Changing Tides 17 (Pty) Ltd v Miekle and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Van Zyl J
• Judgment Date: 16 May 2019
• Court: KwaZulu-Natal Division, Pietermaritzburg
• Hearing Date: 16 May 2019
• Citation: 2020 (5) SA 146 (KZP)
• Counsel: Counsel details not supplied.
• Docket Number: 1156/18P

Van Zyl J:

[1] Plaintiff instituted action against the defendants, apparently a married couple, based upon their alleged failure to maintain payments in respect of a home loan, secured by a mortgage bond in plaintiff's favour over their residential property. By way of relief the plaintiff claimed in its summons payment of the outstanding balance, interest thereon, costs and an order declaring the mortgaged property specially executable.

[2] Following service of the summons, the defendants entered appearance to defend and the plaintiff gave notice of its intention to apply for summary judgment. However, before the application for summary judgment could be heard the parties entered into an agreement whereby the defendants agreed to a revised payment schedule, confessed to judgment in terms of rule 31(1), as well as an arrangement whereby the confession would not be used and the action would be stayed, subject to their compliance with the agreed arrangements. In the result the summary judgment application was adjourned sine die with the defendants to pay the costs occasioned by the adjournment.

[3] Plaintiff now seeks judgment against the defendants in terms of their confessions to judgment on the grounds of their failure to adhere to the revised payment schedule, as agreed. In so doing the plaintiff relies upon the confession to judgment as executed by the defendants as part of the settlement agreement.

[4] When the matter initially came before me in chambers I was concerned that the plaintiff sought, in addition to a money judgment, an order declaring the residential property of the defendants specially executable.

[5] In the result I directed an enquiry to the plaintiff's attorneys, the relevant portions of which read as follows:

'3.

Prima facie whilst rule 31(1)(c) is permissive of a Chambers application, leave to execute against immovable residential property is governed by rule 46A which sets out in detail what a plaintiff needs to comply with before the Court will consider such leave.

4.

Plaintiff is invited to make written submissions, supported by authority, should it be so inclined, in support of the contention that leave to execute is capable of being granted in Chambers in conjunction with a money judgment in terms of rule 31(1)(c).'

[6] In response the plaintiff's attorneys have now made written representations seeking to persuade me that such a declaration of the property

Van Zyl J

as specially...