Mbuwako v Sheriff of the High Court (Mthatha, Eastern Cape) and Others (98/2016) [2020] ZAECGHC 15 (25 February 2020)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case No: 98/2016

Date heard: 20 February 2020

Date delivered: 25 February 2020

In the matter between:

BONGIWE FAVOURITE MBUWAKO Applicant and THE SHERIFF OF THE HIGH COURT (MTHATHA, EASTERN CAPE) First Respondent THE REGISTRAR OF DEEDS MTHATHA Second Respondent THE PURCHASER OF ERF 2553 MTHATHA, MTHATHA, TOWNSHIP EXTENSION 8, KING SABATA DALINDYEBO MUNICIPALITY DISTRICT OF MTHATHA, PROVINCE OF THE EASTERN CAPE HELD BY DEED OF TRANSFER NO.: T533/2010 Third Respondent NEDBANK LIMITED (Reg No. 1951/000009/06) Fourth Respondent

JUDGMENT

LOWE, J:

INTRODUCTION

[1] The Applicant seeks the following relief:

“1. The Order of this Honourable Court granted by the Honourable Justice Mr Plasket J., on the 28 February 2019, be and is hereby rescinded and set aside.

2. The Writ and/or Warrant of Execution issued in favour of the 4th Respondent in pursuance of the said Order sought to be rescinded be and is hereby declared as of nullity and set aside.

3. The sale of a house of the Applicant, that being 2553, Umthatha, King Sabata Dalindyebo Municipality, district of Mthatha, in extent 1200 (One Thousand Two Hundred) square metres, situated at 48 Willow Driver, Fortgale, Mthatha by the 1st Respondent be declared as of nullity and set aside, and/or alternatively;

4. The 1st Respondent be interdicted and restrained from conducting the sale of the house of the Applicant as aforesaid, pending determination and finalization of this rescission application.

5. The 2nd Respondent be interdicted and restrained from effecting the transfer of the house of the Applicant as aforesaid, pending the determination

and/or finalization of this application and/or alternatively, if the transfer has been effected.

6. The transfer of the house of the Applicant as aforesaid be declared as of nullity and set aside.”

[2] In essence to understand this, the order of Plasket J of 28 February 2019 must be analyzed with its background.

[3] Summons issued against Applicant by Fourth Respondent for recovery of the loan on 12 January 2016 secured by mortgage bond over the property concerned.

[4] Default Judgment was sought on 24 May 2016 and postponed to 28 June 2016. Notice to Oppose was filed on that day.

[5] Summary Judgment proceedings were brought, for hearing on 26 July 2016, and after various delays and postponements due to Applicant’s actions, was finally heard on 22 March 2017 and granted with an execution order against the property.

[6] On 16 November 2017 Applicant applied for recession of the Summary Judgment order – the parties reached an agreement of settlement however and execution was stayed.

[7] Applicant did not honour the agreement however.

[8] On 14 August 2018 Applicant sought an order staying the sale in execution and this was dismissed. (The property was sold in August 2018.)

[9] On 4 October 2018 Applicant launched an application and sought an order declaring the sale in execution null and void. This was opposed by Fourth Respondent.

[10] This is the order which is the subject matter of this Application. It was set down for hearing on 28 February 2019 before Plasket J.

[11] Applicant’s out of town attorney (local Attorney Yokwana) CSM “withdrew” (14 February 2018). It was pointed out that they were not her attorney of record.

[12] Applicant alleged she was not aware of this withdrawal which is strongly contested.

[13] On 28 February 2019 there was no appearance for Applicant. It was her Application that was dismissed (not a “Default Judgment”).

[14] She alleges that she was unaware that she was not represented at the hearing but says, in any event, that she was ill and could not attend, now producing a medical certificate by Dr Songca dated 25 February 2019 stating that she was unfit to work from that date to 2 March 2019. This fact is not contested on the papers. That she was ill, and was absent for that reason, was not known by Plasket J.

[15] She also alleges non-receipt of a Section 129 NCA Notice.

[16] She alleges that she could not pay “premiums” due on the loan after 1 November 2016 as Fourth Respondent “failed” to accept same.

[17] She says her arrears were R30,276.00 as of 15 September 2016 and that she paid R40,000.00 on 9 November 2016.

[18] She says thus that the Application before Plasket J should not have been dismissed in her absence.

[19] She alleges various irregularities relevant to the sale in execution.

[20] Each of these issues is contested by Fourth Respondent.

THE APPROACH TO APPLICATIONS

[21] Generally applications are not designed to resolve factual disputes between the parties and are decided on common cause facts. Probabilities and onus issues are not amenable to being determined in motion proceedings[1].

[22] As is set out in Civil Procedure in the Supreme Court[2]:

“It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.” [3]

[23] The Court has to accept those facts averred by Applicant that were not disputed by Respondent, and Respondents’ version insofar as it was plausible, tenable and credible[4].

[24] This however is not the end of the matter as is pointed out in Harms Civil Procedure in the Supreme Court [5] as follows:

“It is accordingly generally undesirable to endeavour to decide an application upon affidavit where the material facts are in dispute.

In such a case it is preferable that oral evidence be led to enable the court to see and hear the witnesses before coming to a

conclusion.[6] On the other hand, it is equally undesirable for a court to take all disputes of fact at their face value. If this were done a respondent might be able to raise fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant.[7] In every case the court should examine the alleged disputes of fact and determine whether in truth there is a real[8] issue of fact that cannot be satisfactorily resolved without the aid of oral evidence.[9] Whether a factual dispute exists is not a discretionary decision; it is a question of fact and a jurisdictional pre-requisite for the exercise of the discretion given by the rule.[10] It is not a question of any difference of character between the various kinds of claims being enforced, but a question of the proper method of determining in each case the facts upon which any claim depends.[11]”

[25] In this matter there are no relevant irresoluble factual disputes which are real and genuine.

THE ANALYSIS

[26] It is necessary to analyze what order is sought to be implicated and set aside and on what basis.

[27] The entire Application is premised upon the order of Plasket J of 28 February 2019 dismissing her Application in absentia (to declare the sale null and void).

[28] Effectively the sale was pursuant to the order of Majiki J on 22 March 2017, granting Summary Judgment with execution. This order is not attacked.

[29] The Application before Plasket J was to set aside the sale in execution and was premised, not on the setting aside of the Summary Judgment order, but on so-called irregularities of the sale, its manner and form as per Rule 46, and primary residence issues.

[30] At no time then, relevant hereto, has the Summary Judgment order of Majiki J been sought to be attacked, which order underlies the entire sale and judgment issue.

[31] The setting aside of the Plasket J order, dismissing her Application in absentia in respect of defects in the sale itself, does not address the main summary judgment (Majiki J) entitling Fourth Respondent to proceed, which stands accordingly.

[32] Further the Plasket J judgment was not a default judgment at common law, being the dismissal of Applicant’s Application and not a judgment against her. That this cannot be attacked and set aside under the common law is clear from the common law requirements for same[12].

[33] The only possible way forward is then Rule 42(1)(a). The purpose of the Rule is to expeditiously correct an obviously wrong judgment or order (erroneously sought). The Court has a discretion.

[34] If a case is in fact made out herefor, to set aside the dismissal of the Application, it would have no effect on the Summary Judgment itself which stands.

[35] The only issue before Plasket J was the alleged unlawfulness of the sale process itself and not the Summary Judgment.

[36] That being so, many of the issues raised in this Application, for example, the NCA Section 129 notice issue, are irrelevant as these adhere only to the Summary Judgment issue. Similarly the allegation that her payments were rejected and effectively that she was not in default.

[37] This leaves for consideration only the allegation that she did not know that she was unrepresented before Plasket J and/or was not present as she was ill. This is in fact the crux of this matter notwithstanding the varied and lengthy papers and submissions.

[38] Were I to accept that there is a case herefor, the Plasket J Order was given on 28 February 2019 and Fourth Respondent argues that the Application was brought after the lapse of a reasonable period. Applicant says she became aware hereof in July 2019. Her Application was launched at the end of September 2019. Not only can Applicant’s assertion of being unaware that she was not represented before Plasket J be safely rejected but also that she was unaware of the result thereof till July 2019. I say this for the following reasons:

[38.1] I agree that Applicant’s assertion that she was unaware of her attorneys withdrawal, on a proper approach to the papers, is unacceptable and clearly not so.

[38.2] Her then attorney Moyo has said under oath that she decided to appoint new attorneys on 20 December 2018 and that after 25 January 2019, and until 16 February 2019, he was in consultation with Applicant, thereafter withdrawing, but only after he made Applicant aware that the matter was to be heard on 28 February 2019.

[38.3] Further on the papers it cannot be gainsaid that Attorney Simao, for Applicant, asked that the matter be postponed as he was taking this over (on 26 February 2019). This request was refused and Fourth Respondent’s Attorney was informed by Simao that Simao would not be coming on record. There can be no doubt that Applicant must have been aware hereof. Her assertion that she was under the impression that CSM had not withdrawn does not withstand scrutiny nor can it possibly be that Simao did not keep her informed of her predicament.

[38.4] In any event, knowing of the set down for 28 February 2019, and thereafter, she apparently enquired of CSM (she does not say when) what had happened and says they “could not provide her with a clear response”, whatever that means.

[38.5] She then did nothing until May 2019 when she asked her current attorney to investigate. Such attorney, she says, only did so in July 2019. There is no explanation for this delay at all.

[38.6] Her new attorneys were however clearly aware of all the facts in July 2019 even on her own version. Her Application was launched on 27 September 2019.

WAS THE PLASKET J JUDGMENT ERRONEOUSLY GRANTED

[39] Mr Cole argued strenuously that Applicant was clearly fully aware that she was not represented at Court on 28 February 2019. This follows inevitably from the notices of withdrawal, one bearing her email address, as also the affidavit of Mr Moyo of CSM Attorneys and the correspondence from Attorney Simao, who clearly has nothing to do with CSM Attorneys.

[40] In the circumstances Applicant was clearly aware that when the matter was called she would be unrepresented and would have to be personally present or suffer the consequences.

[41] However there can be little doubt that had Plasket J been informed that Applicant was ill, and had been certified unfit for work, that he would inevitably have deemed it proper to postpone the matter to a date after Applicant’s recovery, more especially as it was clear that her attorneys had withdrawn very shortly prior to 28 February 2019.

[42] Whilst Mr Cole argued that I should disregard the allegation of illness and certificate there is no basis upon which I can do so, as appears more

fully below.

[43] It would seem thus that however dilatory Applicant may have been, I cannot doubt the content of the certificate or its consequences as to her inability to appear personally.

[44] Indeed crucially Fourth Respondent entirely fails to join issue with the existence, contents and effect of the medical certificate, in its answering papers and must thus be held not to have contested same. (The relevant paragraph and annexure deposed to by Applicant is simply not dealt with at all in answer.)

[45] In general terms a judgment is erroneously granted if there existed, at the time it was granted, a fact of which the Judge was unaware, which would have induced the Judge, if he had been aware thereof, not to grant the order[13].

[46] The result is that the order was thus erroneously sought and erroneously granted, dismissing her claim, as envisaged in Rule 42(1)(a).

DELAY

[47] The only remaining issue is whether the delay in bringing this Application is sufficient to defeat the above.

[48] I have a discretion in this regard and the purpose of the Rule is to expeditiously correct a wrong order.

[49] Such an Application however should be brought within a reasonable time[14].

[50] What constitutes a reasonable time depends on the facts of each case[15].

[51] In my view of the facts in this matter there is little to gainsay the Applicant’s concerted attempts to contest the manner of the sale of the property which is her family home.

[52] Whatever the issues concerning same may be, these should in all probability, in the interests of justice, be determined once and for all.

[53] Whilst there is merit in Mr Cole’s submission that there has been considerable delay and as I have analyzed above, I consider that all the circumstances dictate that Applicant should have her day in court in respect only of the issues raised in the application which served before Plasket J. I am of the view that the delay in launching this Application does not, in all the circumstances, constitute such delay as to non-suit Applicant, having regard to the clearly consistent attempts to challenge same, the changes in attorney, and that justice demands that she have the chance to ventilate such issues in respect of her primary residence. This finding is made narrowly in her favour in the exercise of my discretion.

[54] Both counsel argued that it was not appropriate for me to deal with the remaining issues raised in the Notice of Motion and that these must be determined in the Application relevant to the Notice of Motion dated 4 October 2018 (Case No.: 2016/98). I agree.

COSTS

[55] As to costs both parties submitted that these should follow the result. I do not agree. It seems to me that Fourth Respondent was perfectly reasonable in contesting the relief sought on the basis of unreasonable delay. In the circumstances it seems to me just and equitable were each party to pay their own costs occasioned hereby.

ORDER

[56] In the result, the following order issues:

1. The order of Plasket J given on 28 February 2019 in Application under Notice of Motion, dated 4 October 2018 (Case No. 2016/98), is rescinded as having been erroneously granted in Applicant’s absence.

2. The said Application is to be set down afresh for argument.

3. Each party is to pay their own costs occasioned hereby, being only the costs of this Rescission Application.

4. The costs of the proceedings before Plasket J are reserved for the proceedings referred to in paragraph 2 above.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Appearances:

Obo Applicant: Adv M Mhambi

Instructed by: Mbulelo Qotoyi Attorneys, Mthatha

c/o Yokwana Attorneys, Grahamstown

Obo 3rd & 4th Respondents: Adv S H Cole

Instructed by: Whitesides Attorneys, Grahamstown

[1] Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 A 634 – 635; National Director of Public Prosecutions v Zuma 2009 (2) SA 279 SCA [26]

[2] Harmse (Butterworths) B6.45

[3] Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA)

[4] Airports Company South Africa Soc Ltd v Airports Bookshops (Pty) Ltd t/a Exclusive Books [2016] 4 All SA 665 (SCA).

[5] Butterworths B6.45

[6] Frank v Ohlsson’s Cape Breweries Ltd 1924 AD 289 294; Plascon-Evans 634-635

[7] Petersen v Cuthbert & Co Ltd 1945 AD 420 428. A hollow denial or a detailed but fanciful and untenable version does not create a dispute of fact: Truth Verification Testing Centre CC v PSE Truth Detection Centre CC 1998 (2) SA 689 (W) 698; Rosen v Ekon [2000] 3 All SA 23 (W) 39; Ripoll-Dausa v Middleton NO [2005] 2 All SA 83 (C), 2005 (3) SA 141 (C).

[8] Rothman v Curr Vivier Inc 1997 (4) SA 540 (C) 551; Peterson v Cuthbert & Co Ltd supra 429; President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) pars 234-239. It has variously been called a “genuine” or “bona fide” dispute (“’n werklike of direkte feitegeskil”: Van der Merwe v Meyer 1971 (3) SA 22 (A) 26G) but the meanings are the same. Whether the converse of a “real” dispute is a “mala fide” dispute of fact as suggested in Von Steen v Von Steen 1984 (2) SA 203 (T) is open to doubt. Speculation does not create a real dispute of fact: Standard Credit Corporation Ltd v Smyth 1991 (3) SA 179 (W); Governing Body of Hoërskool Fochville and Another v Centre for Child Law; In re: Governing Body of Hoërskool Fochville and Others (Greenside High School Governing Body as amicus curiae) [2014] 4 All SA 204 (GJ).

[9] Petersen v Cuthbert & Co Ltd supra 428; Administrator, Transvaal v Theletsane [1990] ZASCA 156; 1991 (2) SA 192 (A) 197; G v Superintendent, Groote Schuur Hospital 1993 (2) SA 255 (C).

[10] Ismail v Durban City Council 1973 (2) SA 362 (N) 374A-B; Du Preez v NWK Ltd [2005] 3 All SA 551 (B).

[11] Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) 1162; Ter Beek v United Resources CC 1997 (3) SA 315 (C) 329D-E.

[12] Naidoo 2012 (1) SA 143 152A-153A; Section 23A Supreme Court Act 10 of 2017 and Rule 31 D1-360A. At Common Law D1-563 565

[13] Naidoo v Matlala NO & Others 2012 (1) SA 143 GNP [6]

[14] First National Bank of Southern Africa Ltd v Van Rensburg NO; in re First National Bank of Southern Africa Ltd v Jurgens 1994 (1) SA 677 (T) at 681B-G; Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306H; Kisten and Another NOO v Absa Bank Limited (unreported, KZP case no AR179/15 dated 23 August 2016) at paragraph [13].

[15] Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimowitz 1996 (4) SA 411 (C) at 421G. See also Roopnarain v Kamalapathy 1971 (3) SA 387 (D).