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2024
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[2024] ZAKZPHC 117
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Body Corporate of Monterey v Zakwe (AR483/2023) [2024] ZAKZPHC 117 (29 November 2024)
FLYNOTES:
CIVIL PROCEDURE – Execution –
Primary
residence
–
Personal service on debtor – Requirements of Magistrates
Court Rule 43A – Magistrate refused appellant
leave to
execute against property – Requirements had not been
established – Not established that unit was primary
residence – Status of residential property is a factual
issue – One upon which judgment debtor is entitled to
be
heard – Court a quo’s order cannot be faulted –
Appeal dismissed – Uniform Rule 46A.
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal Case no:
AR483/2023
REPORTABLE
In the matter between:
BODY CORPORATE OF
MONTEREY
APPELLANT
and
S’KHUMBUZO
ZAKWE
RESPONDENT
JUDGMENT
Olsen J (Shapiro AJ
concurring):
[1]
The appellant in this appeal is the Body
Corporate of the Monterey sectional title complex situate in Richards
Bay. In 2022 it issued
a summons out of the Empangeni Magistrates
Court, in which it claimed payment of a sum of some R26 000,00 from
the defendant, Mr
Zakwe. Mr Zakwe owns unit 50 in the Monterey
development, and the claim was for payment of arrear levies together
with interest
which had accrued thereon at a compound rate of 24
percent per annum.
[2]
The summons was affixed by the sheriff to the principal
outer main
door of unit 50 as the premises were found to be locked and
unattended. After some queries raised by the magistrate
had been
answered default judgment was granted in favour of the appellant. A
warrant of execution against movable property was
issued, directing
the sheriff to unit 50 for the purpose of its service. The sheriff
rendered a return indicating that the process
could not be served and
that he had been informed by a tenant at the premises, a Mrs
Govender, that Mr Zakwe had left the given
address. The appellant
then launched an application in terms of Rule 43A of the Magistrates’
Court Rules for leave to execute
against the unit. That application
was served on the tenant, Mrs Govender. (In terms of the management
rules of the development
the address for delivery of legal process is
the unit.) The magistrate refused the application. That generated the
present appeal.
The sheriff served the Notice of Appeal by pinning it
to the outer door of unit 50 because he found the premises locked and
unattended.
Mr Zakwe played no part in the appeal.
[3]
To complete the broad outline of the matter which served
before the
magistrate the following facts which emerge from the founding papers
in the application in terms of Rule 43A bear mention.
(a)
The value of unit 50 is about R680 000.00.
(b)
Unit 50 is not mortgaged.
(c)
No amounts were owing (at the time) to the local authority in respect
of rates and service charges.
[4]
Unfortunately the reasons provided by the Magistrate
in term of Rule
51(1) for the order she made dismissing the application are in some
respects something of a muddle. Having said
that, I think it is fair
to say that the magistrate’s decision rested on a finding she
made that the three returns rendered
by the sheriff were not
sufficient to either prove or disprove the proposition that unit 50
was the primary residence of the defendant.
Having decided that, the
magistrate pointed out that the requirements laid down in Rule 43A
for an order that a primary residence
of a judgment debtor may be
sold in execution had not been established by the appellant and that,
as a result, the application
had to be dismissed.
[5]
The reason for the magistrate’s emphasis on the
question as to
whether unit 50 was Mr Zwake’s primary residence is not
difficult to discern. In the founding affidavit there
was already a
submission that, because it had not been established that the unit
was his primary residence, the court’s discretion
to consider
and fix a reserve price was not engaged. In the heads of argument
submitted to the magistrate in support of the application
one sees a
heading: “Is there a need for judicial oversight at all if the
respondents do not live in the property in question?”.
An
argument was then advanced with reference to certain authorities for
the proposition that because it had not been established
that this
was a case of the type considered in
Jaftha,
the answer to that question is in the negative. Somewhat selective
references were made to cases such as
Mkhize
v Umvoti Municipality and others
2012 (1) SA 1
(SCA) without, in that instance, referring the
magistrate to paragraph 26 of the judgment which reads as follows.
“
The
object of judicial oversight is to determine whether rights in terms
of s 26(1) of the Constitution are implicated. In the main
a number
of cases grappling with
Jaftha
sought to arrive at that determination without accepting that
judicial oversight was required in every case. How, it must be asked,
can a determination be made as to whether s 26(1) rights are
implicated, without the requisite judicial oversight? We are unable
to understand the difficulty of applying the principle that it is
necessary in every case to subject the intended execution to
judicial
scrutiny to see whether s 26(1) rights are implicated. To not
undertake such an enquiry would in fact render the procedure
unconstitutional. Following that simple principle would have avoided
the confusion cause by a number of judgments.”
[6]
The appellant presented the magistrate with a copy of
a full bench
decision of the Gauteng Division, Johannesburg delivered in May 2021,
which appears not to have been reported, nor
preserved on the Saflii
internet site. It is
The Body
Corporate of Bushmill Sectional Title Scheme vs Kgomo,
Case Number 3039/2020. This passage from paragraph 12 of the judgment
was quoted in the appellant’s heads of argument.
“
In
other words, Rule 43A is there to protect the primary residence of
the judgment debtor, it is not there to assist it from avoiding
its
legal duty to relinquish (
sic
)
the debt. The protection is over the primary residence and not any
other residence of the judgment debtor.”
The
magistrate was treated to a lecture on the doctrine of
stare
decisis,
rounded off with the following submission.
“
It
is respectfully submitted that the court is bound by the Bushmill
matter, whether it agrees therewith, or not.”
[7]
The heads of argument submitted to us on appeal follow
much the same
line as those with which the magistrate was confronted. We have also
been referred to the judgment in
Bushmill,
and on that authority asked to conclude that “the discretion of
the court
a quo
as contained in Rule 43A of the Magistrates Court Rules is …
not triggered”, because the respondent does not reside
in the
unit.
[8]
That aside, it is argued on behalf of the appellant that
even if the
magistrate had a discretion to investigate, the relevant facts fall
exclusively within the knowledge of the respondent,
and that it is
for the respondent to raise such facts. It is put this way in the
heads of argument.
“
It
is for the respondent to demonstrate that he has other reasonable
means to satisfy the judgment. It is for the respondent to
disclose
his financial position. It is for the respondent to disclose whether
he is employed, or not and if employed for what salary
and whether he
has other sources of income as this information falls peculiarly
within his knowledge and is not readily available
to the applicant.”
[9]
The question which these submissions raise is of course
whether the
respondent had any notice of the proceedings, as without such notice
the absence of information from him on such matters
is of no
significance.
[10]
The issue as to whether there had been proper service of the
application, that
is to say as to whether the court could take it
that the respondent had notice of the proceedings, was not raised in
the heads
of argument submitted to the magistrate, was not dealt with
by the magistrate in her reasons for judgment, and was not raised in
the heads of argument delivered to this court. It was raised by this
court during the course of oral argument and dealt with. In
my view
this issue is decisive of this appeal. No authority is required for
the proposition that an appeal lies against the order
of a court
a
quo
, and not against the reasons
given for the order. If the order was correct for reasons not given
by the court a quo, the appeal
must fail.
[11]
Rule 43A (3) provides as follows.
“
(3)
Every notice of application to declare residential immovable property
executable shall be -
…
(d)
Served by the sheriff on the
judgment debtor personally: Provided
that the court may order service in any other manner.”
The
same provision is contained in Rule 46A of the Uniform Rules. Its
interpretation in this Division is unquestioned. An applicant
for an
order authorising execution against any residential immovable
property must attempt to achieve personal service upon the
judgment
debtor. If it cannot be achieved then an application for what is in
effect substituted service (“service in any
other manner”)
must be made. The applicant for such relief must set out all
information available to, or which ought reasonably
to be available
to, the applicant concerning the whereabouts of the judgment debtor,
and must propose the alternative modes of
service which the court is
asked to sanction. The founding affidavit in such an application must
disclose why it should be accepted
that personal service is not
reasonably possible, and the basis upon which it is argued that such
alternative modes of service
are likely to bring the proceedings to
the attention of the judgment debtor. If satisfied, the court will
order such “service
in any other manner”. Something less
than personal service achieved otherwise than in accordance with a
prior order of court
contemplated by the proviso to the subrule is
not acceptable. The wording of the rule makes it clear that the prior
sanction of
the court for such non-personal service is required.
[12]
When this issue was raised in argument before us counsel for the
appellant
referred us to the judgment in
Bushmill
.
The facts in
Bushmill
were
not dissimilar to those present here. Judgment had been granted
against an absent sectional title holder for unpaid levies.
The unit
in question had been let to a tenant. Execution against movable
property proved unsuccessful. The warrant of execution
against the
unit was served on the tenant. The judgment creditor (the body
corporate) sought the courts sanction of execution against
the unit
in terms of Rule 43A of the Magistrates Court rules. As recorded in
paragraph 7 of the judgment
“
The
learned magistrate came to the conclusion that personal service,
alternatively non-personal service authorised by the court,
was
essential for the court to entertain the application. The applicant
in this case had done neither. It also refused the learned
magistrate’s offer to bring an application to court to serve
“in any other manner” other than personally on the
respondent.”
The
issue in the appeal in
Bushmill
was whether Rule 43A imposed a
duty on the applicant to effect personal service, or to seek
authorisation for an alternative form
of service.
[13]
The court in
Bushmill
recognised that the language employed in subrule 3(d) conveys that in
“every” application to declare residential immovable
property executable there must be personal service, or otherwise
service executed in terms of an order granted by the court
authorising
such other service. The language draws no distinction
between residential property which is the primary residence of the
owner
and residential property that is not.
[14]
Having done that, the court in
Bushmill
pointed out that if a judgment debtor or his or her family were to be
rendered homeless, their constitutionally protected right
under
section 26 of the Constitution could be violated. Thus, argues the
judgment, the required exercise of caution before ordering
that a
primary residence be declared executable. That led to the conclusion,
in the passage quoted earlier in this judgment, that
Rule 43A is
there to protect the primary residence of the judgment debtor and not
any other residence of the judgment debtor.
“
[13]
It is on this purposive interpretation that the question of
whether personal service is obligatory in a case where an
order for
the non-primary residence of a judgment debtor to be made specially
executable is sought. In my view, clearly not. There
is no
constitutionally protected right that is at risk of being violated by
such an order. Such an order was sought in the present
case.”
The
appeal was upheld and an order made declaring the respondents
sectional title unit executable.
[15]
In my respectful view the decision in
Bushmill
was clearly wrong. Rule 43A (1)
provides that “[T]his rule applies whenever an execution
creditor seeks to execute against
the residential immovable property
of a judgment debtor”; the word “whenever”
signifies in all cases. Subrule
(2)(a) obliges the court to establish
whether the property is the primary residence of the debtor, and to
consider alternative
means of satisfying the judgment if it is; and
to refuse to authorise execution unless, after considering all
relevant factors,
the court considers such execution against a
primary residence to be warranted. In like manner subrule 8(b)
provides that execution
against the primary residence of the judgment
debtor can be granted if there are no other satisfactory means of
satisfying the
judgment debt. Otherwise, all the provisions of Rule
43A apply to residential immovable property, whether or not it is the
judgment
debtor’s primary residence. The rule is carefully
crafted to convey that in clear language, and I am unable to see how
a
purposive approach to its construction can be taken to nullify the
opening proclamation of the rule, that it applies whenever execution
is sought against “residential immovable property”.
[16]
In my view this analysis of Rule 43A of the Magistrates’ Court
Rules
accords with the analysis of Rule 46A of the Uniform Rules set
out in paragraphs 74 – 76 of the judgment in
Bestbier
and others v Nedbank Limited
[2024]
JOL 64354
(CC). Of particular importance in the present context
is this statement in paragraph 75 of the judgment in
Bestbier
.
“
The
importance of judicial oversight over all residential immovable
property, and not only primary residential immovable property
is that
it would be risky to leave it to the judgment creditor to determine
whether the property is used as primary residence without
this
question being ventilated or determined by a court.”
It
is difficult to see how the issue can be properly ventilated without
notice to the judgment debtor; which is why personal service
cannot
be dispensed with merely because, on the face of it, it appears that
the residential property may not be the primary residence
of the
judgment debtor.
[17]
In my view the right of the judgment debtor to be heard is not
confined to
subjects such as the reserve price, or other conditions
of sale which might be stipulated by the court hearing an application
under
Rule 43A. Whilst the judgment debtor’s absence from the
property in question at the time of service might be an indicator,
and sometimes a strong one, that it is not his primary residence,
that is not necessarily the case. If a person vacates her sectional
title unit to allow her aged and unwell parents to occupy it because,
for the time being, their need is greater, does that mean
that the
unit, which is the only residential accommodation she owns, is no
longer her primary residence? Does the primary residence
of an
artisan lose its status as such if he leaves it for a year or so to
work on a far-flung project, and lets it in the meantime?
The status
of residential property is a factual issue, and one upon which the
judgment debtor is entitled to be heard. There is
every reason to
insist on personal service if it can be achieved.
[18]
In the result the order made by the learned magistrate in the court
a
quo
cannot be faulted. One supposes
that she may have chosen not to justify her order upon the basis that
personal service was required,
because she regarded herself as bound
by the decision in
Bushmill
,
to which she had been referred.
[19]
The following order is made.
The
appeal is dismissed.
_____________________
Olsen
J
_______________________
Shapiro
AJ
Case
Information:
Judgment
reserved: 11
October 2024
Judgment
delivered: 29
November 2024
For
Appellant:
M E Stewart
Instructed
by:
L J
Kruger Inc
c/o
Stowell & Co.
295
Pietermaritz Street
Pietermaritzburg
Tel:
033 845 0500
Email:
sumayan@stowell.co.za
Ref:
S Norgot/LJK1/0001