Land and Agricultural Development Bank of South Africa v Vermaak and Others (4316/2020) [2021] ZAFSHC 36 (16 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION

Case No.: 4316/2020

In the matter between:

THE LAND AND AGRICULTURAL DEVELOPMENT

BANK OF SOUTH AFRICA

Applicant

and

SALMON VERMAAK

1st Respondent[1]

JOAN VERMAAK

2nd Respondent

SALMON VERMAAK N.O.

3rd Respondent

JOAN VERMAAK N. O.

4th Respondent

GABRIEL FRANCOIS LINGEN FRONEMAN N.O. 5th Respondent

(In their capacities as trustees of the Gunsteling Trust

IT 1165/2004)

ABSA HOME LOANS GUARENTEE COMPANY (RF) (PTY) LTD 6th Respondent

Coram:

Opperman, J

Date of hearing and order: 11 February 2021

Delivered:

The reasons for judgment were handed down electronically by circulation to the parties’ legal representatives by email and released to SAFLII on 16 February 2021. The date and time for hand-down is deemed to be 16 February 2021 at 15h00.

Summary:

Relief under Uniform Rule 46A – authorisation for residential immovable property to be sold in execution

ORDER

Having considered the documents filed on record and having heard Counsel for the Applicant and Respondents IT IS ORDERED THAT:

1.

The immovable property described below is declared specially executable and a writ of execution may be issued as envisaged in terms of rule 46A(2) of the Uniform Rules of Court:

Portion 0 of Erf 353 Meyershof EXT 1, Nala Local Municipality, Bothaville RD, Free State Province; Street address at 7 Kiepersol Street, Meyershof, Nala Local Municipality; held by the Gunsteling Trust [IT1165/2004] under the Title Deed T689/2007; subject to the conditions therein contained.

2.

The Registrar is authorised to issue a writ of execution against the immovable property.

3.

The property be sold by the Applicant or its appointed agent in conjunction with the Sheriff of the Court by public auction or private treaty with a reserve price of R800 000.00 (Eight hundred thousand) set in terms of rule 46A(8) of the Uniform Rules of Court, subject to Applicant’s rights as contained in rule 46A(9).

4.

It is included as special conditions of sale that:

4.1 The Applicant electronically provide to the First to Fifth Respondents’ attorney a copy of the cession contract concluded between the Applicant and Suidwes, before close of business on 12 February 2021; and

4.2 The Respondents’ attention are drawn to Section 26 of the Constitution of the Republic of South Africa, 1996 which accords to everyone the right to have access to adequate housing. Should the Respondents claim that the order for execution will infringe with that right, it is incumbent on the Respondents to place information supporting that claim before the Court.

5.

The First to the Fifth Respondents are ordered to pay the costs of this application on a scale as between attorney and client.

REASONS FOR JUDGMENT

[1] On 11 February 2021 I gave the above order and indicated that my reasons will follow in due course.

[2] The Applicant approached the court under the prescripts of Uniform Rule 46A seeking authorisation for the residential immovable property of the Third to Fifth Respondents (The Gunsteling Trust) to be sold in execution.

[3] On 28 November 2019 an order[2] was issued from this Court that:

“1. Judgment is granted against the First Respondent, Second Respondent and the Gunsteling Trust, as represented by the Third and Fourth Respondents, as follows:

1.1 Payment in the amount of R1 000 000.00 (One million Rand only) to be paid by the First Respondent, Second Respondent and the Gunsteling Trust each, together with a tempore morae interest at a rate of 10,25% until date of payment.

2. The Respondents to pay the Applicant’s costs on a scale as between attorney and client.”

[4] The order followed on an application launched against the Respondents on 4 September 2019 for R 1 000 000.00 with interest. Despite the fact that the Applicant’s application was initially

opposed the Respondents failed to file an Answering Affidavit in opposition of the relief sought. The above order notwithstanding, the Respondents failed to make payment toward the judgment debt.

[5] The Applicant instructed the Sheriff to execute an attachment over all the movables based on the Order. A warrant of execution was issued on 20 January 2020. The Sheriff was unable to attach any moveable assets or disposable property to satisfy the warrant or any portion thereof.

[6] The Gunsteling Trust is the registered owner of the immovable property at issue. After due consideration of the factors that were set out in the Founding Affidavit at paragraph 11 and discussed in paragraph 12 the Applicant proved the immovable property to be prima facie and legally susceptible to be declared specially executable and a writ of execution to be issued as envisaged in terms of rule 46A(2) of the Uniform Rules of Court.

[7] The Respondents attack against the application is based on an argument that the Applicant did not prove its standing in the application for Default Judgment on 28 November 2019. They did not attach a true copy of the cession agreement that caused their right to launch the Default-proceedings and they did not plead that they

properly complied with the cession agreement. An application for rescission of the Default Judgment is apparently pending on the

issue.

[8] During the hearing in casu the court inquired whether the agreement had been perused and considered by the Respondents to prevent delays and wasteful litigation and consider the allegations of lack of standing. The answer was in the negative with an explanation that the Applicant indicated the availability of the document at their offices with a refusal to make a copy available. Counsel for the Applicant immediately took instructions and it was undertaken that the beleaguered agreement will be made available to the Respondents without delay and volunteered said to be made an order of the court. The court was assured that all requirements were complied with. The Respondents had filed a rescission application without ensuring the veracity of their case. The pending litigation - defense now fell flat.

[9] The Respondents had an indication of the futility of their endeavors to delay an application for the execution of the property when an urgent application to suspend the Applicant’s warrant of execution in terms of Rule 45 was removed from the roll on the basis of a lack for urgency. The Respondents brought an application for Leave to Appeal that was refused. The Respondents have noted an appeal to the Supreme Court of Appeal that is pending.

[10] Counsel for the Applicant correctly pointed out that the delaying tactics of the Respondents cannot be tolerated any further. It is inappropriate to reconsider the Respondents indebtedness that was pronounced on by Court. Rule 46A prescribes that the Court is only tasked to establish whether the immovable property which the execution creditor intends to execute against is the primary residence of the judgment debtor and whether alternative means by the judgment debtor of satisfying the debt, other than execution against the primary residence, is forthcoming and viable. Further the court

shall not authorize execution against the residential immovable property unless the court having considered all relevant factors

consider the execution warranted.

[11] The words echoed in the Hlumisa Technologies and another v Nedbank Ltd and others 2020 (4) 553 ECD ring true:

“[17] As eloquently put by Mudau J, automatic suspension of any judgment or order of court upon delivery of rescission application by any person could result in an absurd situation. That is, meritless rescission applications can easily be resorted to, to frustrate the execution of a judgment or an order of court.

[18] I could not agree more with the conclusion and reasoning of Legodi JP in Pine Glow and it serves no purpose to restate same, which I shall adopt.”

[12] The best just and equitable order that I could make in the circumstances is to protect the Respondents from eviction from the immovable property if it is their primary residence and to spare them costs whilst serving the administration of justice.

[13] ORDER

1. The immovable property described below is declared specially executable and a writ of execution may be issued as envisaged in terms of rule 46A(2) of the Uniform Rules of Court:

Portion 0 of Erf 353 Meyershof EXT 1, Nala Local Municipality, Bothaville RD, Free State Province; Street address at 7 Kiepersol Street, Meyershof, Nala Local Municipality; held by the Gunsteling Trust [IT1165/2004] under the Title Deed T689/2007; subject to the conditions therein contained.

2. The Registrar is authorised to issue a writ of execution against the

immovable property.

3. The property be sold by the Applicant or its appointed agent in conjunction with the Sheriff of the Court by public auction or private treaty with a reserve price of R800 000.00 (Eight hundred thousand) set in terms of rule 46A(8) of the Uniform Rules of Court, subject to Applicant’s rights as contained in rule 46A(9).

4. It is included as special conditions of sale that:

4.1 The Applicant electronically provide to the First to Fifth Respondents’ attorney a copy of the cession contract concluded between the Applicant and Suidwes, before close of business on 12 February 2021; and

4.2 The Respondents’ attention are drawn to Section 26 of the Constitution of the Republic of South Africa, 1996 which accords to everyone the right to have access to adequate housing. Should the Respondents claim that the order for execution will infringe with that right, it is incumbent on the Respondents to place information supporting that claim before the Court.

5. The First to the Fifth Respondents are ordered to pay the costs of

this Application on a scale as between attorney and client.

M OPPERMAN, J

APPEARANCES

Counsel for the Applicant

Advocate B H Steyn

Leahy Attorneys

Waterkloof

C/OMcIntyre Van der Post

12 Barnes Street

Westdene

BLOEMFONTEIN

[Ref: AAT269/Elene)

Email: christiaan@mcintyre.co.za

Counsel for Respondent

Advocate L Zazeraj

Bredenkamp Attorneys

15 Dauphine Street

Bayswater

Email:cobus@bredenkamp.lawyer

[1] First to Fifth Respondents will be referred to as the “Respondents”. The 6th Respondent did not join the litigation in casu.

[2] Case 3612/2019: Acting Judge H Murray, FA 3 page 87-88 of the Court Bundle. Hereafter referred to as “The Order”.