THE REGISTRAR OF DEEDS, JOHANNESBURG - SAFLII

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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DtVtS|ON, PRETORTA)

REPUBLIC OF SOUTH AFRICA

Case Number: 1 948812013

Applicant

DELETE WHICHEVER IS NOT APPLICABLE

/1\ RFPORTARI F. NO\,/

(2) OF INTEREST TO OTHER JUDGES: YES/NO

DATE: 23 DECEMBER 2020

SIGNATURE:

JUDGE MOYO

And

THE STANDARD BANK OF SOUTH AFRICA LIMITED First Respondent

KATSURA SOLUTIONS (PTY) LTD Second Respondent

THE REGISTRAR OF DEEDS, JOHANNESBURG Third Respondent

JANSE VAN NIEUWENHUIZEN J

JUDGMENT

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11l The applicant seeks an order in the following terms:

"6. That the court grants the Applicant condonatron for bringing the application late.

7. That the court rescind the judgment granted by the Honourable Court on the 12h of

January 2015 under case no; /9488/2013 against the applicant. \

8. That the court declare that the declaration issued under case number no: 1948/2013

be set aside as rnvalrd,

9. That the sale in execution of property Etf 760, Cosmo City, Extension 1, Gauteng

better known as 10 Wrginia Crescent, Cosmo City held on the 29h of June 20/5

together with a// subsequent sales be set aside as unlawful pending the finalization of

these proceedings,

/0. That an order interdicting the Registrar of Deeds to transfer the property back to the

applicant.

1/. That an order directing Standard Bank of South Africa to restore the applicant's bond

on the same terms and conditions,

/2. An order preventing further transfer of the property.

1 3. The respondents are ordered to pay the costs of the appltcation. " (sicl)

Parties

l2l The applicant, Judge Moyo, is the erstwhile owner of Erf 760, Cosmo City,

Extension 1, Gauteng, better known as 10 Virginia Crescent, Cosmo City ("the

property").

l3l The first respondent, Standard Bank of South Africa ("the Bank"), extended credit to

the applicant to purchase the property and registered a bond over the property as

security for the loan.

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The second respondent, Kutsura Solutions (Pty) Ltd ("Kutsura"), purchased the

property at a sale in execution.

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tsl The third respondent, the Registrar of Deeds, Johannesburg, administers the

records pertaining to the property.

t6l Only the first respondent opposes the relief claimed by the applicant.

Background

l7l On 19 March 2007 the Bank granted a home loan facility to the applicant in the

amount of R 542 028, 00 for the purchase of the property with monthly repayments

in the amount of R 5 650, 00. In terms of the agreement entered into between the

applicant and the Bank, the applicant agreed that the Bank may register a bond

over the property as security for the loan.

t8l ln pursuance of the agreement, a Continuing Covering Mortgage Bond, 876408107

was registered over the propedy in favour of the Bank on 10 May 2017.

tgl ln terms of clause 14.2 and 14.3 of the Mortgage Bond, the applicant chose 131

Balnagos 144 Banket S Hillbrow 2038 ("the domicilium address") as the address

where he would accept service of any legal proceedings and notices sent by post.

Clause 14.4 entitled the applicant to change the aforesaid address by giving the

Bank 14 day's written notice.

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The applicant did not honour his payment obligations in terms of the loan agreement

and his monthly instalments were in arrears in the amount of R 33734,74 on 18

March 2013. This prompted the Bank to issue summons against the applicant under

the abovementioned case number for payment of the outstanding amount, an order

declaring the property specially executable and authorising a writ of execution.

The summons was served on 19 November 2014 at the domicilium address by

affixing a copy to the door. 0n 14 March 2014 and prior to the issuing of summons

the Bank sent a letter in terms of section 129 of the National Credit Act, 34 of 2005

via registered post to the applicant's domicrlium address. The Bank received

confirmation from the Post Office that a notification was sent to the applicant's

domicilium address to inform the applicant of the registered letter.

The applicant did not defend the action and on 12 January 2015 default judgment

was granted against the applicant for payment of the capital amount, interest,

monthly insurance and costs. The court, furthermore, granted an order declaring the

property specially executable and authorising the Registrar to issue a writ of

execution in respect of the property.

A writ of execution was granted by the Registrar and a sale in execution was

scheduled for 29 July 2015. The notice of the sale in execution was personally

served on the applicant on 16 July 2016.

The second respondent purchased the property at the sale for R 190 000, 00.

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Application for rescission

Applicant's case

t16l The applicant launched the present application on 15 August 2016. In support of the

order for condonation, the applicant merely stated that at the time'he obtained

knowledge of the judgment he did not have money to litigate.

The applicant explained that he started defaulting in 2013 due to financial

difficulties. The difficulties were caused by a decrease in the commission he

received as a network marketer at Clientele Life.

The applicant avers that he telephonically contacted the Bank whenever he

defaulted. The bank would continuously phone him for payment, even in the months

that he did make payments of the monthly instalment. As a result, the applicant

requested bank statements to ascedain how much he still owed.

He was informed by the bank that monthly statements were sent to the domrcrlium

address. The applicant informed the bank that the domrcrlrum address was his

previous place of residence and instructed the bank to change the domrcrlium

address to his current address.

The bank adhered to his instruction and sent the monthly bank statements to his

current address. The applicant stated that he was surprised when he received an

eviction application early in 2016 and could not understand why he was being

evicted from his own house.

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Upon further enquiries he was informed by his attorney on 20 May 2016 of the

default judgment. The applicant's attorney told him that the section 129 notice was

sent to his previous address and that the summons was served at his previousi

address, which address is still reflected as the applicant's chosen domicilium

address.

Due the aforesaid, the applicant did not receive the section 129 notice nor the

summons. The applicant did, however, receive his monthly bond statements at his

current address and maintains that the bank was, subsequent to his telephonic

instruction, fully aware of his current address. In the result, the applicant did not

deem it necessary to inform the Bank in writing of his current address.

ln setting out a bona fide defence, the applicant maintained that had he received the

section 129 notice he would have applied for debt review. The applicant,

furthermore, maintains that this court did not have iurisdiction due to the fact that the

propedy is situated in Johannesburg and falls within the jurisdiction of the High

Court. Johannesburo.

The applicant states that the Registrar issued the writ of execution without judicial

oversight and that the provisions of rule 31(5) and 45 of the Uniform Rules of Court

was declared unconstitutional which entailed that the Registrar did not have the

necessary authority to declare the property executable.

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According to the applicant, the Bank, furthermore, did not comply with the provisions

of rule 46(lXaXii) in that a writ for the attachment of his movable assets was not

issued prior to the attachment and sale of the property.

The applicant alleges that the issuing of the writ of execution against his property

infringes sections 25 and 26 of the Constitution as well as sections 78(2),80 to 84

of the National Credit Act, 34 of 2005 pertaining to reckless credit.

The applicant states that he has six children and maintains that his children will be

destitute if the judgment is not rescinded. The applicant, furthermore, requests that

sale of the property to the second respondent be set aside. According to the

applicant, the second respondent is a business entity and will suffer no prejudice if

the sale is set aside.

The Bank's response

The Bank only filed its answering affidavit during May 2019 after it was ordered to

do so in terms of a court order dated 6 May 2019. The Bank did not apply for

condonation for the late filing of its answering affidavit.

The applicant requests that the answering affidavit be struck due to non-compliance

with the time limits for the filing of an answering affidavit contained in the rules of

court.

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The Bank maintains that it filed its answering affidavit in terms of the court order and

that it is not necessary to ask for condonation for the late filing thereof.

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The Bank had, in terms of the provisions of rule 6(5Xd) read with the notice of

motion, to give notice of its intention to oppose the application on or before 18

August 2016 and thereafter had to file its answering affidavit on or before 9

September 2016.

In the result, the answering affidavit has been filed two years and eight months out

of time.

The court order dated 6 May 2019, reads as follows:

"'1. The application is removed from the opposed ro//;

2. The first respondent is ordered to pay the unopposed wasted costs occasioned by the

removal of the matter from the ro/1, which costs are limited to such costs as would

have been lncured had the matter been enrolled on the unopposed motion roll,'

3. The first respondent is ordered to file its answering affidavit within 15 days from date

of this order."(own emPhasis")

From the aforesaid order it is clear that the court was not seized with an application

for condonation for the late filing of the answering affidavit. ln the result, the court

did not grant condonation but.ordered the Bank to file its answering affidavit within a

certain time frame.

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Consequently, and without an application for condonation, the answering affidavit is

struck out.

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The replying affidavit also falls away and the application stands to be debided on the

applicant's founding affidavit read with the papers in respect of the default judgment

and the sale in execution.

Legal principles

In terms of rule 31(2Xb) a defendant may within 20 days after acquiring knowledge

of the default judgment apply to the court to rescind the judgment and the court

may, upon good cause shown rescind the judgment.

The averment by the applicant that he only became aware of the default judgment

on 20 May 2016 after the eviction application was served on him bears scrutiny.

Upon a perusal of the documents filed with the Notice of sale in execution:

lmmovable propedy, a return of service in respect of the service of the notice on the

applicant on 16 July 2015 forms pad of the documents.

The return states as follows:

,I CERTIFY THAT I HAVE ON THE 16h DAY OF JULY 2015 AT /1H38 SERVED THE

ATTACHED NOTICE OF SALE UPON MR JUDGE MOYO PERSONALLYAT ERF 760 _ /O

VIRGINIA CRESCENT. COSMO CITY. BEING THE RESIDENTIAL ADDRESS.

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THE ORIGINAL WAS EXHIBITED AT THE SAME TlME A COPY THEREOF WAS HANDED

OVER AND THE NATURE AND EXIGENCY THEREOF WAS EXPLAINED."

The introduction to the Notice of sale in execution: lmmovable properly reads as

follows:

"ln terms of a judgment granted on the /2h January 20/5, in the above Honourable Court and

a Writ of Execution on immovable property issued thereafter, and the subsequent attachment

thereof, the undermentioned property wi//be sold in execution...."

The aforesaid return of service contradicts the applicant's version that he only

became aware of the default judgment on 20 May 2016. The applicant chose, for

reasons unknown to the court, not divulge this information and/or to provide an

explanation for the delay in the launching of this application for a period of almost a

year.

Rule 27(1) provides that a court may, upon good cause shown, condone non-

compliance with the time limits contained in the rules. In order to show good cause,

an applicant must:

43.1 give a full and reasonable explanation for the delay that covers the entire

period of the delay; [See: Van Wyk v Unitas Hospital (Open Democratic

Advice Centre as Amrcus Curiae)2008 (2) 5A472 CC at 477E-Gl

43.2 disclose a bona fide defence; [See: Ford v Groenewald 1977 (4) 5A224 T at

225Gland

43.3 state that the granting of condonation will not prejudice the plaintiff in any way

that cannot be compensated for by a suitable order as to postponement and

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costs. lsee: santa Fe sectional Title scheme No 6///gg4 Body corporate v

Bassonia Four Zero Seven CC 20/S (3) SA 451 GJ at 454F-Gl.

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The applicant has dismally failed to give a full explanation for the entire period of the

delay. No explanation, whatsoever, is provided for the period when he received the

notice of sale in execution on 16 July 2015 to May 2016 when he alleges, he became

aware of the default judgment. As set out aforesaid, his version is contradicted by the

Sheriff's return and it appears it was the application for his eviction that prompted the

present application.

lf the applicant acted bona fide and with haste when he became aware of the

judgment, the sale of the properly to the second respondent could have been

averted, In the current circumstances, not only the Bank but also the second

defendant will be seriously prejudiced should the judgment be set aside at this stage.

One must, furlhermore, bear in mind that four years has expired since the application

was launched. The applicant has not explained why he did not take all necessary

steps to finalise the matter timeously. lt appears from the order granted on 6 May

2019 that the Bank set the matter down for hearing. The Bank has, once again, set

the matter down for hearing on 30 November 2020, one year and six months after

the previous court hearing. The applicant has taken no steps whatsoever to finalise

the hearing of the application.

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The applicant's failure to pursue the matter has, in my view, a bearing on his bona

fides. lf the applicant seriously intended to defend the action, he would have

vigorously pursued the present application.

The applicant's reluctance to finalise the matter might be explained if one has regard

to his bona fide defence. The applicant admits that he fell in arrears which admission

entitled the Bank to obtain judgment against him.

The order declaring the property specially executable and authorising the Registrar to

issue a writ of execution was duly granted by the court and not the Registrar as

alleged by the applicant. The order was granted consequent to a substantive

application by the Bank.

The only defence left, is the fact that the section 129 notice was sent to the

applicant's previous address is but a factor to take into account in considering the

applicant's bona fide defence. One should, however, bear in mind thatthe applicant

had, in terms of the agreement between the parties, to change his domicilium

address in writing. This he did not do.

[51] The long period of delay and the applicant's failure to pursue the application coupled

with the prejudice that will be suffered by the first and second respondents far

outweigh the applicant's prospects of success should the judgment be set aside.

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In the result, the application stands to be dismissed.

In considering all the factors mentioned

condonation to the applicant for the late filing

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sLJpra, I am not prepared to grant

of the application.

Costs

Although the Bank's answering affidavit was not before the court, I allowed Mr Van

Heerden, counsel for the Bank to address me on the applicant's application, Mr Van

Heerden directed my attention to clause 1 .1 .3 of the Mortgage Bond that provides fof

'legal costs of recovery whlch will be as between aftorney and own client".

for the

on an

[55] This application forms part and parcel of the action

due to the Bank and I am prepared to award costs

scate.

recovery of the amount

attorney and own client

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ORDER

In the premises, I grant the following order:

The application is dismissed with costs on an attorney and own client scale.

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

. JANSE VAN NIEUWENHUIZEN

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DATE HEARD PER COVlDlg DIRECTIVES: 30 November 2020

(Virtual hearing.)

DATE DELIVERED PER COVlDlg DIRECTIVES: 23 December 2020

APPEARANCES

Counsel for the Applicant: Mr Malale

(With right of appearance)

lnstructed by.' Malale Nthapelang Attorneys

Counsel for the First Respondent: Advocate J. van Heerden

lnstructed by.' Hannes Gouws and Partners Incorporated

THE REGISTRAR OF DEEDS, JOHANNESBURG - SAFLII

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