remarkable difference
between this
application and the others is that the two debtors, a brother and a
sister, not only filed papers in opposition of
the application, but
appeared in person to address the court.
The
parties
[2]
The applicant is Absa Bank Ltd, a financial institution
and
registered credit provider.
[3]
The first respondent is Bethane Johannes Setouto, a 39-year-old
male.
The second respondent is his sister, Dineo Naumi Setouto, a
44-year-old female.
The
relief sought and the opposition thereto
[4]
The applicant seeks an order declaring the following
immovable
property specially executable and authorisation for it to be sold at
a reserve price R 630 000, together with costs
of the
application on an attorney and client scale:
‘
Erf 3[…]
Mangaung,
District Bloemfontein,
Province Free State
In extent: 347 (three
hundred and forty-seven) square metres,
held by deed of transfer
number: T29[…].’
(the property)
[5]
I shall deal herein later with some of the facts presented
by the
respondents, but merely wish to mention at this stage that they do
not deny their liability towards the applicant and the
extent of
their debt. They submit that the property should not be sold in
execution insofar as they are prepared to make payments
to the bank
in the amount of R 3 000 per month.
Common
cause facts
[6]
The following facts are common cause, or not expressly
denied by the
respondents:
a.
the respondents started to default on their
payments in March 2020;
b.
on 31 January 2022 letters of demand in terms
s 129 of the National
Credit Act (NCA) were sent to the respondents who were in arrears at
the time in the amount of R 48 730.56
due to sporadic and/or
non-payment of the instalments from March 2020;
c.
summons was issued on 18 March 2022 for payment
of an amount of R
685 773.23 together with interest from 26 January 2022;
d.
nine months later and on 8 December 2022 default
judgment was granted
in respect of the aforesaid capital and interest;
e.
on 11 January 2023 and immediately after default
judgment was
granted, a warrant of execution in respect of movable property was
issued, but the sheriff could not serve the warrant
as the
respondents’ property was kept locked;
f.
the arrears increased exponentially
and on 6 February 2024 amounted
to R 218 807.63;
g.
on 25 June 2024 and just before the filing
of the replying affidavit
in this application, the outstanding amount was R 905 821.71 and
the amount in arrears R 258 800.33;
h.
the present monthly instalment is R 10 502.31
whilst the last
payment received from the respondents,
ex facie
the papers,
was in the amount of R 2 500 on 14 June 2024;
i.
various indulgences were sought
and granted to the respondents over
the period from February 2021 which I have considered, but I do not
intend to set these forth
in detail herein.
j.
it is obvious that the default
status of the respondents worsened
significantly over the last few years, ie from March 2020 till now,
being a period of four and
a half years;
k.
on 14 October 2022 the applicant accepted
an offer for repayment of
the outstanding amount in instalments of R 10 000 per month and
an agreement was entered into on
19 December 2022, but soon
thereafter respondents defaulted on this agreement;
l.
on 19 March 2024 and after correspondence
between the parties, the
respondents offered to pay R 6 000 per month whilst the current
instalment at that time was R 10 502.31;
m.
this last offer was unacceptable to the applicant whereafter
the
matter was set down for judgment to declare the property executable.
Evaluation
of the evidence and submissions made
[7]
Adv I Macakati submitted that this matter had a long
history and that
finality should now be obtained. She indicated, as a final attempt to
assist the respondents, that the court may
consider granting the
order as requested, but to suspend the operation thereof for a month
or two to enable the respondents to
consider their options.
[8]
Although the applicant objected to the ‘affidavits’
filed
on behalf of the respondents in this application, alleging that they
were not properly deposed to, I was prepared to consider
the
information tendered therein as they were not legally represented.
Although evidence was also tendered from the bar, I was
prepared to
listen to them. They explained that the property is their family
dwelling, occupied by the two of them as well as relatives
such as
their 76-year-old aunt, their 57-year-old unemployed uncle and a
minor niece and nephew.
[9]
The second respondent was previously employed with the
applicant, but
retrenched on 2 March 2020. Since then, she tried to conduct the
business of selling clothes, perfumes and hair
products, but could
not earn enough money to comply with the obligations towards
applicant. At that stage the Covid-19 epidemic
caused a lockdown as
we all know. The first respondent was the only family member employed
at the time and he only earned an amount
of R 10 000 per month.
[10]
The second
respondent confirmed that she, either on her own or with the
assistance of legal representatives, had several interactions
with
members of the applicant over the years. In the latest offer during
May 2024, they were prepared to pay R 3 500 to the
applicant for
a period of 24 months ‘towards the payment of the debt we owe
and pending all my efforts to secure a job or
my business efforts
begin paying off sufficiently to help the 1
st
respondent’
[1]
. Applicant
declined this offer.
[11]
The respondents submitted that the applicant’s attitude was
totally unreasonable.
It should have accepted their latest offer.
This submission was vehemently denied by Ms Macakati who emphasised
that it is now
time for the property to be sold in execution in order
to prevent further damage to the applicant.
[12]
According to the sworn valuation of the property, it is worth R
900 000.
The municipal valuation is R 610 000 and that the
forced sale value is calculated at R 630 000. These figures are
not
denied. It is also clear that it was not possible for the sheriff
to attach any movable property in order to provide for payment
of
some of the arrears. It is also apparent that the applicant is now an
unsecured creditor in respect of the amount in excess
of the total
amount for which the two mortgage bonds were registered. The
outstanding amount of R 905 821.71 is higher than
the sworn
valuation of the property and much higher than the forced sale value
thereof. Having regard to the interests of the respondents
and their
relatives on the one hand, whose primary residence may be sold if an
order as sought by the applicant is granted, and
the rights of the
applicant as a commercial financial institution on the other hand, I
am satisfied that the respondents and their
relatives cannot be
allowed to continue residing in the property without complying with
their contractual obligations. It is also
apparent that neither the
first, nor the second respondent, is married and neither of them have
children of their own.
[13]
The respondents are entitled to the right to adequate housing as
provided for
in s 26 of the Constitution. If it is impossible for
them to pay an instalment in excess of R 10 000 in respect of a
relatively
middle of the market property, they should consider
renting an available property that suit their budgets. It cannot be
expected
of the applicant to allow the situation to proceed any
further.
[14]
I have considered the applicant’s request that the operation of
the order
be suspended for a month or two. Bearing in mind the
festive season on hand, I decided to grant the order, but to suspend
the operation
thereof until 31 December 2024. The applicant is
entitled to its costs as claimed.
Order
[15]
The following order is made:
1.
The immovable property described below is
declared specially executable and, to this end a writ of execution
may be issued as envisaged
in terms of rule 46A(2) of the Uniform
Rules of Court:
ERF 3[…]
MANGAUNG
DISTRICT BLOEMFONTEIN,
PROVINCE FREE STATE
IN EXTENT: 347 (THREE
HUNDRED AND FORTY SEVEN) SQUARE METRES
HELD BY DEED OF
TRANSFER NUMBER: T29[…]
subject to the conditions
therein contained.
2.
The registrar is authorised to issue a writ
of execution against the
immovable property.
3.
A reserve price of R 630 000.00 is set
in terms of rule
46A(9)(a) & (b) of the Uniform Rules of Court, being the forced
value of the property, subject to applicant’s
rights as
contained in rule 46A(9)(c) – (e).
4.
Costs of suit on an attorney and client scale.
5.
The operation of the order in paragraphs 1
to 3 above is suspended
until 31 December 2024.
DAFFUE
J
Appearances
For
applicant/plaintiff:
Adv I
Macakati
Instructed
by:
JG
Botha Attorneys
BLOEMFONTEIN.
For
respondents/defendants:
In
Person
[1]
Replying affidavit: p 155, para 31.