Ndlukulwana-Ibegu v Nedbank Limited and Others (73237/16) [2018] ZAGPPHC 504 (21 May 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) NOT REPORTABLE

(2) REVISED

DATE: 21/5/2018

CASE NO: 73237/16

In the matter between:

ADELLE NDLUKULWANA-IBEGBU

APPLICANT

And

NEDBANK LIMITED

1st RESPONDENT

BEZUIDENHOUT VANZYL & ASSOCIATES

2nd REESPONDENT

THE REGISTRAR OF DEEDS, PRETORIA

3rd RESPONDENT

STEYN STEYN LE ROUX INC

4th RESPONDENT

JUDGMENT

MADIBA, AJ

INTRODUCTION

[1] This is an application by the Applicant seeking relief: that the Respondents be interdicted from,

i. transferring the property (known as) ERF 1553 Douglasdale better known as unit 8 Carisbrook, 61 Hombill street Douglasdale Extension 97 Johannesburg Gauteng.

ii. dealing in anyway whatsoever with the immovable property relating to ERF 1553 Douglasdale aforementioned.

iii. interdicting the 3r d Respondent from registering any transaction in the records of the deeds registry in respect of the immovable property relating to ERF 1553 Douglasdale.

iv. that the 3rd Respondent is directed to record a caveat against the tittle deed of the immovable property relating to ERF 1553 pending the finalisation

of the dispute launched with the Banking ombudsman.

v. that the first Respondent alternatively the fourth Respondent alternatively the first, second and fourth Respondents jointly and

severally pay the costs of this application in the event of it been opposed.

[2] The 1st Respondent opposes the relief sought by the Applicant on the basis that the application is moot in that the property in question has been registered and transferred in the name of one Brits. He contends that the application be dismissed with costs on attorney and client scale. That costs order de bonis propis be granted against Applicant's attorneys.

FACTUAL BACKGROUND

[3] The Applicant and the 1st Respondent entered into a loan agreement in respect of the immovable property situated at ERF 1553 Douglasdale better known as unit 8 Carisbrook, 61 Hombill Street Douglasdale Extension 97 Johannesburg Gauteng.

[4] The 1st Respondent registered a mortgage bond over the aforesaid property.

[5] The Applicant fell into arrears with her payment in terms of the loan agreement. Default judgment was obtained against the Applicant and whereafter the aforementioned property was attached and sold in execution.

[6] The property was then sold to White Rock Property Trading. The sale in execution to White Rock Property Trading was subsequently cancelled due to White Rock Property not complying with the condition of the sale.

[7] Erf 1553 Douglasdale as fully described above was again sold in execution on the 26 July 2016 to one Brits. Registration and transfer of the said property into the name of Brits was effected on the 27 September 2016.

[8] The Applicant contends that she is still the owner of the aforementioned property as Erf 1553 Doglasdale was sold without her knowledge. She further submit that registration of the property into the name of Brits took effect after she has lodged her application on the 19th September 2016. She argues that she was not afforded enough opportunity to redeem a primary residence from sale in execution.

[9] The Respondent's contention is that the registration into the name of Brits occurred before Applicant could serve the 1st Respondent with her application.

[10] The Applicant only served her application on the 2nd Respondent during the 6 October 2016 after the registration was effected on the 27 September 2016.

ISSUES TO BE DETERMINED

[11]

i. Whether the Applicant was supposed to have joined the new owners of Erf 1553 Douglasdale,

ii. Whether the relief sought by the Applicant is moot,

iii. Whether the ombudsman has jurisdiction in this matter.

POINT IN LIMINE

[12] The Respondent raised a point in limine of non-joinder. The Respondent submit that since the immovable property in question i.e Erf 1553 Douglasdale was purchased by the new owner Brits, and Brits was supposed to have been joined.

[13] The Applicant contends that Respondents maliciously failed to inform her that the sale of Erf 1553 Douglasdale to the initial purchaser White Rock was cancelled and sold to Brits. She could therefore not have joined Brits.

13.1. In S v Pretorius v Slabbert 200 (4) SA 935 SCA at page 937 the court stated that a third party should be joined in a matter if it appears that the third party has a direct and substantial interest in the subject matter of the action.

13.2. The court held in Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 A that a third party who may have a direct and substantial interest in any order the court might make in proceedings or if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings.

13.3. The test is whether the party that is alleged to be a necessary party for purpose of joinder has a legal interest in the subject matter of litigation which may be affected prejudicially by the judgment of the court concerned. See Bowring N.O. v Vredendorp Properties CC and Another 2007 (5) SA 391.

13.4. Despite Applicant's denial that she was not informed about the sale to Brits, she nonetheless joined Brits' attorneys to her application. It is apparent and clear that the Applicant was aware and knew about the sale of Erf 1553 Douglasdale to Brits. Her allegations that Respondents failed to inform her about the sale of the immovable property lack merit and should be dismissed.

13.5. Brits as the owner of the immovable property situated at Erf 553 Douglasdale, is in my view an interested party in this proceedings and his non-joinder will greatly prejudice him as he might lose his property. I find that in deed the Applicant failed to join Brits as an interested party in the proceedings.

13.6. The Respondent submits that the relief sought by the Applicant is moot as the immovable property has already been registered and transferred into the name of Brits.

Applicant argues that the registration and transfer was only effected after she issued her application. She further contends that the Respondent failed to give her a fair opportunity to settle the arrears due as they instead demanded the full amount owing in terms of the lease agreement. The record in this matter reveals that Applicant issued or signed her application on the 19th September 2016. The property was sold to Brits on the 26 July 2016 and was registered and transferred in the names of Brits on the 27 September 2016.

[14] The Applicant served the application on the 2nd Respondent on the 6 October 2016. It goes without saying that the Respondent became aware of the Applicant' s application after Brits took ownership of Erf 553 Douglasdale.

[15] At the time the application was lodged, the transfer was already effected to Brits. Consequently the Applicant' s application became ineffective.

[16] It is further submitted by the Respondents that the Applicant and her attorneys were informed timeously about the pending registration and transfer of the property to Brits but failed to act.

[17] Applicant disputes that she or her attorneys were forewarned about the transfer of the property. She contends that she and Respondents were engaged in negotiations for payments and thus the Respondents created a legitimate expectations that her house might be saved. It is apparent from the record that 2nd Respondent dispatched a letter to the Applicant dated 17/08/2016 advising that they will be proceeding with the transfer of the

property unless interdicted. Accordingly the Applicant was also informed about the transfer of the property to Brits in a letter

dated 10 October 2016. I am satisfied that Applicant was duly informed about the process taken.

[18] The Applicant fell into arrears of R968841.53 and the full exact of the debt was R1977195.59.

[19] Applicant was given an opportunity to settle the arrears and remain in the immovable property. She failed to do so and the property was then sold to Brits. It came to light that the Applicant did not have a stable job and depended on commission to sustain herself. It became difficult for the Applicant to keep up with the instalment payment of the property as she ultimately did not have employment.

[19] Applicant's contention that Respondent demanded the full amount of the debt is therefore not correct. That Respondents failed to give her a fair opportunity to settle the arrears is further than the truth.

[20] The Applicant' s submission that she had enforceable rights which have been vindicated by the lodging of her application is rejected. In instances where there are competing rights, a balance needs to be struck between such rights.

[21] The alleged rights of the Applicant cannot supercede the vested rights of both the Respondent and Brits.

[22] I therefore hold the view that this application is indeed moot.

[23] The Applicant further contends that she referred the dispute of the property to the ombudsman for further adjudication. She submits that the dispute is pending before the ombudsman and the property was not supposed to have been sold and transferred.

[24] The Respondents' submission is that the office of the ombudsman lacks jurisdiction to entertain this matter. They contend that the first Respondent exercised and protected its rights by selling the property in execution.

[25] It is indeed so that this matter reached finality when transfer was effected into the name of Brits. This matter cannot therefore be pending before the ombudsman. I am not persuaded that the ombudsman does have jurisdiction in this matter. The Applicant's submission in this respect is not sustainable.

[26] Regarding costs, costs follow the successful party.

[27] In the premises I make the following order -

1. The point in limine of non joinder is sustained

2. The application is dismissed

3. Applicant to pay the costs.

MADIBA, S.S

ACTING JUDGE OF THE IDGH COURT

For the Applicant: Adv C Z Muza

Instructed by: Elogran Naicker Attorneys

For the Respondent: Adv M. Reineke

Instructed by: Bezuidenhout Van Zyl @ Ass

Date of Judgment: 21 May 2018