STANDARD BANK OF SOUTH AFRICA LIMITED and ASWIFANELI SAMUEL NEMUTANZHELA
In the matter between: STANDARD BANK OF SOUTH AFRICA LIMITED, Plaintiff, and ASWIFANELI SAMUEL
NEMUTANZHELA, 1st Defendant, and TSHILIDZI SELINAH NEMUTANZHELA, 2nd Defendant
A sale in execution of the undermentioned property is to be held by the Sheriff of Pretoria South West, at the Sheriff South
West’s Offices, Azania Building, cnr Iscor Avenue and Iron Terrace, West Park, Pretoria, on Thursday, 7 August 2014 at 11h00.
Full conditions of sale can be inspected at the offices of the Sheriff Pretoria South West, who can be contacted on Tel: (012)
386-3302, and will be read out prior to the sale taking place.
No warranties are given with regard to the description, extent and/or improvements of the property.
Property: Portion 27 of Erf 7722, Lotus Gardens Ext 2 Township, Registration Division JR, Gauteng, measuring 280 square
metres, also known as 14 Calomel Street, Lotus Gardens Ext 2.
Improvements: Main building: 3 bedrooms, 1 bathroom, toilet, kitchen, lounge.
Zoned: Residential.
Findlay & Niemeyer Incorporated, Attorneys for Plaintiff, P.O. Box 801, Pretoria. Tel: (012) 342-9164 (Ref: Mr M
Coetzee/AN/F3916.)
STANDARD BANK OF SOUTH AFRIC LIMITED, Plaintiff, and LUNDI CWENYA DODA
In the matter between: STANDARD BANK OF SOUTH AFRIC LIMITED, Plaintiff, and LUNDI CWENYA DODA
(ID: 7407145846085), First Defendant, and LUZUKO DODA (ID: 7906205641088), Second Defendant
NOTICE OF SALE IN EXECUTION
In pursuance of a judgment and warrant granted on 4 April 2012, in the above Honourable Court and under a writ of
execution issued thereafter the immovable property listed hereunder will be sold in execution on 5 August 2014 at 10h00, by
the Sheriff of the High Court, Pretoria South East, at 1281 Church Street, Hatfield, Pretoria, to the highest bidder:
Description: Section No. 286 of SS Spruitsig Park, situated at Portion 5 of Erf 1201, Sunnyside.
STAATSKOERANT, 25 JULIE 2014 No. 37857 13
This gazette is also available free online at www.gpwonline.co.za
Street address: 931 Maroela, Spruitsig Park, 420 Leyds Street, Sunnyside, in extent 69 (sixty-nine) square metres.
Improvements: The following information is given but nothing in this regard is guaranteed: The improvements on the
property consist of the following: Dwelling consists of: 2 bedrooms, 1 bathroom.
Held by the Defendants, Lundi Cwneya Doda & Luzuko Doda, under their names under Deed of Transfer No.
ST172065/2007.
The full conditions may be inspected at the offices of the Sheriff of the High Court, Pretoria South East, at 1281 Church
Street, Hatfield.
Dated at Pretoria during July 2014.
LGR Incorporated, Attorney for Plaintiff, 1st Floor, Silver Well Retail & Office Park, 27 Graham Road, Silver Lakes, Pretoria;
P.O. Box 2766, Pretoria, 0001. Tel: (012) 817-4600. Fax: (012) 809-3653 (E-mail: nstander@lgr.co.za) (Ref: N Stander/MP/
IA000266), c/o Macintosh Cross & Farquharson, 834 Pretorius Street, Arcadia. Tel: (012) 323-1406. Fax: (012) 326-6390.
ABSA BANK LIMITED, Plaintiff, and MARTHINUS JACOBUS VAN DER MERWE,
In the matter between: ABSA BANK LIMITED, Plaintiff, and MARTHINUS JACOBUS VAN DER MERWE,
1st Defendant, and JACOBYN VAN DER MERWE, 2nd Defendant
NOTICE OF SALE IN EXECUTION
Notice is hereby given, in accordance with the Regulations of the Consumer Protection Act 68 of 2008, that:
In pursuance of a judgment granted on 18 February 2014 and a warrant of execution of the above-mentioned Honourable
Court, a sale in execution will be held by the Sheriff Pretoria North East, at 1281 Church Street, Hatfield, Pretoria, on 5 August
2014 at 10h00, consist of:
Portion 2 of Erf 14, Jan Niemand Park Township, Registration Division J.R., Province of Gauteng, measuring 744 (seven
four four) square metres, held by Deed of Transfer T123357/2007.
Coordinates (lat/long): 25.702386/28.286705.
Property type: Freehold.
Known as: 189 Uil Street, Jan Niemanpark.
Particulars of the property and the improvements thereon are provided herewith, but are not guaranteed:
Improvements: 1 x lounge, 1 x dining-room, 3 x bedrooms, 1 x kitchen, 1 x bathroom, 1 x toilet, 1 x carport.
A copy of the Regulations of Act 68 of 2008, as aforementioned, can be obtained from: http://thornton.co.za/resources
/34180 rg515 gon293.pdf
Inspect conditions at Sheriff Pretoria North East, 102 Parker Street, Riviera, Pretoria. Tel: (012) 329-6024/5.
Tim du Toit & Co Inc. Tel: (012) 470-7777. (Ref: N Rappard/AK/PR2375.)
Court case between Nkata v Firstrand Bank Limited ZAWCHC 1
Download complete PDF document.
http://www.saflii.org/za/cases/ZAWCHC/2014/1.html
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT
Case No: 14272/2010
DATE: 16 JANUARY 2014
In the matter between:
NOMSA NKATA……………………………………………………………………………………………APPLICANT
And
FIRSTRAND BANK LIMITED……………………………………………………..FIRST RESPONDENT
SHERIFF IN THE DISTRICT OF DURBANVILLE…………………SECOND RESPONDENT
KRAAIFONTEIN PROPERTIES / EIENDOMME………………………..THIRD RESPONDENT
WESTERN CAPE DEEDS OFFICE……………………………………….FOURTH RESPONDENT
Coram: ROGERS J
Heard: 21 October 2013
Delivered: 16 JANUARY 2014
JUDGMENT
ROGERS J:
Introduction
[1] This is an application for the rescission of a default judgment granted against the applicant (‘Nkata’) by the registrar of this court on 28 September 2010. Judgment was thereby granted against Nkata in favour of the respondent in the present proceedings (‘FRB’) for payment of R1 472 506,89 together with interest from 1 June 2010 to date of payment, allegedly owing to FRB in terms of a mortgage loan agreement secured by a mortgage bond over Erf 8832 Durbanville situated at 3[…] V[…] D[…] Street in Durbanville (‘the property’). An order was also granted declaring the property to be executable for the amount of the judgment.
[2] Nkata seeks not only the rescission of the default judgment but also the setting aside of the writ of attachment issued by the registrar on 28 September 2010 and an order declaring the sale of the property in execution on 24 April 2013 to the third respondent (‘Kraaifontein Properties’) to be invalid. An interdict to restrain transfer of the property by the sheriff to Kraaifontein Properties was resolved by an undertaking pending judgment.
[3] The factual background to the matter is as follows. Nkata purchased the property in March 2005. The property was at that time undeveloped. Nkata obtained mortgage finance from FRB which resulted in the registration of a first bond in June 2005 and a second bond in May 2006. Nkata built a home on the property and took up occupation there with her two daughters during 2007. In the first bond Nkata chose the mortgaged property as her domicilium citandi et executandi. In the second bond she chose as her domicilium C/04 D[…] H[…], Rondebosch. This was the flat at which she was residing prior to the completion of the house she was building at the Durbanville property.
[4] During 2010 Nkata fell into arrears with her mortgage bond repayments. There were numerous telephone calls to her about this from the bank over the period March to November 2010. On 1 June 2010 FRB’s attorneys, Cohen Shevel Fourie (‘CSF’), in the person of Mr TO Price (‘Price’), addressed a letter to Nkata in terms of s 129(1) of the National Credit Act 34 of 2005 (‘the Act’). This letter was addressed to 2[…] V[…] D[…] Street (not 35 V[…] Doux Street, the address selected in the first mortgage bond). On 4 June 2010 a further s 129(1) was addressed to Nkata at ‘c/o 4 D[…] H[…]’ in Rondebosch (not C/04 D[…] H[…], the address selected in the second mortgage bond). Neither of these letters reached Nkata. The second was retrieved CSF on 14 June 2010 as an uncollected item.
[5] FRB issued summons on 5 July 2010. The summons alleged that her chosen domicilium was 35 V[…] D[…] Street in Durbanville. The summons alleged compliance with s 129(1)(a), annexing in purported proof of that allegation a copy of the notice sent to the Rondebosch address. On 9 July 2010 the sheriff attempted service at ‘4 D[…] H[…]’ in Rondebosch. His return indicated that service at that address was unsuccessful because there was a block of flats there called Exmoore Court. FRB’s attorneys were requested to supply the unit number. On 27 July 2010 the sheriff effected service at the Durbanville address by affixing a copy of the summons to the outer or main door.
[6] Nkata did not enter appearance to defend. On 4 August 2010 she approached a debt counsellor, and on 20 August 2010 she made an application for debt review. FRB alleges that she probably took these steps because she had received the summons. Nkata denied having received the summons.
[7] As already mentioned, default judgment was granted by the registrar on 28 September 2010. A writ authorising the sheriff to attach and take the property into execution was issued on the same day. (The judgment of the Constitutional Court in Gundwana v Steko Development & Others 2011 (3) SA 608 (CC), in which it was held that rule 31(5)(b) was invalid to the extent that it permitted the registrar (rather than a court) to declare a person’s home executable, was only delivered on 11 April 2011.)
[8] According to Nkata, she only learnt of the judgment when she received a telephone call from an FRB employee in the first half of October 2010 informing her that the property was to be sold in execution. The sale was scheduled for 10 December 2010. On 13 October 2010 her then attorneys, Ahmen & Hamman Attorneys (‘AHA’), emailed FRB urgently requesting a copy of the summons and judgment. On 19 November 2010 Nkata, through the offices of AHA, issued a rescission application (‘the first application’). FRB delivered a notice of opposition, and answering and replying affidavits were filed. The matter was to have served before the duty judge on 10 December 2010. The application was postponed because the parties were discussing settlement. On the same day the first application was settled in terms contained in a draft order. The agreement was that the sale in execution of the property (scheduled for that very day) was cancelled. Nkata undertook to sign FRB’s standard Quicksell mandate. She agreed that while the mandate was in place she would pay monthly instalments of R10 000. If the property was not successfully sold pursuant to the Quicksell mandate, Nkata was to pay the full arrears to FRB within 14 days of such expiry. If she failed to do so, FRB would be entitled to proceed to sell the property in execution forthwith. If she did pay the full arrears, FRB agreed not to sell the property but Nkata was obliged to resume payment of the full monthly instalment. Nkata was to pay the wasted costs of the cancelled sale and was also to pay the costs of the rescission application ‘as taxed or agreed’.
[9] It was envisaged that this settlement agreement would be made an order of court. Nkata during March 2011 applied through the chamber book to have the settlement made an order of court but the duty judge declined to make an order, observing that the papers were incomplete and confusing and that there would need to be notice to FRB. Neither Nkata nor FRB took further steps to have the settlement made an order. Be that as it may, the property was not sold pursuant to the Quicksell mandate. Instead, and during March 2011, Nkata paid a lump sum of R87 500 which extinguished her arrears, and she resumed monthly payments. It appears that over the next 12 months she again fell into arrears but brought the account up to date in March 2012.
[10] In April 2012, shortly after extinguishing the arrears for the second time, Nkata asked FRB to agree to the rescission of the default judgment because the judgment was negatively affecting her credit record. FRB refused to agree. In May 2012 Nkata told FRB that she was battling to meet her monthly instalments. After visiting the Durbanville branch of the bank, she submitted a distressed debt application but the bank rejected the application, stating that the matter was under litigation. (The bank’s internal records note, against the date 5 June 2012, that although Nkata’s account was up to date, this was ‘after years in arrears’, that the bank had a judgment and that there was no justification for acceding to the distressed debt application ‘with this lack of financial behaviour’.)
[11] Nkata then approached another debt counsellor, Johan Wepener. The latter was informed by FRB on 19 October 2012 that the mortgage loan was excluded from any debt review because it was ‘under litigation’. On Wepener’s advice, Nkata in December 2012 submitted a fresh distressed debt application but this was again rejected by the bank.
[12] Despite her financial difficulty, Nkata continue to pay the contractual instalments until February 2013, when she again fell into arrears. FRB then caused the property to be sold in execution, which sale was scheduled for 24 April 2013. According to the bank, its staff contacted Nkata on numerous occasions over the period February to April 2013 in an attempt to arrange for payment by her of the arrears. The bank alleges that she made promises which she did not keep.
[13] The sale in execution took place on 24 April 2013. The property was sold to Kraaifontein Properties for R1,086 million. According to the bank’s records, her full debt as at 5 April 2013 was about R1 392 028, with the arrears being R33 716 (approximately three months’ instalments). Kraaifontein Properties purchased the property with a view to renovating and re-selling it. They immediately erected a for-sale sign at the property. On the day following the sale in execution (25 April 2013) Nkata signed a monthly lease with Kraaifontein Properties to allow her to remain in occupation pending the re-sale. According to Kraaifontein Properties, Nkata agreed that they could arrange show houses. They started renovations immediately, which were completed in May 2013. According to them, Nkata did not say that she intended to seek rescission. On 2 May 2013 Kraaifontein Properties on-sold the property but registration has by agreement been suspended pending the outcome of the present application.
[14] On 3 May 2013 Nkata paid her first month’s rent to Kraaifontein Properties. She failed to pay rent in June and July 2013.
[15] The present rescission application (the second such application) was issued on 13 May 2013. FRB and Kraaifontein Properties oppose the application. They were both represented at the hearing by Mr D van Reenen. Ms Dzai appeared for Nkata.
The risk of playing banker – The National Credit Act
The risk of playing banker – The National Credit Act
Purchasers have increasing difficulty to obtain financing for the purchase of farms and other agricultural land. Many sellers of these properties consider granting the purchaser a bond for the purchase amount, to be paid off over a period of time. Worse, some accept an acknowledgement of indebtedness and consent to judgment as sufficient protection, prior to shaking hands and signing off on the transfer agreements.
Previously, the mere registration of the bond or the notice confirming the instalment sale of a property registered at the Deeds Office was sufficient. Together with the required written agreement it constituted protection to the incidental money lender in the event of a defaulting purchaser.
The National Credit Act has changed everything. The Act provides, inter alia, that in any credit agreement where the credit amount exceeds R500 000 (five hundred thousand Rand), the lender is to be registered as a credit provider. This includes the occasional private farm seller, even if it is a once-off arrangement with no intention by the seller to provide credit to any other person ever again. Failure to register as a credit provider prior to a transaction that can be defined as a “credit transaction” is a transgression of the Act.
Should the credit provider not be registered and the purchaser defaults on the payment agreement, section 89(5) of the National Credit Act is unequivocally prescriptive on how the courts are to deal with such circumstances. The credit agreement is void as from the date it was entered into. The credit provider must refund all payments made in terms of the agreement together with stipulated interest. Most importantly, all purported rights of the credit provider to recover any money paid or the goods that were delivered to the consumer, are cancelled, or the property forfeited to the state, unless a court finds that such forfeiture will unjustly enrich the purchaser.
Many sellers, and even attorneys, are either unaware of this provision or blatantly flaunt the requirement as they “trust” the purchaser and “know” that the full repayment will be made, including the interest. The problem only manifests when the worst case scenario does occur and the well-known and trusted purchaser defaults on the payments. Many of the sellers who acted as credit providers relied on such repayments and interest either to fund another farm purchase or worse, their retirement.
The Constitutional Court recently considered the validity of this section of the National Credit Act and specifically of the clause relating to forfeiture of the property to the state in the light of the Bill of Rights, regarding the right not to be arbitrarily deprived of property and the so-called Limitation clause. J van der Westhuizen delivered a majority judgement on 10 December 2012 which declared the arbitrary forfeiture of property to the state prescribed in section 89(5)(c) of the National Credit Act to be inconsistent with section 25(1) of the constitution, and thus invalid.
This judgement should, however, sound an urgent alarm to any and all unregistered credit-providing farm sellers. The intention of the National Credit Act is to discourage the provision of credit outside the framework set by the legislature. The Act thus has to punish those that do not comply with the requirements thereof, and the punishment is severe.
Should the farm seller therefore not have registered as a credit provider, and the purchaser defaults on his payments, such seller is at risk – a very real and serious risk. Unless a court orders that the circumstances will unjustly enrich the purchaser, such seller may not only forfeit all payments and interest, but will have to obtain a court order that the seller is entitled to recover the farm from the defaulting purchaser.
If the credit agreement is unlawful as from inception in terms of the National Credit Act, the agreement cannot be enforced and the defaulting party cannot be compelled to perform. In our law, pursuance of such agreement must then be made in terms of unjustified enrichment, and specifically the conditio ob turpem vel iniustam causam. In short, the requirements are that the ownership must have passed with transfer, transfer must have taken place in terms of an unlawful agreement, and the claimant must tender back everything received.
However, to be successful the claimant must be able to prove that he acted free of turpitude and show that the actions were not dishonourable. The banker-playing credit-providing farm seller might not forfeit the farm as the court’s discretion has been unconstitutionally curtailed in section 89(5)(c), but is still far from the position he could have been in had he simply registered as a credit provider.
Civil obedience regarding the legislation of the country creates a stable, safe, just and equitable society with a strong economy and an affinity with investors. Compliance with the National Credit Act not only ensures confidence in immovable property as an investment, but will protect those who want to play banker.
For further reading see National Credit Regulator vs Fillippus Albertus Opperman and others, case number CCT34/12 [2012] ZACC 29 and case law quoted by both the majority judgement and descending judgment written by J Cameron.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. —