Nedbank Limited v Schamrel (07374/2016) [2017] ZAGPJHC 390 (28 November 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 07374/2016

Not reportable

Not of interest to other judges

Revised.

23 November 2017

NEDBANK LIMITED Applicant

and

SCHAMREL, JOHAN Respondent

Heard on: 16 November 2017

Delivered on: 28 November 2017

JUDGMENT

DE VILLIERS AJ:

[1] This matter was called on the first day of the opposed motion week as no heads of argument were delivered on behalf of the respondent. The respondent had been represented by attorneys in the preparation of the opposing papers but was no longer so represented when he appeared himself. I stood the matter down until the Thursday to enable the respondent to obtain legal representation and/or to reach a settlement with the applicant. In the end, no settlement was reached and the respondent continued to represent himself.

[2] The facts are uncomplicated and were not in dispute. The applicant obtained default judgment before the Registrar on 14 April 2016 in the amount of about R2.5m for non-payment of an instalment sale agreement and three mortgage loan agreements. The registrar referred the matter to open court for adjudication of the applicant’s rights to have two mortgaged properties declared specially executable for the judgment debt.

[3] The respondent appears to reside in Zimbabwe. Neither of the two properties in issue is the respondent’s primary residence.

[4] The applicant’s founding affidavit fell short of the requirements set out in Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (T) at 323F and further (under the heading ‘The law relating to the content of affidavits generally’). It did not contain the summons, the application for default judgment, or the underlying documents. The answering affidavit raised no objection thereto.

[5] Although not dealt with in the founding affidavit, one of the mortgaged properties was sold on auction by agreement between the applicant and the respondent on 28 July 2016, the property situated at Chancliff Agricultural Holdings. The selling price was about R1.9m. This substantially reduced the respondent’s judgment indebtedness to the applicant, but he remained indebted in an amount of in excess of R0.6m. The respondent puts this figure at about R650 000.

[6] The applicant seeks to levy execution against the remaining two properties to satisfy its judgment.

[7] The applicant did not seek to levy execution against the respondent’s movable assets before bringing the current application. It did not do so as it believes that the proceeds of such sales would be insufficient to settle the respondent’s debt to it. No reason for this belief has been given. On the other hand the respondent also did not disclose movable assets.

[8] The answering affidavit contains unsubstantiated averments about an agreement with the applicant that the property situated at Chancliff Agricultural Holdings would not have been sold for less than R2.4m. Due to the vagueness of these averments, it is impossible to conclude that a factual dispute exists. The respondent merely avers that he has a recollection of such an agreement. He does not identify the applicant’s representative with whom he could have concluded the agreement. The answering affidavit reflects that the respondent has endeavoured to sell the Riebeeckstad property for R500 000, to one A J Schamrel, presumably a relative. The sale has not been completed.

[9] In the light of the reduced judgment debt, in the light of the fact that two properties are at stake, and the fact that the respondent was unrepresented, I asked the parties to consider if an agreement could be reached that first the one and then the other property be sold. They could not reach such an agreement. The respondent conceded that neither property is valuable enough to raise a sufficient selling price to clear the judgment debt.

[10] This outcome me with the task to apply the law. In Bartezky and Another v Standard Bank of South Africa Limited and Others (13668/2016) [2017] ZAWCHC 9 (16 February 2017) para 10-12 Binns-Ward J gave this summary (underlining added):

‘[10] The notion that a debtor’s property should be available to satisfy its debts is universally accepted. Execution does not occur arbitrarily. It takes place only after a court has by its judgment confirmed the existence of the obligation and authorised enforcement of compliance with it. Thereafter, a number of prescribed procedures have to be complied with before execution of the judgment is actually carried out. These include notice of to the judgment debtor of the attachment of the property, the ability of a judgment debtor in the ordinary case to point out the property that should be attached, advertisement and a public sale. The procedural requirements afford a judgment debtor adequate practical opportunity to avoid the sale of its property if it is able to redeem its indebtedness by other means.

[11] The relative importance of immovable property – something recognised by the Constitutional Court in Wesbank (see sub-para (e) in para. 100) – is acknowledged in the provision that ordinarily execution must occur against movables, and only when those have been excussed may the judgment creditor proceed against immovable property. The position is different, when, as in the current matter, the court had declared the immovable property to be directly executable, but that invariably occurs when the debtor has bound itself to submit to such an order – usually in the context of having mortgaged the property. There is nothing arbitrary about that.

[12] Nor is the exposure of the property to execution something that happens arbitrarily. It is always founded on some underlying

liability by the judgment debtor. A judgment debtor who undertakes contractual liability voluntarily undertakes the risk that breach of or failure to perform in terms of the contract may have adverse proprietary consequences. . . .’

[11] In Gundwana v Steko Development CC and Others (CCT 44/10) [2011] ZACC 14; 2011 (3) SA 608 (CC); 2011 (8) BCLR 792 (CC) (11 April 2011) para 53 and 54 the court held (footnotes omitted, underlining added):

‘[53] Some further cautionary remarks are called for. It is rather ironic that the effect of this judgment is to restore to the courts a function that they exercised for close on a century before the introduction of rule 31(5) in 1994. The change to the original

position has been necessitated by constitutional considerations not in existence earlier, but these considerations do not challenge the principle that a judgment creditor is entitled to execute upon the assets of a judgment debtor in satisfaction of a judgment debt sounding in money. What it does is to caution courts that in allowing execution against immovable property due regard should be taken of the impact that this may have on judgment debtors who are poor and at risk of losing their homes. If the judgment debt can be satisfied in a reasonable manner without involving those drastic consequences that alternative course should be judicially considered before granting execution orders.

[54] In Jaftha, Mokgoro J, before listing some relevant factors that needed to be considered in judicial oversight of the execution process, warned

that “it would be unwise to set out all the facts that would be relevant to the exercise of judicial oversight.” Mindful of that warning, I would merely add the following. It must be accepted that execution in itself is not an odious thing. It is part and parcel of normal economic life. It is only when there is disproportionality between the means used in the execution process to exact payment of the judgment debt, compared to other available means to attain the same purpose, that alarm bells should start ringing. If there are no other proportionate means to attain the same end, execution may not be avoided.’

[12] The applicant is entitled to payment. The applicant’s contractual right to seek an order declaring the properties specially executable has not been placed in issue. The applicant is entitled to this relief.

[13] On the facts of this case, the applicant has not made out a case that it is entitled to attorney and client costs. It sought to place various further documents before me as a bundle, but these were not confirmed under oath and did not form part of these proceedings. As a result the applicant has failed to prove its right(s) to claim costs on the attorney and client scale.

[14] On the facts of this case I grant the following order:

1 Erf [...] Uitenhage, Nelson Mandela Bay Metropolitan Municipality, Division of Uitenhage, Province of Eastern Cape, Measuring 818 (Eight Hundred and Eighteen) Square Metres and held by Deed of Transfer No. T31006/1997, is declared specially executable, subject to the conditions therein contained;

2 Erf [...] Riebeeckstad, District of Welkom, Province of the Free State, Measuring 833 (Eight Hundred and Thirty Three) Square Metres and held by Deed of Transfer No. T030882/2003, is declared specially executable, subject to the conditions therein contained;

3 The Registrar is authorised to issue a warrant of execution against the immovable properties as described in (1) and (2) above;

4 The respondent is to pay the costs of this application.

______

DP de Villiers AJ

On behalf of the Applicant: Adv S Dos Santos

Instructed by: Moodie & Robertson