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[2024] ZAKZPHC 81
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Firstrand Bank Limited v Rampersad and Another (14063/2018P) [2024] ZAKZPHC 81 (18 September 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
14063/2018P
In the matter between:
FIRSTRAND BANK
LIMITED
APPLICANT
And
SHIVAL
RAMPERSAD
FIRST RESPONDENT
MSUNDUZI
MUNICIPALITY
SECOND RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Applicant has brought an application that paragraph 3 of the order
granted by this court on 27
July 2020 be amended and be replaced with
a new paragraph 3. This application is opposed by First
Respondent. At the
hearing of the said application Applicant
handed in an amended draft order which is far more comprehensive and
contains more extensive
relief than that which is set out in the
notice of motion.
[2]
Default judgment was granted by the Registrar of this court on 1 July
2019 against First Respondent
for payment of R 913 506.68 and
interest thereon at the rate of 16,1% per annum and costs on an
attorney and client scale.
It further set out that the credit
agreement concluded between Plaintiff and Defendant was declared
cancelled. The application
to have the property declared executable
was adjourned
sine die
.
[3]
On 30 September 2019 an application was brought by Applicant to be
heard on 14 November 2019 to
have the said property declared
executable. This was based on the judgment which was granted by
the Registrar for the monetary
relief. First Respondent filed a
notice to defend on 1 November 2019. An opposing affidavit as
well as a replying affidavit
was filed. On 14 November 2019 the
matter was adjourned to 4 December 2019 and First Respondent to pay
the wasted costs.
On 4 December 2019 it was adjourned
sine
die
with First Respondent to pay the wasted costs.
[4]
The matter was then set down on 21 April 2020 on the opposed roll.
Due to the covid lock
down applicable at that time the matter was
reinstated on the roll for 28 July 2020. However the stamp of
the order which
was granted is dated 27 July 2020. That does
not take the matter any further as it is common cause that that was
the order
which was granted by consent between the parties. A
draft order was handed to the court which was then granted by Chili
J.
[5]
In terms of the said order the immovable property described as Erf
1[...] L[...], Registration
Division FT, Province of KwaZulu-Natal,
In extent 764 square metres was declared executable and a
reserve price of R600 000.00
was set by the court. Paragraph 3
of the order reads as follows:
“
It
is directed that Applicant shall not proceed with the sale in
execution of the immovable property unless First Respondent fails
to
pay the amounts of R11 500.00 per month on the 7
th
day of each month until the arrears are settled in full and
thereafter his current monthly instalment.”
Now some three years
later on 31 March 2023 Applicant brings an application which was
heard on 5 September 2024 that paragraph 3
of the order which I have
set out above be replaced with the following paragraph 3:
“
3.
It is directed that Applicant shall not proceed with the sale in
execution of the immovable property
unless First Respondent fails to
pay an amount each month equivalent to the monthly instalment as
varied from time to time (dependent
on varying interest rates
applicable to the loan) and in addition a further amount of R13
956.71 per month to reduce the arrears,
such amounts to be paid on or
before the 7
th
day of each month until the arrears are settled in full and
thereafter the current monthly instalment paid each month.”
[6]
As set about above at the hearing a new draft order consisting of two
pages which is totally different
to the relief set out in the notice
of motion was handed to court. It is lengthy and I am not going
to incorporate it herein.
In terms thereof paragraph 3 of the
order of 1 July 2019 is set aside and the credit agreement concluded
between Applicant and
First Respondent dated 6 January 2018 be
reinstated and remain applicable and enforceable between Applicant
and First Respondent.
In paragraphs 2 and 3 it deals with the
variable interest rates, how the payments have to be made in terms
thereof and in paragraph
3.1 that an amount of R18 000.00 per month
to be paid until the arrears are settled in full and that it will be
reviewed every
twelve months to ensure that the loan is repaid within
the period as stipulated in the loan agreement and First Respondent
to pay
Applicants costs of the application on the scale as between
attorney and client.
[7]
It is common cause between the parties that First Respondent has
complied with the provisions
of the order dated 27 July 2020.
This is further borne out by the fact that Applicant has at no stage
to date sought any
order to have the property sold in execution.
[8]
In paragraph 1 of the draft order handed up at the hearing Applicant
seeks an order that the credit
agreement concluded between Applicant
and First Respondent dated 6 January 2018 is reinstated and the terms
thereof are to remain
applicable and enforceable between Applicant
and First Respondent. Applicant in its founding affidavit made
out no case for
this relief and that the agreement be reinstated.
There was in actual fact no mention thereof at all. It is only
in
the replying affidavit after it was raised by First Respondent
that the agreement was cancelled by the order granted by the
Registrar
that Applicant stated in its replying affidavit that it is
therefore necessary that the original agreement be reinstated.
[9]
In Sewpersath v Dookie
2009 (6) SA 611
(SCA) it concerned the sale of
property. The agreement had been validly cancelled. The
question was whether by conduct
the agreement had been reinstated.
It was held at 616 D:
“
An
agreement to revive requires a fresh meeting and concurrence of the
minds of the parties to restore the status quo ante.
No basis
for a finding that there was consensus between the parties that the
agreement be revived is to be found in the affidavits
filed by the
parties.”
This in my view is
exactly what appears from the papers. The order of the
Registrar cancelled the said agreement. Applicant
now only in
its reply and in its draft order seeks for it to be reinstated.
That in itself supports the contention of First
Respondent that the
agreement had been cancelled, otherwise there would be no necessity
to revive it. It was submitted that
it was revived by the
conduct of the parties and the terms of the order dated 27 July 2020
where it refers to the current instalment
and therefore that
indicates that it was still to be done in terms of the agreement.
[10] As
already stated, in my view, Applicant did not make out a case for the
reinstatement of the agreement in
its founding papers nor even in its
replying affidavit. It should have been done in its founding
affidavit. There is
nothing to indicate that there has been a
fresh meeting of the minds, nor any consensus between the parties to
revive the court
order. The agreement between the parties was
therefore cancelled and what remained was the debt owing to Applicant
by First
Respondent as appears from the order of the Registrar.
First Respondent and Applicant then reached an agreement as to how
this amount was to be repaid which resulted in the draft order which
was handed in by consent and which is now the basis of the
relief
claimed.
[11] It
was submitted on behalf of Applicant that since the order was granted
in July 2020 the payment of R11
500.00 per month was insufficient as
it does not even cover the interest as that has continuously risen
since that date.
It was submitted that therefore it was
necessary that a variation of the order be granted. It was
submitted that the purpose
of Rule 42 is to correct expeditiously an
obviously wrong judgment or order. The court must be influenced
by fairness and
justice of the particulars of each specific case.
It was submitted that the shortfall when payment is made by First
Respondent
constitutes an unforeseen result which follows from the
order. Therefore the order needs to be varied. It is
submitted
that a payment of at least R18 000.00 per months until the
areas are settled in full would be required. I was referred to
the decision of Felix Vulakhani Buthelezi and Others v Ephrahim
Nkunene Zungu and Others 2020 (ZAKZPHC72) (26 November 2020) a
judgment of Gorven J, as he then was, which dealt with the amendment
or variation of an interlocutor order. It held at paragraph
11:
“
The
starting point must be that the variation is not there simply for the
asking. . . It is trite that court orders should
not be varied
unless there is some compelling reason to do so.”
It was held in paragraph
17:
“
That
the parties agreed that the order should be varied so as to clarify
matters.”
It was held in paragraph
20:
“
It
was submitted that the order had unintended consequences not brought
to the attention of the judge dealing with the matter.”
In the present matter the
question arises whether there were any unintended matters which were
not brought to the Court’s
attention and whether the parties
agreed to the variation.
[12] Mr
Chetty, appearing on behalf of First Respondent, referred to Rule 42
and submitted that the requirements
of Rule 42 have not been met and
that it cannot be brought under any of the subparagraphs of Rule 42
as the judgment was not erroneously
sought or erroneously granted.
Secondly there is no ambiguity or patent error or omission and
thirdly that it was not due
to mistake common to both parties.
It was further submitted that there were no new facts and that the
judgment in the Buthelezi
matter did not apply. It was not an
interlocutory application and the application to vary was brought
three years after the
order had already been made, it was thus not
done expeditiously. It was based on a default judgment which
was granted where
the interest rate was fixed at that stage in the
order. There could be no common mistake, no patent error and
there was nothing
exceptional and that the agreement had been
cancelled. There was accordingly no existing agreement still in
place between
the parties.
[13] It
was submitted by Mr Pietersen in reply that there are new facts
arising out of the interest rate which
was not fixed and variable and
the agreement having to be reinstated. The application could be
brought in terms of Rule 42.
As far as the delay is concerned
he referred to paragraph 24 of the papers where it sets out that
there were various discussions
with First Respondent in respect of
the payments which had to be made.
[14] A
consideration of these letters and correspondence indicates that it
only emanates from February 2023 some
three years after the orders
had already been granted.
[15]
Mr. Chetty referred to the decision of Firestone South Africa (Pty)
Ltd v Genticuro AG
1977 (4) SA 298
(A) at 304 E where it was held:
“
Thus
as in the case of a document, the judgment or order and the court’s
reasons for giving it must be read as a whole in
order to ascertain
its intention. If, on such a reading, the meaning of the
judgment or order is clear and unambiguous no
extrinsic fact or
evidence is admissible to contradict, vary, qualify or supplement
it. Indeed it was common cause that in
such a case no even a
court that gave the judgment or order can be asked to state what is
subjective intention was in giving it.”
[16] As
set out above there has been no consensus between the parties that
the order was incorrect, that it was
erroneous and that it had to be
varied. There is also no new facts which have come to the
attention of Applicant which was
not available to Applicant at the
time that it took the order by consent. The monetary judgment
had been granted with a fixed
interest rate which Applicant must have
been aware of and which it was satisfied with for a period of over
three years. Only
then did it decide that due to the
fluctuating interest rate it wanted an increased monthly amount.
[17] As
I have already set out above the agreement was cancelled. There
is no case made out for the revival
of the agreement in the papers.
I thus remains cancelled and First Respondent is to pay the amount
set out in the order granted
by Chili J. to avoid execution of the
property.
[18]
The order is clear that a monthly payment of R11 500.00 per month is
to be made until the interest is paid
and thereafter the “current
amount”. However as that must refer to the agreement
which is cancelled it cannot
apply. It would have been very
easy for the parties to insert in the draft order at that stage what
was meant by the current
instalment. The word current, if one
considers the explanation thereof in the dictionary means ‘at
present’ and
in the context would appear to be the instalment
which it was at the time that the order was taken. From the
papers it appears
that the arrears at the time that the order was
taken was in the sum of approximately R97 444.00 and in the later
affidavit it
appears that the amount has indeed increased.
However as I have stated that has to be in respect of the amount
owing and
that that has to be repaid.
[19]
First Respondent has indicated that he is prepared and in a financial
position to increase the instalments
of R11 500.00 by R3 000.00 per
month to assist with the repayment. It would appear to me in
the circumstances that it would
be just and equitable that the
monthly instalment therefore be increased by the sum of R3 000.00 per
month.
[20]
The draft order in my view is for the reasons set out above not
appropriate in the circumstances and further
that no case has been
made out in the papers for such an order to be granted.
[21]
Applicant is seeking costs of this application from First Respondent
on a scale as between attorney and client.
However this
application has not been brought about by the conduct of First
Respondent. It is common cause that First Respondent
has made
all payments that he had to make as was agreed upon between the
parties. In the circumstances, in my view, First
Respondent was
not responsible for this application and that Applicant should
therefore pay First Respondents costs in the circumstances.
Accordingly the following
order is made.
1.
Paragraph 3 of the
order by Chili J, dated 27 July 2020, is varied by substituting the
amount of R11 500.00 with the amount of R14
500.00 per month.
2.
Applicant is to pay
First Respondents costs of opposing this application.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED ON:
5
SEPTEMBER 2024
JUDGMENT
HANDED DOWN ON:
18
SEPTEMBER 2024
COUNSEL
FOR APPLICANT:
W
J PIETERSEN
Instructed
by:
Stowell
& Co
Pietermaritzburg
Ref:
G J CAMPBELL/FIR/2192/LN
Tel:
033 845 0500
Email:
lauran@stowell.co.za
COUNSEL
FOR FIRST RESPONDENT:
K
P CHETTY
Instructed
by:
Swaleh
Mahomed-Attorneys
Pietermaritzburg
Ref:
MR MAHOMED/jp/HC/R
Tel:
033 394 0627
Email:
vx2rsvp@gmail.com