First Rand Bank Limited v Barnwell and Another (2017/6235) [2018] ZAGPJHC 102 (26 March 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 4762/2017

Not reportable

Not of interest to other judges

Revised.

26 March 2018

In the matter between:

FIRST RAND BANK LIMITED Applicant

and

ARTHUR COLIN BARNWELL First Respondent

NADIA BARNWELL Second Respondent

J U D G M E N T

MODIBA, J:

[1] The applicant, First Rand Bank Limited (“First Rand”) seeks an order for the payment of R770, 711.00 in respect of the respondents’ written mortgage loan agreement. In its notice of motion, the applicant also seeks an order declaring the respondents’ mortgaged immovable property specially executable.

[2] The first respondent is Arthur Colin Barnwell (ACB) and the second respondent is Nadia Barnwell (NB) (jointly the Barnwells). When the present proceedings were instituted, they were in the process of getting divorced. NB is the only party opposing the application. She has filed a counter application for the dismissal of the applicant’s prayer declaring the immovable property specially executable and directing the second respond to pay the arrears on the home loan as well as future monthly instalments as and when they become due.

[3] In its founding affidavit, First Rand draws the Barnwells’ attention to their right to housing in terms of section 26(1) of the Constitution and invites them to place their circumstances before the court for consideration in terms of section 26(3) and Uniform Rule 46(1) (a) (ii) when declaring the immovable property specially executable. NB does so in her answering affidavit and founding affidavit in respect of the counter application I pause to mention that Rule 46(1) (a) (ii) has been repealed by Rule 46A.[1]

[4] During argument, the applicant’s counsel only moved for the monetary order after I pointed out that the applicant has failed to comply with uniform Rule 46A[2]. He contended that the applicant has made out a case for such an order to be granted on the papers as they stood. He cited the following reasons for this contention: the Barnwells do not oppose the monetary order; the issues that NB raises in her counter claim are private and purely marital and have no bearing on the relief First Rand seeks on purely contractual basis; failure to comply with Rule 46A is not a bar to the granting of the monetary order because the Rule was proclaimed after the application was launched and further, on the authority in ABSA Bank Limited v Njolomba[3], the court may grant such an order separate from an order declaring the mortgaged property specially immovable. My preliminary view is that Njolomba is not authority in these proceedings. It is only persuasive as it seeks to depart from the full court judgment in Absa Bank v Lekuku[4] applied in Zwane v FirstRand Bank Limited.[5]

[5] I did not allow a proper ventilation of these issues because NB appeared in person and informed the court that she persists with her opposition to First Rand’s application, as well as her counter claim. NB informed the court that several developments have transpired since the papers were filed. Her attorneys of record have withdrawn from the matter. She is aware of this as she was served with a notice of withdrawal. It has also been filed. The parties have since divorced. A receiver and liquidator has been appointed to liquidate the matrimonial estate. She is under the impression that the receiver and liquidator would participate and represent her in these proceedings. As a lay person she did not know that the receiver and liquidator has a distinct role and that he is not the legal representative to any of the parties to the divorce. The mortgaged property has been placed on the market. She prefers that the property is not sold and for that reason, she persists with her counter claim where she seeks an order directing her husband to bring the mortgage loan repayments up to date and continue making payments as and when they fall due in terms of an existing maintenance order. In the event that the property has to be sold, having it sold in the open market will be more beneficial

to her and ACB. It is appropriate that she deposes to a supplementary affidavit to properly place these facts before the court.

[6] The submission by counsel for First Rand that in the counterclaim NB relies on irrelevant factors and that she does not oppose the monetary relief is inconsistent with averments in NB’s answering affidavit and founding affidavit to the counter claim. A holistic reading of these documents indicates that she wants her erstwhile husband to pay the arrears in terms of a maintenance order and continue to pay mortgage bond payments as and when they become due. In any event, NB has filed opposing papers and a counter claim. Therefore the application is opposed and ought to have been enrolled on the opposed motion court roll.

[7] It is therefore appropriate that the matter is postponed sine die to afford NB an opportunity to seek legal representation and to file a supplementary affidavit for a proper ventilation of the issues in the opposed motion court.

[8] In the premises, the following order is made:

ORDER

1. The application is postponed sine die.

2. Costs are reserved.

________________________________________

L T MODIBA

JUDGE OF THE HIGH COURT

APPEARANCES

Counsel for the applicant: Mr. B Van der Merwe

Instructed by: Glover Kannieappan

Counsel for the respondent: Appeared in person

Instructed by:

Date of hearing: 12 March 2018

Date of judgment: 26 March 2018

[1] This rule was proclaimed in Government gazetted 18 No. 41257 of 17 November 2017. It came into operation on 22 December 2017.

[2] This rule was proclaimed in Government gazetted 18 No. 41257 of 17 November 2017. It came into operation on 22 December 2017.

[3] An unreported judgment of this division delivered by Fisher J on 3 March 2018.

[4] [2014] ZAGPJHC 244 (14 October 2014).

[5] Another unreported judgment of this division delivered by van der Linde J on 27 July 2016.