Maaga v North-West Development Corporation Limited and Others (265/02) [2003] ZANWHC 8 (6 March 2003)

CASE NO : 265/02

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHASWANA PROVINCIAL DIVISION)

In the matter between:

TSHEPO

JOHN MAAGA APPLICANT

and

BRIAN

ST CLAIR COOPER NO

BLESSING

GCABASHE NO

FERDINAND

ZONDAGH NO

[In their capacities as the Final Joint

Judicial Managers of the NORTH

WEST

DEVELOPMENT CORPORATION

LIMITED(under final Judicial Management)]

1st

RESPONDENT

NQOBISIZWE NDLOVU 2nd

RESPONDENT

THE SHERIFF ODI 3RD

RESPONDENT

MMABATHO

FOR THE APPLICANT : G L M BOKABA

FOR THE 1ST RESPONDENT : L C J MAREE SC

DATE OF HEARING: 13 FEBRUARY 2003

DATE OF JUDGMENT : 06 MARCH 2003

JUDGMENT

LEEUW J: The Applicant approached this Honourable Court on an urgent basis on the 11th June 2002 for an order in the following terms: “Treating this matter as urgent and dispensing to (sic) the rules relating to service and time frames as laid down in Rule 6 of the Uniform Rules of the above Honourable Court. Granting Applicant leave to bring this application against First Respondent. Declaring that Applicant’s agreement regarding business finance between Applicant and First Respondent, was transferred from Applicant to Second Respondent or Applicant was substituted as a party thereto by the Second Respondent. (sic) Declaring that if First Respondent has any cause of action, same cannot be proceeded with against Applicant. Alternatively, declaring that First Respondent’s debt against Applicant has prescribed and no longer executable due to the lapse of time within which to execute. Setting aside the warrant of execution as well as the notice of sale in execution, dated 19th March 2002 and 9th May 2002.

JUDGMENT

LEEUW J:

The Applicant approached this Honourable Court on an urgent basis on the 11th June 2002 for an order in the following terms:

“Treating this matter as urgent and dispensing to (sic) the rules relating to service and time frames as laid down in Rule 6 of the Uniform Rules of the above Honourable Court.

Granting Applicant leave to bring this application against First Respondent.

Declaring that Applicant’s agreement regarding business finance between Applicant and First Respondent, was transferred from Applicant to Second Respondent or Applicant was substituted as a party thereto by the Second Respondent. (sic)

Declaring that if First Respondent has any cause of action, same cannot be proceeded with against Applicant.

Alternatively, declaring that First Respondent’s debt against Applicant has prescribed and no longer executable due to the lapse of time within which to execute.

Setting aside the warrant of execution as well as the notice of sale in execution, dated 19th March 2002 and 9th May 2002.

Rescinding the judgment granted against Applicant on the 22nd June 1998 under Case Number 773/98, in the Magistrate’s Court for the district Odi. Ordering Second Respondent to discover all returned cheques that he issued to First Respondent personally or on behalf of Bitos CC in favour of First Respondent; the lease agreement that he had with JHI Property Services and all other documents and correspondence which was exchanged between First and Second Respondents and other persons which are relevant to this matter, between February 1998 till 31st May 2002. Interdicting the Sheriff Odi from proceeding with the sale in execution, of the immovable property known as 375 Unit U, Mabopane, North West Province, which belongs to Applicant. Ordering First Respondent to pay the costs of this application.” The following order, per agreement between the parties hereto, was made by this Court on the 11th June 2002: “ 1. That the 1st Respondent will cause the Sale in Execution scheduled for 13th June 2002 to be stayed pending the final outcome of this application; That the normal dies be applicable for the filing of Answering and Replying Affidavits;

Rescinding the judgment granted against Applicant on the 22nd June 1998 under Case Number 773/98, in the Magistrate’s Court for the district Odi.

Ordering Second Respondent to discover all returned cheques that he issued to First Respondent personally or on behalf of Bitos CC in favour of First Respondent; the lease agreement that he had with JHI Property Services and all other documents and correspondence which was exchanged between First and Second Respondents and other persons which are relevant to this matter, between February 1998 till 31st May 2002.

Interdicting the Sheriff Odi from proceeding with the sale in execution, of the immovable property known as 375 Unit U, Mabopane, North West Province, which belongs to Applicant.

Ordering First Respondent to pay the costs of this application.”

The following order, per agreement between the parties hereto, was made by this Court on the 11th June 2002:

“ 1. That the 1st Respondent will cause the Sale in Execution scheduled for 13th June 2002 to be stayed pending the final outcome of this application;

That the normal dies be applicable for the filing of Answering and Replying Affidavits;

That the matter be postponed sine die; That the costs be reserved.” The matter was again enrolled on the 12th December 2002 and the following order, was made per agreement between the two parties: “1. That this matter be postponed to 13 February 2003; That the Applicant be ordered to pay the wasted costs and the costs of today’s application. That the Applicant be afforded the opportunity to submit reasons to this Honourable Court on 13 February 2003 why such costs should not be awarded on a costs de bonis propiis scale; That such reasons and or representations be filed and served on the First Respondent two weeks prior to 13 February 2003 to enable the First Respondent to respond thereto.” At the hearing of this application on the 13th February 2003, Mr Bokaba on behalf of the Applicant, asked the Court to grant an order against the Applicant’s Attorneys for payment of the wasted costs and costs occasioned by the postponement of the 12th December 2002, de bonis propiis.

That the matter be postponed sine die;

That the costs be reserved.”

The matter was again enrolled on the 12th December 2002 and the following order, was made per agreement between the two parties:

“1. That this matter be postponed to 13 February 2003;

That the Applicant be ordered to pay the wasted costs and the costs of today’s application.

That the Applicant be afforded the opportunity to submit reasons to this Honourable Court on 13 February 2003 why such costs should not be awarded on a costs de bonis propiis scale;

That such reasons and or representations be filed and served on the First Respondent two weeks prior to 13 February 2003 to enable the First Respondent to respond thereto.”

At the hearing of this application on the 13th February 2003, Mr Bokaba on behalf of the Applicant, asked the Court to grant an order against the Applicant’s Attorneys for payment of the wasted costs and costs occasioned by the postponement of the 12th December 2002, de bonis propiis.

Mr Maree, on behalf of the First Respondent, intimated that after the postponement of the 13th June 2002 the following proposal, per letter dated 5th August 2002 (Annexure “LFS 1” to the Answering the Affidavit), was made to the Applicant’s Attorneys by First Respondent’s Attorneys: “We advise that we are of the opinion that the matter can be resolved in the following manner: That you take an order in terms of your paragraph 7 of your Notice of Motion. That the matter is to proceed in the Magistrate’s Court as a contested action and the normal dies applicable for filing of further pleadings after the order referred to above is granted. We are of the opinion that you are not entitled to paragraphs 3, 4, and 5 of your Notice of Motion in these proceedings. That each party pays its own costs. That with regard to your client’s housing loan your client approach our client URGENTLY to make arrangements for the payment thereof. Should your client not find these suggestions acceptable, that we file papers and the matter be proceeded with.” The response from the Applicant’s Attorney, dated 13th August 2002 (Annexure “LFS 2") was as follows:

Mr Maree, on behalf of the First Respondent, intimated that after the postponement of the 13th June 2002 the following proposal, per letter dated 5th August 2002 (Annexure “LFS 1” to the Answering the Affidavit), was made to the Applicant’s Attorneys by First Respondent’s Attorneys:

“We advise that we are of the opinion that the matter can be resolved in the following manner:

That you take an order in terms of your paragraph 7 of your Notice of Motion.

That the matter is to proceed in the Magistrate’s Court as a contested action and the normal dies applicable for filing of further pleadings after the order referred to above is granted.

We are of the opinion that you are not entitled to paragraphs 3, 4, and 5 of your Notice of Motion in these proceedings.

That each party pays its own costs.

That with regard to your client’s housing loan your client approach our client URGENTLY to make arrangements for the payment thereof.

Should your client not find these suggestions acceptable, that we file papers and the matter be proceeded with.”

The response from the Applicant’s Attorney, dated 13th August 2002 (Annexure “LFS 2") was as follows:

“Your proposals are unacceptable. Respondent must file its answering affidavit within 5 days, from date hereof, henceforth the rules of court must be complied with.” 7. Subsequently, the First Respondent’s Answering Affidavit and Supporting documents, dated 20th August 2002 were filed. The matter was set down on the 13th November 2002, for hearing on the 12th December 2002 by the First Respondent’s Attorneys, and the First Respondent’s Heads of Argument were filed on the 5th December 2002. At the hearing of the application on the 12th December 2002, the Applicant had neither filed his Replying Affidavit nor Heads of Argument. It is for this reason that the order dated 12th December 2002 which was confirmed on the 13th February 2003 was made de bonis propiis against Applicant’s Attorneys. Prior to the postponement of the matter on the 12th December 2002, the Applicant’s Replying Affidavit was filed with the Registrar on the 10th December 2002, which was already out of time. No application for condonation for the late filing was made. At the hearing of this application which was before me on the 13th February 2003, no application for condonation was made for the late filing of the Replying Affidavit. It was for this reason that I disallowed the Replying Affidavit, and it will therefore not be considered for the purpose adjudicating this matter. The Applicant’s case in the Founding Affidavit is to the effect that:

“Your proposals are unacceptable.

Respondent must file its answering affidavit within 5 days, from date hereof, henceforth the rules of court must be complied with.”

7. Subsequently, the First Respondent’s Answering Affidavit and Supporting documents, dated 20th August 2002 were filed. The matter was set down on the 13th November 2002, for hearing on the 12th December 2002 by the First Respondent’s Attorneys, and the First Respondent’s Heads of Argument were filed on the 5th December 2002.

At the hearing of the application on the 12th December 2002, the Applicant had neither filed his Replying Affidavit nor Heads of Argument. It is for this reason that the order dated 12th December 2002 which was confirmed on the 13th February 2003 was made de bonis propiis against Applicant’s Attorneys.

Prior to the postponement of the matter on the 12th December 2002, the Applicant’s Replying Affidavit was filed with the Registrar on the 10th December 2002, which was already out of time. No application for condonation for the late filing was made. At the hearing of this application which was before me on the 13th February 2003, no application for condonation was made for the late filing of the Replying Affidavit. It was for this reason that I disallowed the Replying Affidavit, and it will therefore not be considered for the purpose adjudicating this matter.

The Applicant’s case in the Founding Affidavit is to the effect that:

(a) He entered into a loan contract with the First Respondent for a total amount of R350 000-00 plus an amount not exceeding R35 000-00 which was advanced to him by the First Respondent which agreement is contained in a written contract dated 30 August 1996, Annexure “TJM 1" (Written Contract); (b) He hypothecated site 375, Block U, Mabopane his private dwelling, under Mortgage Bond for a debt of R60 000-00 on the 3rd September 1996, in favour of the First Respondent; (c) He conducted a Chicken Licken business but experienced financial problems towards the end of 1997 to the extent that he was unable to meet his financial obligations towards the First Respondent; (d) He approached the Acting Manager at the Small Business Unit of the First Respondent’s Ga-Rankuwa offices, and explained his plight and financial problems to him. He was then advised by the Acting Manager of the First Respondent to find a person or substitute who would take over his business, inheriting both the assets and the liabilities of the business. The identity of the Acting Manager is not disclosed;

(a) He entered into a loan contract with the First Respondent for a total amount of R350 000-00 plus an amount not exceeding R35 000-00 which was advanced to him by the First Respondent which agreement is contained in a written contract dated 30 August 1996, Annexure “TJM 1" (Written Contract);

(b) He hypothecated site 375, Block U, Mabopane his private dwelling, under Mortgage Bond for a debt of R60 000-00 on the 3rd September 1996, in favour of the First Respondent;

(c) He conducted a Chicken Licken business but experienced financial problems towards the end of 1997 to the extent that he was unable to meet his financial obligations towards the First Respondent;

(d) He approached the Acting Manager at the Small Business Unit of the First Respondent’s Ga-Rankuwa offices, and explained his plight and financial problems to him. He was then advised by the Acting Manager of the First Respondent to find a person or substitute who would take over his business, inheriting both the assets and the liabilities of the business. The identity of the Acting Manager is not disclosed;

(e) He acted as advised and the business (assets and liabilities), was then taken over and conducted by the Second Respondent after an oral agreement was entered into between the Second Respondent and the Acting Manager of the First Respondent. It was agreed that Second Respondent would deposit an initial amount of R80 000-00 which amount was deposited in the First Respondent’s bank account on the 9th November 1998; (f) He, Applicant, was subsequently served with a summons on the 27th May 1998 by the First Respondent for breach of contract based on the written contract. The summons was for the payment of the arrear amounts owing and for an order declaring the Applicant’s immovable property, which was hypothecated under the Mortgage Bond executable; (g) Applicant then approached the Legal Official of the First Respondent, a certain M S “Wing” Phiri (Mr Phiri) at the Ga-Rankuwa offices who undertook to stay the proceedings. This was done by Mr Phiri per letters dated 14 July 1998 and 28 July 1998 to First Respondent’s Attorneys and the Applicant respectively; (h) The Second Respondent took over the business on the 1 August 1998 and he continued paying the Applicant’s debt to the First Respondent. A total amount of R320 392-00 was paid as at 31 March 2002 and the balance outstanding was R302 752-41;

(e) He acted as advised and the business (assets and liabilities), was then taken over and conducted by the Second Respondent after an oral agreement was entered into between the Second Respondent and the Acting Manager of the First Respondent. It was agreed that Second Respondent would deposit an initial amount of R80 000-00 which amount was deposited in the First Respondent’s bank account on the 9th November 1998;

(f) He, Applicant, was subsequently served with a summons on the 27th May 1998 by the First Respondent for breach of contract based on the written contract. The summons was for the payment of the arrear amounts owing and for an order declaring the Applicant’s immovable property, which was hypothecated under the Mortgage Bond executable;

(g) Applicant then approached the Legal Official of the First Respondent, a certain M S “Wing” Phiri (Mr Phiri) at the Ga-Rankuwa offices who undertook to stay the proceedings. This was done by Mr Phiri per letters dated 14 July 1998 and 28 July 1998 to First Respondent’s Attorneys and the Applicant respectively;

(h) The Second Respondent took over the business on the 1 August 1998 and he continued paying the Applicant’s debt to the First Respondent. A total amount of R320 392-00 was paid as at 31 March 2002 and the balance outstanding was R302 752-41;

(i) He further alleges that he was amazed when he was served on the 29th March 2002 with a Warrant of Execution and a Notice of Attachment dated 22 March 2002 and 28 March 2002 respectively. He was not aware of the Default Judgment taken against him by the First Respondent at the Magistrates Court. The property of the Applicant was to be auctioned on the 13th June 2002. The sale in execution was stayed on the 11th June 2002 by an order of this Court. In the written and oral submissions on behalf of the Applicant, it is argued that the Applicant’s assets and liabilities in the business, and the security given for the debt were discharged when the business was transferred to the Second Respondent.

Alternatively that if I do not make such a finding, in the First Applicant’s favour then I should find that the debt has

prescribed. The debt was due on the 22nd June 1998 and the Warrant of Execution was issued on the 19th March 2002. In response to the Applicant’s allegations, Mr Erasmus Albertus Schoeman (Mr Schoeman) on behalf of the First Respondent, raised preliminary point to the effect that the Applicant had not laid grounds or circumstances which would allow this Court to grant the rescission of the Magistrates Court judgment in accordance with Rule 49 (1) and section 36 of the Magistrates Court Act. On the merits, the First Respondent alleges that he has no knowledge of the oral contract entered into between the Acting Manager, the Applicant and the Second Respondent. He avers that in terms of Clause 23 of the written contract, no variation to the terms of the contract would be valid unless reduced in writing and signed by the parties hereto; that their contract is still in force and binding in the absence of such variation.

(i) He further alleges that he was amazed when he was served on the 29th March 2002 with a Warrant of Execution and a Notice of Attachment dated 22 March 2002 and 28 March 2002 respectively. He was not aware of the Default Judgment taken against him by the First Respondent at the Magistrates Court. The property of the Applicant was to be auctioned on the 13th June 2002. The sale in execution was stayed on the 11th June 2002 by an order of this Court.

In the written and oral submissions on behalf of the Applicant, it is argued that the Applicant’s assets and liabilities in the business, and the security given for the debt were discharged when the business was transferred to the Second Respondent.

Alternatively that if I do not make such a finding, in the First Applicant’s favour then I should find that the debt has

prescribed. The debt was due on the 22nd June 1998 and the Warrant of Execution was issued on the 19th March 2002.

In response to the Applicant’s allegations, Mr Erasmus Albertus Schoeman (Mr Schoeman) on behalf of the First Respondent, raised preliminary point to the effect that the Applicant had not laid grounds or circumstances which would allow this Court to grant the rescission of the Magistrates Court judgment in accordance with Rule 49 (1) and section 36 of the Magistrates Court Act.

On the merits, the First Respondent alleges that he has no knowledge of the oral contract entered into between the Acting Manager, the Applicant and the Second Respondent. He avers that in terms of Clause 23 of the written contract, no variation to the terms of the contract would be valid unless reduced in writing and signed by the parties hereto; that their contract is still in force and binding in the absence of such variation.

The Applicant approached this Court on an urgent basis on the 11th June 2002 for the purpose of stopping the sale of his house which was to take place on the 13th June 2002. He alleges that the judgment by default which was granted by the Magistrates Court on the 22nd June 1998, was obtained fraudulently. The Warrant of Execution, which was issued on the 22nd March 2002, was as a result of the Default Judgment which was granted almost three years prior to the Warrant of Execution being issued. It was therefore convenient for the Applicant to bring both the application for setting aside the Warrant of Execution as well as the Sale in Execution, and an order for the rescission of the judgment granted against the Applicant on the 22nd June 1998 to this Court. Compare Yokelo v Bodlani 1990 (3) SA 970 at 974. With regard to the Default Judgment and the subsequent Warrant of Execution issued on the 19th March 2002, it is important to note the following: (a) The Warrant of Execution was re-issued on the 19th March 2002 and dated 22nd March 2002; (b) It is not known, from the papers filed, as to when the previous Warrant of Execution was issued; (c) Section 63 of the Magistrates Courts Act No 32 of 1944 (The Act), provides that:

The Applicant approached this Court on an urgent basis on the 11th June 2002 for the purpose of stopping the sale of his house which was to take place on the 13th June 2002. He alleges that the judgment by default which was granted by the Magistrates Court on the 22nd June 1998, was obtained fraudulently. The Warrant of Execution, which was issued on the 22nd March 2002, was as a result of the Default Judgment which was granted almost three years prior to the Warrant of Execution being issued. It was therefore convenient for the Applicant to bring both the application for setting aside the Warrant of Execution as well as the Sale in Execution, and an order for the rescission of the judgment granted against the Applicant on the 22nd June 1998 to this Court. Compare Yokelo v Bodlani 1990 (3) SA 970 at 974.

With regard to the Default Judgment and the subsequent Warrant of Execution issued on the 19th March 2002, it is important to note the following:

(a) The Warrant of Execution was re-issued on the 19th March 2002 and dated 22nd March 2002;

(b) It is not known, from the papers filed, as to when the previous Warrant of Execution was issued;

(c) Section 63 of the Magistrates Courts Act No 32 of 1944 (The Act), provides that:

“ Execution against property may not be issued upon a judgment after three years from the day on which it was pronounced or on which the last payment in respect thereof was made, except upon an Order of the Court in which judgment was pronounced or of any Court having jurisdiction, in respect of the judgment debtor, on the application and at the expense of the judgment creditor, after due notice to the judgment debtor to show cause why execution should not be issued.” (My emphasis). (d) Assuming that the previous Warrant of Execution was not timeously obtained after the Default Judgment was granted, it would then become superannuated if not acted upon three years from the date it was granted. (e) According to the Applicant, the Default Judgment was taken against him on the 22nd June 1998; thereafter there were verbal negotiations and or agreements between him and the First Respondent which is evident from the correspondence dated 14 July 1998, 22 July 1998 and 28 July 1998 between the Applicant, Mr Phiri on behalf of the First Respondent and the latter’s legal representative. The letters were allegedly written as a result of the Default Judgment. ( f) There is evidence on record (Annexure “TJM7") to substantiate the fact that subsequent to the Default Judgment of the 22nd June 2002 being granted, several payments were made by or on behalf of the Applicant’s account up

to and including 31st March 2002; (g) It therefore appears, on the face of the information available, that the First Respondent was obliged to duly notify the Applicant in terms of section 63 of the Act and show cause as to why the Warrant of Execution should not be issued. (h) In terms of section 66 (4) of the Act, if a sale in execution of immovable property does not take place within a period of one year from the date of attachment, such attachment shall lapse;

“ Execution against property may not be issued upon a judgment after three years from the day on which it was pronounced or on which the last payment in respect thereof was made, except upon an Order of the Court in which judgment was pronounced or of any Court having jurisdiction, in respect of the judgment debtor, on the application and at the expense of the judgment creditor, after due notice to the judgment debtor to show cause why execution should not be issued.” (My emphasis).

(d) Assuming that the previous Warrant of Execution was not timeously obtained after the Default Judgment was granted, it would then become superannuated if not acted upon three years from the date it was granted.

(e) According to the Applicant, the Default Judgment was taken against him on the 22nd June 1998; thereafter there were verbal negotiations and or agreements between him and the First Respondent which is evident from the correspondence dated 14 July 1998, 22 July 1998 and 28 July 1998 between the Applicant, Mr Phiri on behalf of the First Respondent and the latter’s legal representative. The letters were allegedly written as a result of the Default Judgment.

( f) There is evidence on record (Annexure “TJM7") to substantiate the fact that subsequent to the Default Judgment of the 22nd June 2002 being granted, several payments were made by or on behalf of the Applicant’s account up to and including 31st March 2002;

(g) It therefore appears, on the face of the information available, that the First Respondent was obliged to duly notify the Applicant in terms of section 63 of the Act and show cause as to why the Warrant of Execution should not be issued.

(h) In terms of section 66 (4) of the Act, if a sale in execution of immovable property does not take place within a period of one year from the date of attachment, such attachment shall lapse;

This period may be extended by further periods of one year each, upon application by the judgment creditor and after due notice of such application has been given to the judgment debtor. See section 66 (5) of the Act. It would seem such procedure was not followed in this case when the First Respondent applied for the re-issued Warrant of Execution (Annexure “TJM 8"). A valid judgment is a prerequisite for the granting of a Warrant of Execution. See section 66 (1). It is difficult, with the information placed before me, for one to assess whether the Default Judgment was correctly granted because of the following: (a) The Applicant was served with the summons on the 27th April 1998; (b) Default Judgment against him was granted on the 22nd June 1998; (c) The correspondence between the Applicant and the First Respondent’s representative and attorneys, wherein the abeyance of the proceedings was discussed and agreed upon, is between the periods 29th June 1998 and 28th July 1998; (d) According to Annexure “TJM 7", (the transcript of payments made by Applicant) Applicant continued to make payments after the service of the summons and after the Default Judgment was granted; (e) This matter may be cleared by evidence in action proceedings.

This period may be extended by further periods of one year each, upon application by the judgment creditor and after due notice of such application has been given to the judgment debtor. See section 66 (5) of the Act.

It would seem such procedure was not followed in this case when the First Respondent applied for the re-issued Warrant of Execution (Annexure “TJM 8").

A valid judgment is a prerequisite for the granting of a Warrant of Execution. See section 66 (1). It is difficult, with the information placed before me, for one to assess whether the Default Judgment was correctly granted because of the following:

(a) The Applicant was served with the summons on the 27th April 1998;

(b) Default Judgment against him was granted on the 22nd June 1998;

(c) The correspondence between the Applicant and the First Respondent’s representative and attorneys, wherein the abeyance of the proceedings was discussed and agreed upon, is between the periods 29th June 1998 and 28th July 1998;

(d) According to Annexure “TJM 7", (the transcript of payments made by Applicant) Applicant continued to make payments after the service of the summons and after the Default Judgment was granted;

(e) This matter may be cleared by evidence in action proceedings.

For the above reasons, I find that the Warrant of Execution was not properly granted by the Court a quo and also find that it is not possible for me to rescind the default judgment granted on the 22nd June 1998 on the scanty information placed on record. I nevertheless take note of the fact that the First Respondent has conceded that the Warrant of Execution as well as the Sale in Execution dated 19 March 2002 and 9 May 2002 respectively, be set aside. With regard to the prayers 3 and 4 of the Notice of Motion, I make the following remarks: (a) Evidence has not been placed before me with regard to the circumstances and the facts of the oral agreement between the Applicant, the First Respondent’s representative and the Second Respondent; (b) The First Respondent has referred to a clause 23 in the Written Contract which nullifies an oral agreement which purports to vary the terms of the contract unless reduced in writing and signed by the parties to the written contract. (c) It will, therefore be inappropriate to grant an order based on the dispute of fact and papers lacking of detail with regard to these aspects. As far as prayer 5 (“Declaring the Respondent’s debt against Applicant has prescribed and no longer executable due to the lapse of time within which to execute”) is concerned:

For the above reasons, I find that the Warrant of Execution was not properly granted by the Court a quo and also find that it is not possible for me to rescind the default judgment granted on the 22nd June 1998 on the scanty information placed on record. I nevertheless take note of the fact that the First Respondent has conceded that the Warrant of Execution as well as the Sale in Execution dated 19 March 2002 and 9 May 2002 respectively, be set aside.

With regard to the prayers 3 and 4 of the Notice of Motion, I make the following remarks:

(a) Evidence has not been placed before me with regard to the circumstances and the facts of the oral agreement between the Applicant, the First Respondent’s representative and the Second Respondent;

(b) The First Respondent has referred to a clause 23 in the Written Contract which nullifies an oral agreement which purports to vary the terms of the contract unless reduced in writing and signed by the parties to the written contract.

(c) It will, therefore be inappropriate to grant an order based on the dispute of fact and papers lacking of detail with regard to these aspects.

As far as prayer 5 (“Declaring the Respondent’s debt against Applicant has prescribed and no longer executable due to the lapse of time within which to execute”) is concerned:

(a) I agree with Mr Maree’s submissions that in terms of section 11 (a) (ii) of the Prescription Act, 1969 (Act 68 of 1969), a judgment debt only prescribes after thirty (30) years. (b) My remarks in paragraph 17 supra with regard to the default judgment granted on the 22nd June 1998 are apposite. The Second Respondent did not make any appearance and for the same reasons mentioned in paragraph 18 above, I am not in a position to grant the order in terms of paragraph 8 of the Notice of Motion. As far as costs are concerned, the First Respondent after the postponement of this matter on the 11th June 2002, and having acceded to Applicant’s prayer to cause the Sale in Execution scheduled for the 13 June 2002 to be set aside, made an attempt to mitigate the costs by initiating negotiations with the Applicant for the purpose of reaching a settlement. This is apparent from Annexure “LF51", dated the 5th August 2002. The Applicant’s Attorneys adopted a recalcitrant attitude and enrolled the matter for hearing on the 12th December 2002 and subsequently for hearing on the 13th February 2003. Applicant has succeeded partly up to the stage when the Sale in Execution was set aside, but failed to mitigate the costs thereafter through the proposed offer for settlement by the First Respondent, when it would have been reasonable to accept the proposal in the circumstances.

(a) I agree with Mr Maree’s submissions that in terms of section 11 (a) (ii) of the Prescription Act, 1969 (Act 68 of 1969), a judgment debt only prescribes after thirty (30) years.

(b) My remarks in paragraph 17 supra with regard to the default judgment granted on the 22nd June 1998 are apposite.

The Second Respondent did not make any appearance and for the same reasons mentioned in paragraph 18 above, I am not in a position to grant the order in terms of paragraph 8 of the Notice of Motion.

As far as costs are concerned, the First Respondent after the postponement of this matter on the 11th June 2002, and having acceded to Applicant’s prayer to cause the Sale in Execution scheduled for the 13 June 2002 to be set aside, made an attempt to mitigate the costs by initiating negotiations with the Applicant for the purpose of reaching a settlement. This is apparent from Annexure “LF51", dated the 5th August 2002. The Applicant’s Attorneys adopted a recalcitrant attitude and enrolled the matter for hearing on the 12th December 2002 and subsequently for hearing on the 13th February 2003.

Applicant has succeeded partly up to the stage when the Sale in Execution was set aside, but failed to mitigate the costs thereafter through the proposed offer for settlement by the First Respondent, when it would have been reasonable to accept the proposal in the circumstances.

For the above reasons, I accordingly make the following order: “(a) That the Applicant’s non compliance with the normal forms and service is condoned in terms of Rule 6 (12); (b) Applicant is granted leave to bring this application against the First Respondent; (c) Setting aside: (i) The re-issued Warrant of Execution by the Magistrates Court under Case No 773/98 dated 19th March 2002; (ii) The Notice of Sale in Execution dated 9th May 2002 under Magistrates Court Case No 773/98; and declaring same null and void and of no force and effect. (d) Prayers 3, 4, 5, 6, 7 and 8 of the Notice of Motion are dismissed with costs. (e) Defendant is ordered to pay costs occasioned by the application up to and including the 11th June 2002;

For the above reasons, I accordingly make the following order:

“(a) That the Applicant’s non compliance with the normal forms and service is condoned in terms of Rule 6 (12);

(b) Applicant is granted leave to bring this application against the First Respondent;

(c) Setting aside:

(i) The re-issued Warrant of Execution by the Magistrates Court under Case No 773/98 dated 19th March 2002;

(ii) The Notice of Sale in Execution dated 9th May 2002 under Magistrates Court Case No 773/98;

and declaring same null and void and of no force and effect.

(d) Prayers 3, 4, 5, 6, 7 and 8 of the Notice of Motion are dismissed with costs.

(e) Defendant is ordered to pay costs occasioned by the application up to and including the 11th June 2002;

(f) Applicant is ordered to pay costs of suit incurred in relation to the subsequent proceedings after the 11th June 2002. The wasted costs and the costs occasioned by the postponement of the 12th December 2002 shall be costs de bonis propiis against the Applicant’s attorneys of record.

M M

LEEUW

JUDGE OF

THE HIGH COURT Applicant’s Attorneys : Motlhabane Makgale 1st Respondent’s Attorneys : Smit Stanton Inc

(f) Applicant is ordered to pay costs of suit incurred in relation to the subsequent proceedings after the 11th June 2002. The wasted costs and the costs occasioned by the postponement of the 12th December 2002 shall be costs de bonis propiis against the Applicant’s attorneys of record.

M M

LEEUW

JUDGE OF

THE HIGH COURT

Applicant’s Attorneys : Motlhabane Makgale

1st Respondent’s Attorneys : Smit Stanton Inc