Van den Bos NO v Mohloki and Others

• Jurisdiction: South Africa
• Judge: Gilber AJ
• Judgment Date: 02 September 2021
• Court: Gauteng Local Division, Johannesburg
• Hearing Date: 02 September 2021
• Counsel: N Lombard for the applicant. N Kubayi (attorney) for the first and second respondents.
• Docket Number: 2020/11190 and 2020/11191

Gilbert AJ:

[1] Can, and should, this court as a division of the High Court declare immovable property specially executable pursuant to orders granted in the magistrates' court? Further, does Uniform Rule 46A apply only in respect of execution against residential immovable property that are the primary residences of judgment debtors, or to all residential immovable property?

[2] The relevant facts for purposes of the judgment can be briefly stated.

[3] The applicant acts in his capacity as a court appointed administrator of the Panarama Place body corporate for a sectional title scheme established in terms of the Sectional Titles Act 95 of 1986. The sectional title scheme is situated in Berea, Johannesburg.

[4] The relevant respondents are registered owners of sections (units) in the sectional title scheme. The applicant acting in his capacity as administrator of the body corporate obtained orders by default against the relevant respondents in the Johannesburg Magistrates' Court for arrear contributions and other charges owing to the body corporate.

Gilbert AJ

Attempts to execute on warrants of execution issued out of the magistrates' court were unsuccessful as no attachable movable assets belonging to the respondents could be found at the units, with the deputy sheriffs rendering nulla bona returns of service. Applications by the respondents in the magistrates' court for rescission of the default orders failed. The respondents have sought to appeal the refusal of the rescissions to the High Court. The applicant contends that the respondents are not pursuing those appeal proceedings with any vigour.

[5] The applicant seeks to paint a picture of the respondents being recalcitrant owners who have not paid their contributions and other charges owing to the body corporate for many years, and so much so that the judgment debts exceed the municipal values of the sectional title units. The respondents on the other hand seek to paint a picture of an administrator who does not genuinely seek to advance the interests of the body corporate and the sectional title owners, and who refuses to properly account for payments that he has received. It is unnecessary for me to decide which of these pictures is correct as I am bound to proceed on the basis that the orders granted in the magistrates' court stand until rescinded or set aside on appeal. Although the respondents, who were represented in the hearing before me by their attorney, Mr Kubayi, asserted that execution proceedings are stayed until the appeal proceedings in respect of the rescission applications have been determined, this is not so. [1]

[6] The applicant, relying upon the nulla bona returns of service rendered pursuant to the warrants of execution issued out of the magistrates' court, launched these present proceedings in the High Court to declare the units as immovable properties specially executable, and to authorise that writs of execution be issued in terms of Uniform Rule 46(1)(a).

[7] Before the hearing of the matter, I requested the parties to make submissions [2] whether the High Court has jurisdiction to, and should, declare immovable properties specially executable in relation to judgments granted in the magistrates' court. My concern was that it was not readily apparent to me that the High Court should be approached to

Gilbert AJ

declare immovable property executable pursuant to orders granted in the magistrates' court and where the execution process had been initiated in the magistrates' court.

[8] I was informed by applicant's counsel that it was not unusual for this division of the High Court to grant such orders but that she was unable to locate any judgments squarely on point. I too was unable to find any judgments squarely on point.

[9] The applicant's primary submission was that this court did have jurisdiction to declare immovable property executable, and as the applicant had elected to come to this court seeking such a declaration, this court was obliged to hear the application. I was referred to the recent decision of Standard Bank of South Africa Ltd and Others v Mpongo and Others 2021 (6) SA 403 (SCA) [3] where Sutherland AJA for the Supreme Court of Appeal in a strongly worded judgment held that the High Court must entertain matters within its territorial jurisdiction if brought before it although the magistrates' courts may have concurrent jurisdiction and that the High Court must respect an applicant's choice of forum. [4] The applicant's submission was that this was dispositive of the concern that I had raised.

[10] Sutherland AJA went further in Mpongo and found that there was no obligation in law on financial institutions to consider the costs implications and access to justice of financially distressed people when a particular court of competent jurisdiction is chosen in which to institute proceedings. [5] Mr Kubayi for the respondents before me argued that financially distressed people in the position of the respondents should not have to litigate in the High Court in relation to their sectional title units. Apart from this argument being contrary to Mpongo, the respondents have not placed sufficient, if any, evidence before the court to enable me to decide whether financially distressed persons typically in the position of the respondents are worse off if an applicant approaches the High Court to declare sectional title units specially executable. Sutherland AJA in Mpongo warned against the court making findings based upon an appeal to constitutional values in abstract [6] and upon generalised and speculative conclusions with no proper evidential foundation. [7]

[11] Applicant's counsel specifically drew my attention to para 48 of Mpongo where the court found favour with the submissions made by the financial institutions as applicants in those matters that High Court proceedings had the benefits of judges, rather than magistrates, overseeing the process of...