The
applicant seeks an order in the following terms:
“It is
ordered that:
1.
The sale in execution of the said dwelling, being Stand 2096 Bulawayo North of
Bulawayo Township, Bulawayo held under Deed of Transfer Number 1563/2006 be and
is hereby suspended until the fulfillment of the debt by way of payment of
GBP800= per month with effect from the 30th of August 2011.
2. The 2nd
respondent be and is hereby ordered to put in abeyance the sale in execution
pursuant to paragraph 1 above and in terms of Order 40 Rule 348a.
3. The 1st
respondent pays costs on an attorney-client scale if the relief sought is
opposed.”
The
background facts are the following.
In
or about June 2006, at the special instance and request of the applicant, the first
respondent lent and advanced to the applicant a sum of GBP28,659=25 (Twenty
eight thousand six hundred and fifty-nine
British Pounds and twenty-five pence). As security for the loan, the
first respondent specially hypothecated certain immovable property as a first
mortgage, being Stand 2096 Bulawayo North of Bulawayo Township, Bulawayo
otherwise known as Number 12 Plummer Street, Northend, Bulawayo. The said loan
was payable by way of instalments as stipulated by the first respondent from
time to time but at any rate, within a period of five (5) years, that is, on or
before the 2nd July 2011.
The
applicant failed to pay the instalments due since 2008, and, as a result, on
the 25th November 2010, the first respondent issued summons against
the applicant claiming a sum of GBP22,898=98 plus interest thereon and an order
declaring the Northend house specially executable.
On
the 6th December 2010, through her current legal practitioners of
record, the applicant entered appearance to defend. Thereafter, on the 12th
January 2011, the first respondent filed an application for summary judgment
and served it on that same day on the applicant's legal practitioners of
record. On the 21st January
2011, a roundtable conference of the parties was held at the first respondent's
legal practitioners where all outstanding issues were clarified and the
applicant was left in no doubt as to what was owed. On the 27th
January 2011, as shown in annexure “E1” to this application, the applicant
made an offer to pay an unquantified “substantial” deposit within three (3)
months and to pay off the whole balance outstanding by 2nd July
2011. Because the initial deposit was unquantified, a counter offer was
proposed to the applicant, as shown in annexure “E2”, on the 31st
January 2011; and, despite the applicant stating that they would revert to the first
respondent by 18 February 2011, the applicant never did so. After warning the
applicant that summary judgment would be proceeded with, as shown in annexure
“D1” and “D2”, the first respondent obtained judgment against the applicant and
subsequently issued the warrant of execution. Faced with the warrant of
execution and the attachment of the Northend house, the applicant filed this
application in terms of Order 40 Rule 348A(5a) of the High Court Rules 1971, on
the 2nd August 2011.
On
the 5th August 2011, the respondent opposed the same.
It
is significant, as well as common cause, that since 2008 the applicant has not
paid any instalment to the first respondent to date. In other words, not only
has the applicant failed to pay the instalments as per her offer on 27th
January 2011, she has failed to liquidate the whole balance due by the 2nd
July 2011 and/or to pay even a penny towards what she owes.
Rule 348A
(5a) provides:
“5a
Without derogation from sub rules (3) to (5), where the dwelling that has been
attached is occupied by the execution debtor or members of his family, the
execution debtor may, within ten days after the service upon him of the
notice in terms of Rule 347, make a chamber application in accordance with
sub rule (5b) for the suspension of –
(a) The
sale of the dwelling concerned; or
(b) The
eviction of its occupants.”…,.
Masendeke
v CABS 2003 (1) ZLR 65 (H).
In
casu, the Northend property was laid
under judicial attachment on the 8th July 2011. This application was
filed on 2nd August 2011, i.e. well after the expiry of the ten days
stipulated in Rule 348A(5a) above.
On
this point alone, it would seem the application is not properly before me.
Be
that as it may, this point was not averred so I will determine the application
on the points raised in the papers and during the hearing.
In
my humble view, execution of mortgaged property is different from the property
being referred to in Order 40 Rule 348A.
The
difference is that we are dealing here with foreclosure proceedings.
In
foreclosure proceedings, the security which the mortgagor pledged is the one
that is sold after institution of judicial proceedings for the amount of the
debt, where, after a writ of execution against the property is issued. In other
words, if the mortgagor does not pay the capital when due, or if he commits any
breach of the conditions of the contract entitling the mortgagee to foreclose
then the latter is entitled to have the secured property sold and obtain the
amount of his debt from the proceeds of the sale – Benson v Hirschlorin 1936
NPD 277. A mortgagor cannot claim a stay of execution in terms of Rule 348A
supra. It has to be noted that as a general rule a creditor who has obtained
judgment is entitled to enforce such judgment by levying execution and the
court has no jurisdiction to restrain the judgment creditor from enforcing such
legal right – Sabena Belgian World Airlines v Vas Elst 1981 (1) SA 1235 (T) and
South Cape Corp (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3)
SA 534 (A)…,. Rule 348A should be viewed as an exception to this general rule.
In
casu, in the summons and the summary
judgment application, the first respondent specifically sought an order
allowing it to sell the Northend house. The applicant was served with all those
processes and she was legally represented. She could have defended the matter -
even on that aspect alone. She did not. On 3rd March 2011, this
court acceded to the prayer sought by the first respondent and ordered that the
Northend house be sold. Having made an order directing the sale of the house, the
applicant, cannot now bring an application in terms of Rule 348A(5a) stopping
the sale on the basis she has made a reasonable offer. She is thus precluded
from doing so as allowing the application would have the effect of rescinding,
through the back door, the order that has been made by a competent court. By
declaring the house “specially executable” the court has given the first
respondent the right to sell the house in execution to recover what is owed to
it. The mortgagor's first and foremost duty is to pay the debt secured and the
mortgagee's corresponding right is to “call up” or “foreclose” the bond….,.
The
situation in casu was not the one contemplated by the legislature in drawing
Rule 348A(5a). It is different from an ordinary debt as this one is inexorably
tied to the house which has been declared by the court order to be specially
executable. The only interpretation that makes sense, rather than a mockery of
justice, is one which says Rule 348A is not applicable to foreclosure proceedings.
In this regard I am guided by what McNALLY JA said in S v Kachipare 1998 (2)
ZLR 271 (S)…, –
“I
take the view that one is entitled to look closely at the wording of the
section in order to find an interpretation which achieves sense rather than injustice,
in the application of the section in a situation almost certainly not
contemplated by the legislature. This must be specially so in a statute which
deals with procedure rather than with substantive law.”
For
these reasons the application must fail.
Accordingly,
the application is dismissed with costs on this preliminary point.
