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[2024] ZAECQBHC 46
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Firstrand Bank Limited v Van Niekerk and Others (51/2020) [2024] ZAECQBHC 46 (9 July 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
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NUMBER.: 51/2020
In
the matter between:
FIRSTRAND
BANK LIMITED
Applicant
And
RICKY
RODWILL VAN NIEKERK
First
Respondent
MELANY
CHRYSTAL VAN NIEKERK
Second Respondent
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Third
Respondent
JUDGMENT
Beshe
J
[1] This is an
application in terms of
Rule 46A
of the
Uniform Rules
of
this court to have first and second respondents’ immovable
property declared executable and for the court to authorise
the
Registrar to issue a warrant of execution in respect of the property.
The property is described as Erf 1[…] Bethelsdorp,
in the
Nelson Mandela Bay Metropolitan Municipality, Province of the Eastern
Cape.
[2]
The application is opposed by the first and second respondents who
are married in community of property and co-owners of the
immovable
property concerned.
[3]
The third respondent is cited as an interested party being the holder
of the mortgage bond that is registered over the immovable
property.
Applicant does not seek any cost order against the third respondent.
[4]
It is common cause that on 8 July 2020 default judgment was granted
in favour of the applicant against
inter alia
first respondent
and three others for payment in the sum of R805 777.14, interest
thereon and costs.
[5]
According to the certificate of balance, as of 5 February 2024, the
amount owing to the applicant is R410 512.18 plus interest.
The debt
was incurred on behalf of a company that has since been liquidated.
Certain payments have since been made by members of
the said company
in liquidation.
[6]
Applicant contends that since a
nulla bona
certificate has
been rendered in respect of first and second respondents, they have
not taken adequate steps to pay the judgment
debt hence the
application to have their property declared executable. Applicant
points out the following factors in support of
the application:
The
market value of the property sought to be executed is R1 050 000.00.
However, the property is valued at R720 000.00 by the municipality.
The immovable property is believed to be a residential property. The
amount due to the Nelson Mandela Metropolitan Municipality
in respect
of charges as of 3 February 2023 is R6 221.59.
(The
last amount is not common cause.)
[7]
The answering affidavit was deposed to by the first respondent.
Therein, he outlines the manner in which the debt was incurred.
Namely, that he was constrained to secure an overdraft facility on
behalf of a company in respect of which he was one of the directors.
He also explains how he together with co-defendants in the main case
ended up being directors and suggest that they were duped
into
becoming directors being black men. This was for purposes of buying
material for a project that was awarded to the company.
This in turn
so that he could continue to draw a salary to take care of his family
which included young children.
[8]
Mr van Niekerk then goes on to state reasons why the application is
opposed. Those reasons being
inter alia
that:
The
property is his primary residence. He stays in the property with
second respondent and their three children aged fourteen, eight
and
three respectively. It is mortgaged with third respondent with an
amount still outstanding on the mortgage bond. Should the
property be
sold, they will have no alternative place to stay, and the property
will be sold to their detriment. The debt was incurred
for use by a
company and not for his own use/benefit/enjoyment. Those responsible
for making payment on behalf of the company failed
to do so even
though payments were made for work done by the company. Since
February 2023 he has been permanently employed and
thus has means to
satisfy the debt other than by having their primary residence sold in
execution.
[9]
In reply, applicant states that even though first respondent wrote to
advise that he had secured permanent employment, he has
not made any
payments towards the outstanding balance.
[10]
The respondents appeared in person in view of the withdrawal of their
attorneys of record as per their notice dated 21 November
2023.
[11]
As a result of respondents’ attorneys of record withdrawal,
respondents, instead of filing heads of argument, filed what
they
categorised as their response to applicant’s heads of argument.
This response is in the form of an affidavit deposed
to by both first
and second respondents. Attached thereto are a number of annexures.
The annexures seem to mostly concern factors
relating to how the debt
was incurred. Also attached is proof of payment of various amounts
towards the debt made during the years
2023 and 2024. This has raised
the ire of the applicant which led to the raising of a complaint that
the respondents have filed
an additional affidavit without having
sought the court’s permission to do so.
[12]
However, applicant acknowledges in its heads of argument that first
respondent has made certain payments after this application
was
launched, but that such payments have not been effective in reducing
the judgment debt. Further that the first respondent has
not taken
the court into his confidence by placing information before court of
how much he earns and how he proposes to settle
the debt.
[13]
It is of no moment therefore that respondents’ heads of
argument are in the form of an affidavit. They are also aptly
entitled “response to the applicant’s heads of argument”.
The annexures thereto, as indicated are relevant to
the manner in
which the debt was incurred which appears to be common cause between
the parties. The only annexures that are of
relevance to the present
application are those relating to the payments that have subsequently
been made by first respondent. Those
too are not in dispute. The
payments have become common cause.
[14]
Respondents deny that their debts will be extinguished if the
property is sold. They will still owe the third respondent. They
further point out that they will not be able to secure an alternative
place to stay because they do not have a great credit score
because
they fell on hard times after the company was liquidated and first
respondent only secured a permanent job recently. They
deny that
there is sufficient equity in their immovable property arguing that
they will still remain indebted to the applicant
as well as in
respect of their mortgage bond and unable to secure an alternative
place to stay. Furter that the prejudice they
will suffer if the
execution application was granted and they lost their home, will be
much higher than the prejudice the applicant
will suffer.
[15]
It is trite that the objective of
Rule 46A
is meant to protect
debtors, in particular indigent debtors who were in danger of losing
their homes. This is so as to give effect
to
Section 26(1)
of
the Constitution.
Section 26(1)
guarantees everyone the right
to have access to adequate housing. The aim of
Rule 46A
is to
enable the court to consider whether the
Section 26(1)
rights
of the debtor would be violated if their house were to be sold in
execution. This is the case in instances where the property
concerned
is the debtor’s primary residence.
[16]
There are a number of factors that the court will have regard to when
considering whether the debtors’ property should
be declared
executable. Those being,
inter alia
, whether the property is
the debtors’ primary residence. In the case under
consideration, it appears to be common cause that
the property is
first and second respondents’ primary residence together with
their minor children. The circumstances under
which the debt was
incurred. Those were outlined by the first respondent. I need not
repeat them. The amounts owing both in respect
of the mortgage bond
and the debt under consideration in this matter. The debtors’
payment history. The reason for default/non-payment.
The
proportionality of the prejudice the creditor will suffer if the
execution were to be refused compared to the prejudice the
debtor
will suffer if the execution of his home went ahead.
[17]
I am of the view tat the respondents have shown that they will suffer
more prejudice than the creditor should their property
be executed.
They have also shown albeit without much detail, probably due to
being lay persons, that they are prepared to service
the debt and
that first respondent will be able to do so now that he is
permanently employed. I do not agree with the applicant
that the
payments are sporadic. As to whether the debtor will lose access to
housing as a result of execution being levied against
the property,
the respondents have shown that they will lose access to housing
should their house be declared executable and sold.
[18]
Having considered all the circumstances of this matter, especially
those that have a bearing on the factors to be considered
in respect
of applications of this nature, I am of the view that the respondents
are taking steps to reduce the debt and that declaring
the property
executable in the circumstances will infringe their right under
Section 26(1)
of the Constitution.
[19]
Accordingly, the application is dismissed. There will be no order as
to costs.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant
:
Adv: P. T. Marais
Instructed
by
MCWILLIAMS
& ELLIOTT INC
152
Cape Road
Mill
Park
GQEBERHA
Ref:
Ms M Marais
marileze@mcwilliams.co.za
Tel.:
041 – 582 1250
For
the 1
st
Respondent
: Mr
Ricky Rodwill Van Niekerk
Instructed
by
First
Respondent in person.
32
Bacon Street
Hillside
GQEBERHA
Ref.:
51/2020
rickyvanniekerkacs4@gmail.com
Tel.:
072 248 7250
For
the 2
nd
Respondent
Ms
Melany Chrystal Van Niekerk
Instructed
by
:
Second Respondent in person.
32
Bacon Street
Hillside
GQEBERHA
Ref.:
51/2020
melany.vanniekerk@fnb.co.za
Tel.:
073 879 8018
Date
Heard
: 15
February 2024
Date
Reserved
: 15
February 2024
Date
Delivered
: 9
July 2024
Judgment
handed down electronically by circulation to the parties’ legal
representatives via email and release to SAFLII.
The
date and time of handing down of the judgment is deemed to be on the
9 July 2024 at 13h00.