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[2024] ZAFSHC 367
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Shackleton Credit Management Pty Ltd v Tshabalala and Others (804/2018) [2024] ZAFSHC 367 (15 November 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
Not reportable
Case
no: 804/2018
In
the matter between
:
SHACKLETON
CREDIT MANAGEMENT PTY LTD
Applicant
and
SAMUEL
MATLABE TSHABALALA
First
Respondent
ABSA
BANK LIMITED
Second
Respondent
[1]
STANDARD
BANK OF SA LIMITED
Third
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
Fourth
Respondent
Coram:
Opperman J
Heard
:
25 July 2024
Delivered
:
15 November 2024. This judgment was handed down in court and
electronically by circulation to the parties’ legal
representatives via email and release to SAFLII on 15 November 2024.
The date and time of hand-down is deemed to be 15h00 on 15
November
2024
Summary:
In limine – non-joinder –
rule 46A(3)
(b)
ORDER
1.
The non-compliance with the court order
dated 25 April 2024 pertaining to the late filing of the answering
affidavit by the first
respondent, Samuel Matlabe Tshabalala, is
condoned. The costs of the condonation application to be carried as
per party and party
scale B by the said first respondent, Samuel
Matlabe Tshabalala.
2.
The point in limine as raised by the first
respondent on the issue of joinder succeeds and the applicant is
granted leave to join
the Registrar of Deeds and Herholdts Lighting
Division (Pty) Ltd as interested parties to these proceedings. Costs
are reserved
on this issue in limine.
3.
The matter is to be enrolled on the opposed
roll for argument on the further points in limine on the ‘unilateral
variation
of a court order’, ‘failure to comply with rule
46A’, if still persisted with by the first respondent, and the
merits of the application by the applicant.
JUDGMENT
Opperman J
[1]
The case turns, in its essence, on action
that was instituted
by the applicant against the first respondent claiming for R408
288.80 being contractual damages suffered by
the cedent pursuant to a
vehicle finance agreement entered into between the first respondent
and the cedent for the purchase of
a Mercedes Benz G63 AMG.
[2]
On the 30
th
of July 2020 judgment was obtained by default against the first
respondent for:
‘
a.
payment of the sum of R408 288.80.
b.
Payment of costs of the suit.’
[3]
On the 4
th
of October 2022, the applicant concluded a written agreement of
cession with the third respondent Standard Bank South Africa. In
terms of the cession, the cedent unconditionally and irrevocably
ceded and made over to the applicant, with effect from 16 July
2022,
all rights, titles and interest in and to the ‘Book Debts’
listed in the schedule to the cession. The ‘Book
Debts’
were defined to include all security associated with such debts and
all judgment and all claims against any third
parties for, or in
relation to, such debts.
[4]
The applicant thus took the right to
enforce the order dated 30 July 2020 against the first respondent,
Samuel Matlabe Tshabalala.
By the time that the order was obtained
there was compliance with the legislatively prescribed prerequisites
in terms of the
National Credit Act 34 of 2005
. The order could not
have been granted otherwise.
[5]
The main application here is for the
following:
‘
1.
Declaring executable the First
Respondent’s immovable properties: -
1.1
Erf 1[…] Waverly Bloemfontein
Registration Division:
Bloemfontein RD
Province of the Free
State
Measuring 1338 square
meters
Held by Deed of Transfer
T45[…]
Situated at […]
M[…] R[…], Waverly
1.2
Portion 2, Holding 1[…], L[…] Small Holdings
Registration Division:
Bloemfontein RD
Province of the Free
State
Measuring 1.1148 square
meters
Held by Deed of Transfer
T37[…]
Situated at 1[…]
L[…] E[…], Lilyvale Small Holdings
1.3
Unit 1[…] in the Sectional Title Scheme De Kroon
Measuring 186.0000 square
meters
Held by Deed of Transfer
ST1[…]
Situated at Unit 1[…]
De Kroon, Bloemfontein
2.
Leave to return to the Honourable Court on the same papers,
supplemented
where necessary, for an
order declaring executable: -
Erf 8[…]
Heliconhoogte EXT 2
Registration Division:
Bloemfontein RD
Province of The Free
State
Measuring 1400 (one
thousand four hundred) square meters
Held by Deed of Transfer
T17[…]
Situated at 3[…]
O[…] D[…], Heliconhoogte
3.
To compel the Second to Fourth Respondents to provide the Applicant
with the information
it requires to comply with Rule 46A of the
Uniform Rules of Court.
4.
The First Respondent be ordered to pay the costs of this
application.’
[2]
[6]
The first respondent took three points in
limine. These are ‘non-joinder’, ‘unilateral
variation of a court order’
and ‘failure to comply with
rule 46A’.
[7]
The issue in limine of the non-joinder is
vital. It is the case for the first respondent that the applicant has
declared that the
properties in question are under interdict by a
third party. The interdict was registered and issued by way of a
court order in
favor of Herholdts Lighting Division (Pty) Ltd under
case number 1742/2019. The properties are also under attachment by
the same
company with the same case number. Secondly, the applicant
has failed to join the Registrar of Deeds that has a direct and
substantial
interest in the matter because of the above order. This
is what the founding affidavit states:
‘
39.
The reason for the Applicant seeking an order to declare executable
all the properties listed
above, as opposed to only one of the
Properties, is as follows:
39.1. An
interdict was registered over all the Properties by a third-party
creditor, Herholdts Lighting Division (Pty)
Ltd, as security for a
judgment of R1,558 239.77 together with interest thereon at the rate
of 10.25% from 18 April 2019 (the Interdict).
39.2
The Interdict
was registered against each of the Properties at the Bloemfontein
Deeds Office upon the instruction of Nixon &
Collins Attorneys,
as appears from "FA8-1" to "FA8-4" annexed
hereto.
39.3
On 9 June
2023, Woodgett contacted Nixon & Collins Attorneys to ascertain
whether their client's judgment, as the basis for
the Interdict, had
been settled. Woodgett was advised by one Bernice Handsel in the
employ of Nixon and Collins Attorneys that
their client's judgment
debt, which now exceeds the sum of R2 000 000.00, remained
outstanding and owing to their client.
39.4
As the
net-sale proceeds of any sale in execution will be distributed
pro-rata to the interdict-holders in accordance with their
respective
judgments, it is a strong probability, if note a foregone conclusion,
that more than one of the Properties will need
to be sold to settle
the Applicant's claim.
40.
Accordingly, the Applicant seeks an order to declare executable the
Properties in the following
order…’
[8]
It is the argument of the applicant that on
the version of the first respondent, rule 46 finds application and
not rule 46A. Reliance
on rule 46A(3)
(b)
by the first respondent is specifically so, according to the
applicant, misplaced. It states that:
‘
(3)
Every notice of application to declare residential immovable property
executable shall be—
(a)
substantially in accordance with Form 2A of
Schedule 1;
(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):
[3]
Provided
that the court may order service on any other party it considers
necessary;
(c)
supported by affidavit which shall set out
the reasons for the application and the grounds on which it is based;
and
(d)
served by the sheriff on the judgment
debtor personally: Provided that the court may order service in any
other manner.’
[9]
The court had to call a halt to the
proceedings on this issue and adjudicate on this point before the
matter could proceed. The
principal rule in this regard is that
anyone with a direct and substantial interest in a matter must be
joined; this is notwithstanding
the arguments for the applicant on
rule 46. Herholdts Lighting Division (Pty) Ltd has a clear interest
in this matter. The Office
of the Registrar of Deeds provides
oversight to deeds registries. It must be included in litigation of
this nature to regulate
the legality of the applications if
necessary.
[10]
The first respondent did not comply
with the court order dated 25 April 2024 pertaining to the time for
filing of the answering
affidavit. Condonation was granted before the
hearing commenced but it remains that the first respondent must carry
the costs of
the application as per party and party scale B. As to
the issue in limine on joinder; costs will be reserved.
[11]
ORDER
1.
The non-compliance with the court order
dated 25 April 2024 pertaining to the late filing of the answering
affidavit by the first
respondent, Samuel Matlabe Tshabalala, is
condoned. The costs of the condonation application to be carried as
per party and party
scale B by the said first respondent, Samuel
Matlabe Tshabalala.
2.
The point in limine as raised by the first
respondent on the issue of joinder succeeds and the applicant is
granted leave to join
the Registrar of Deeds and Herholdts Lighting
Division (Pty) Ltd as interested parties to these proceedings. Costs
are reserved
on this issue in limine.
3.
The matter is to be enrolled on the opposed
roll for argument on the further points in limine on the ‘unilateral
variation
of a court order’, ‘failure to comply with rule
46A’, if still persisted with by the first respondent, and the
merits of the application by the applicant.
Opperman J
Appearances
Applicant:
C
J HENDRIKS
Bloemfontein
Instructed
by Lynn & Main Inc.
Johannesburg
c/o
Willers Attorneys
Bloemfontein
First
Respondent:
S
NGOMBANE
Cape
Town
c/o
Thebe Attorneys Inc.
Bloemfontein
[1]
The
second, third and fourth respondents did not join the litigation in
this application.
[2]
Notice
of motion issued on 13 September 2023.
[3]
‘
Subject
to rule 46A and any order made by the court, no immovable property
which is subject to any claim preferent to that of
the execution
creditor shall be sold in execution unless—
(a)
the execution creditor has caused notice
upon—
(i)
preferent creditors;
(ii)
the local authority, if the property is
rated; and
(iii)
the body corporate, if the property is a
sectional title unit; calling upon the aforesaid entities to
stipulate within 10 days
of a date to be stated, a reasonable
reserve price or to agree in writing to a sale without reserve, and
has provided proof to
the sheriff that such entities have so
stipulated or agreed, or
(b)
the sheriff is satisfied that it is
impossible to notify any preferent creditor, in terms of this rule,
of the proposed sale,
or such creditor, having been notified, has
failed or neglected to stipulate a reserve price or to agree in
writing to a sale
without reserve as provided for in paragraph (a)
within the time stated in such notice.
[Sub-r. (5) substituted
by GNR.1272 of 17 November 2017.]