Mitchell v Mathews
| Jurisdiction | South Africa |
| Judge | Breitenbach J |
| Judgment Date | 23 April 2014 |
| Docket Number | 2522/2014 |
| Court | Western Cape High Court, Cape Town |
| Hearing Date | 03 March 2014 |
| Citation | 2014 JDR 0871 (WCC) |
Breitenbach, AJ:
This unusual application came before me in the unopposed motion court on Monday 3 March 2014. The applicants ('the Mitchells'), who are married to one another in community of property, are the registered co-owners of Erf 17245, Mitchells Plain, situate at 52 Bamboo Street, Lentegeur Mitchells Plain ('the property'). They apply for (a) an order declaring that they are the owners of the property, (b) an order that the first and second respondents ('Matthews & Oliver'), who are mother and son, are occupying the property unlawfully, (c) an order directing Matthews & Oliver to vacate the property within 30 days failing which the Sheriff must evict them and (d) an order that the Mitchells must institute within 30 days any action against any of the respondents to recover damages for any losses they may have suffered.
The sequence of events culminating in the present application is as follows.
On 19 May 2009, in an action in this Court under case number 1178/09 between the third respondent ('FirstRand Bank') (as plaintiff) and Matthews & Oliver (as defendants), the Registrar of this Court, acting in terms of under rule 31(5)(b) of the Uniform Rules of Court read with rule 45(1), granted default judgment against Matthews & Oliver in favour of FirstRand Bank. The orders made included orders for payment of R279 922.81 plus interest due under a loan agreement and an order declaring the property, of which Matthews & Oliver were then the registered owners and over which FirstRand Bank was then the mortgage bond holder, specially executable in satisfaction of that judgment debt and FirstRand Bank's costs of suit on the attorney and client scale. On the same day the Registrar issued a warrant of execution authorising the Sheriff to attach and sell the property.
On 15 March 2011, at the ensuing sale in execution conducted by the Sheriff, the property was purchased by the fourth respondent ('Dadarker').
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Breitenbach AJ
On 13 July 2011 the property was transferred to Dadarker and registered in his name in the Deeds Registry.
On 22 August 2011 the Mitchells purchased the property from Dadarker. The deed of sale included a term (clause 5) providing that Dadarker would give the Mitchells vacant possession of the property on the date of transfer.
On 10 September 2011 the Mitchells and Dadarker concluded an addendum to the deed of sale which included a provision recording that Dadarker would not give them vacant possession of the property on the date of transfer and deleting clause 5 of the deed of sale. The background to this provision was that Matthews & Oliver were still living in the house on property (which is the property's main improvement) and had failed to move out despite correspondence from Dadarker's attorneys (dated 23 March 2011 and 26 August 2011) requiring that they do so or face proceedings for their eviction.
On 14 October 2011 the property was transferred by Dadarker to the Michells and registered in their names in the Deeds Registry. To pay for the property the Mitchells borrowed money from the sixth respondent ('Standard Bank') and caused a mortgage bond over the property in its favour to be registered in the Deeds Registry. This occurred on the same day as the registration of the transfer. Since then, and despite the events described below, Standard Bank has insisted that the Mitchells pay the monthly instalments due in terms of the loan agreement and they have duly done so.
On 15 October 2011, while Matthews & Oliver were still living in the house on property, the Mitchells gained access to the house and moved in with their belongings. In the ensuing proceedings by Matthews & Oliver for the eviction of the Mitchells referred to in paragraph 13 below, the Mitchells said they gained access to the house through a hole in the glass next to the front door which allowed them to unlatch the door from the inside. Matthews & Oliver however said the Mitchells gained access by breaking the doors. What was common cause, however, is that Matthews & Oliver were out at the time and when Matthews arrived back at the house the Mitchells told her that they had
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Breitenbach AJ
moved in because they were now the registered owners of the property. After an argument Matthews left with some of her belongings, saying the Mitchells would hear from her lawyers.
On 25 October 2011 Matthews & Oliver brought an application in this Court under case number 21507/11 for orders rescinding the default judgment granted by the Registrar in case number 1178/09 on 19 May 2009 (incorrectly stated in the notice of motion to have been granted on 15 May 2009) and setting aside the sale in execution of the property to Dadarker on 15 March 2011.
The respondents were FirstRand Bank and Dadarker. The Mitchells were not cited as respondents, although Matthews's founding affidavit mentions them as having 'invaded my house and forcefully evicted me, telling me they had bought the house'. It appears the reason the Mitchells were not cited as respondents was that a computerised Deeds Office search report obtained by Matthews & Oliver, though dated 20 October 2011, incorrectly did not reflect the registration of transfer from Dadarker to the Mitchells on 14 October 2011. It instead showed Dadarker as the being the registered owner of the property.
The facts and allegations supporting the application for rescission of the default judgment and the setting aside of the sale in execution, as they emerge from the various parts of Matthews's founding affidavit (which is not well structured), are as follows:
FirstRand Bank's summons in case number 1178/09 did not allege that Matthews & Oliver were in default or had otherwise breached any of the terms of the mortgage loan;
when Matthews received the summons she immediately approached the bank's attorneys, made an arrangement to pay and was told no further legal action against her would be taken;
she thereafter made payments in terms of the arrangements;
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Breitenbach AJ
she was not aware the bank had applied for default judgment;
neither the bank nor its attorneys told her that the default judgment had been granted and instead the bank continued to accept payments from her;
when she received a notice of the impending sale in execution she again approached the bank's attorneys and made another arrangement to pay (a reduced monthly amount) and was given an assurance that no further legal action against her would be taken;
thereafter she made payments in terms of the arrangement; she was not informed the property had been sold in execution;
she ignored the March and August 2011 letters from Dadarker attorneys demanding that she vacate the premises because she was continuing to make payments to the bank in accordance with their arrangement;
she subsequently caused a Deeds Office search to be done and found out the transfer of the property to Dadarker had been registered on 13 July 2011;
she would be approaching the court to regain possession of the property and 'in respect of registering the property in my name'; and
the granting of default judgment by the Registrar 'has been rendered unconstitutional' by 'recent Constitutional Court cases' (presumably a reference to Gundwana v Steko Development and Others 2011 (3) SA 608 (CC) ('Gundwana'), which followed Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) ('Jaftha')).
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Breitenbach AJ
On 26 October 2011 Matthews & Oliver brought an urgent application in this Court under case number 21566/11 against the Mitchells. In that application Matthews & Oliver sought the eviction of the Mitchells from the property and an interdict preventing them from re-occupying the property pending the finalisation of their application for rescission of the default judgment granted by the Registrar on 19 May 2009. In their answering affidavit the Mitchells said they would be filing and application for leave to intervene in the application for rescission because they had 'a substantial interest' in the property. (However, for a reason which is not apparent from the papers, the Mitchells did not bring the application for leave to intervene.)
On 26 October 2011, in case number 21566/11, this Court (per Cloete J), having heard the attorney for Matthews & Oliver in chambers, granted a rule nisi with interim effect requiring that, pending the determination the application for their eviction brought by Matthews & Oliver, the Mitchells vacate the property or face eviction by the Sheriff. The Mitchells thereupon vacated the property and Matthews & Oliver returned.
On 1 December 2011 this Court (per Saldanha J) granted, on an unopposed basis, the relief sought by Matthews & Oliver in case number 21507/11 referred to in paragraph 10 above, i.e. the orders rescinding the default judgment granted by the Registrar in case number 1178/09 on 19 May 2009 (again incorrectly referred to in the order as having been granted on 15 May 2009) and setting aside the sale in execution of the property to Dadarker on 15 March 2011. Saldanha J did not give reasons for his order, to which I shall refer as 'the rescission order'.
On 29 February 2012, in case number 21566/11, this Court (per Allie J) granted a final order that the Mitchells...
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