IN THE HIGH COURT OF SOUTH AFRICA /ES (TRANSVAAL PROVINCIAL DIVISION)

IN THE HIGH COURT OF SOUTH AFRICA /ES (TRANSVAAL PROVINCIAL DIVISION) CASE NO: 35051/2003 DATE: 3/9/2007 IN THE MATTER BETWEEN D SAMPO V M S SAMPO FIRST APPLICANT SECOND APPLICANT AND IVAN DAVIES THEUNISSEN INC P H MEYER ABSA BANK LTD THE SHERIFF OF THE MAGISTRATE'S COURT FOR THE DISTRICT OF SPRINGS FIRST RESPONDENT SECOND RESPONDENT THIRD RESPONDENT FOURTH RESPONDENT J U D G M E N T MAKGOKA, AJ [1] This is an application to set aside a sale in execution of property known as

2 Stand 40 and 41 Selcourt, Springs, situated at 14 Dandozi Road, Selcourt, Springs. The said property was sold in execution on 21 November 2003 by the sheriff of Springs, pursuant to an order granted by the magistrate's court Springs on 18 March 1996 in favour of the Third Respondent. The Second Respondent bought the said property at the sale in execution. [2] BACKGROUND The Applicants initially approached this court on an urgent basis on 11 December 2003 for an order that the sale in execution be set aside. The late PATEL J granted an order by agreement between the parties in the following terms: 2.1 the application was postponed sine die; 2.2 the First and Third Respondents were ordered to deliver their answering affidavits on or before 19 December 2003, whereafter the normal rules with regard to delivery of further affidavits and the enrolment of the application would be applicable; 2.3 pending the finalisation of the application, the Applicants would continue to make payment to the Third Respondent in the amount of R2 393,31 per month, which payments would be made on or before the seventh day of each month with the first payment on or before 7 January 2004. Such payments would be made without prejudice to any of the Third Respondent's rights; 2.4 pending the finalisation of the application, the property would not be transferred to the Second Respondent;

3 2.5 costs were reserved. [3] The Respondents delivered their answering affidavits on 19 December 2003, whereafter the Applicants only delivered their replying affidavit on 23 April 2004. The Applicants subsequent thereto, amended their notice of motion by insertion of two further prayers, namely 3.1 that the warrant of execution upon which the sale in execution was based, be set aside; 3.2 that in the alternative, an interim order be granted in terms of which the transfer of the property be stayed pending the finalisation of an action to be instituted. [4] The Respondents delivered an application to strike out certain paragraphs or portions of the Applicants' replying affidavit. The Applicants also delivered a duplicating affidavit. The gravamen of the application to strike out was that the Applicants' replying affidavit contained issues that should have been canvassed in the founding affidavit. [5] The Respondents' application to strike out was set down for 12 May 2004, on which day the application was postponed sine die at the instance of the Applicants. Costs were reserved. [6] The Applicants delivered a triplicating affidavit on 11 August 2004.

4 [7] The matter was then enrolled to 16 September 2004. LEDWABA AJ [as he then was] dismissed the Respondents' application to strike out, and then ordered that oral evidence be heard in respect of the disputes of fact in the application. The costs were reserved. [8] 0n 22 February 2005 the matter was erroneously enrolled on the opposed motion roll by the Applicants despite the order referred to above, in terms of which oral evidence had to be heard. HARTZENBERG ADJP [as he then was] amplified and crystalised LEDWABA J's order of 16 September 2005, and ordered that oral evidence should be heard in respect of the following factual disputes: 8.1 whether or not the Applicants and the Third Respondent, duly represented by Tracy Ann Sinclair, entered into an agreement in terms of which the sale in execution would be cancelled on condition that the Applicants pay the "arrears" in monthly instalments of R500,00; 8.2 whether or not the Applicants and the Third Respondent, duly represented by Tracy Ann Sinclair, entered into a second agreement in terms of which the sale in execution would be

5 cancelled on condition that the Applicants pay the amount of R10 000,00 to the First Respondent before 15:00 on 21 November 2003; 8.3 whether or not the Applicants complied with their obligations in terms of the second agreement. [9] This is how I became seized of the matter. I must at this stage record my appreciation to Mr 0osthuizen for his helpful Heads of Argument relating to the background of the matter. He was involved with the matter since its inception and helpfully took me through the various relevant periods of the matter. [10] THE PARTIES 10.1 The First and Second Applicants are married to each other in community of property. At all material times hereto the Applicants were owners of the property. A mortgage bond was registered over the property in favour of Allied Bank [later taken over by the Third Respondent] under bond number B72749/1994, in the amount of R166 800,00.

6 10.2 The First Respondent is a company incorporated in terms of the Companies Act of 1973, read together with section 23 of the Attorneys Act 53 of 1979. The First Respondent carries on practise of attorneys. The First Respondent acted as attorneys for the Third Respondent [herein referred to as "ABSA"]. For the purposes of this judgment, the First Respondent shall be referred to as "the attorneys". 10.3 The Second Respondent [Meyer] bought the property at a sale in execution held by the Fourth Respondent, who is the sheriff of Springs. [11] ORAL EVIDENCE Both the applicants testified. Their evidence is briefly as follows: 11.1 First Applicant The First Applicant, Mrs Duduzile Sampo, testified that originally her husband was responsible for the bond repayments on the property. That was between 1995 1996. She was still at college training as a teacher. She took over such bond repayments from May 2003. During 0ctober 2003 they received a notice of sale in execution of the property. 0n 5 November 2003 she went to make

7 arrangements with the First Respondent. She there spoke to Ms Tracy [herein referred to as "0livier"] and the latter indicated to her that the bond account was in arrears in the amount of R10 000,00. She offered to pay R500,00 per month with immediate effect. This would have been in addition to the regular monthly repayments, which were deducted from her salary. 0livier then said she could pay the amount. After payment she went back to 0livier and gave her the receipt. 0livier then told her she would speak to the Third Respondent and if there was a problem she, 0livier, would telephone her. She left both her cell phone as well as her work numbers with 0livier. Since then 0livier did not contact her again. She was under the impression that 0livier was an attorney for ABSA. 11.2 0n 20 November 2003 at approximately 19:30 the Second Applicant, being her husband, received a telephone call from an unknown person who identified himself as an attorney. He indicated to the Second Applicant that their house was up for sale in execution the following day, 21 November 2003. The Second Respondent corroborated this in his evidence. The First Applicant also spoke to that person who further told her that he could assist them, but they should, the following day, go to the offices of the

8 First Respondent. 11.3 0n the morning of 21 November 2003 at approximately 08:00 she and the Second Applicant went to the offices of the First Respondent. They spoke to 0livier and requested an explanation regarding the telephone call they received the previous day. 0livier told them she tried to phone the First Applicant to tell her that ABSA did not accept the offer of R500,00. There was nothing she could do at that stage. She confirmed the sale in execution for that day at 15:00. 0livier further told them unless an amount of R10 000,00 is paid before 15:00 that afternoon the property would be sold in execution. She then went out to look for the money. She had R1 000,00 with her, her sister gave her another R1 000,00 and her mother in law gave her R5 000,00. They were unsuccessful to source more funds from her mother in law's investment. 11.4 It was approximately 12:12 when they went back to see 0livier. 0n that occasion the First Applicant was accompanied by her mother in law and the Second Applicant. They had R7 000,00 at that stage. Attempts to persuade 0livier to accept R7 000,00 were unsuccessful. They then approached her brother, who at 14:15 drew an amount of R3 000,00 and gave it to them. At 14:45 they

9 were at the offices of the attorneys with the R10 000,00. Upon arrival 0livier was not there. The receptionist did not tell them where 0livier was. At approximately 15:55 0livier came in. She was in the company of a lady and the Second Respondent. She did not tell them where she came from. When 0livier arrived they offered the R10 000,00 to her. She then indicated that the property had been sold in execution already to Meyer. Meyer told them they could arrange for payment of occupational rent if they wished to occupy the property. 11.5 Mr Simon Sampo [second applicant] In the main, the Second Applicant confirmed what the First Aespondent had told her about the arrangement she made with 0livier on 5 November 2003, the telephone call that notified them about the sale in execution, their attendances at attorneys' offices, as well as sourcing of the money that ultimately made up the R10 000,00. Where he differs with the First Applicant, he testified that on 21 November 2001, the date of the sale, they arrived at the attorneys' offices at approximately 14:00 or soon thereafter, whereas the First Applicant stated that they arrived at 14:45. He further testified that when 0livier came back, it was before 15:00, whereas the First Applicant testified that it was 15:55.

10 11.6 Mrs Hlophe Johanna Sampo Mrs Sampo [snr] is the mother of the Second Applicant and therefore the mother in law of the First Applicant. Briefly her evidence is that when the Applicants approached her on 21 November 2003 with request for money, they had R2 000,00. She gave them R5 000,00. She accompanied the Applicants to the attorneys' offices on 21 November 2003. This was on the second occasion when attempts to persuade 0livier to accept R7 000,00 were not successful. She was also present on the third occasion at the offices of the attorneys on 21 November 2003. They arrived at between 14:30 14:40. That concluded the Applicants' case. [12] FIRST AND THIRD RESPONDENT'S WITNESSES The Respondents called four witnesses, Mrs Tracy Anne 0livier, Mrs Francisca Alme van Rensburg, Mr Glen Landsman as well as Mr Petrus Hendrik Meyer. 12.1 Ms Tracy Anne 0livier [formerly Sinclair] Ms 0livier is a secretary at the attorneys' offices. Their office is adjacent to that of the sheriff. There is only one entrance to the

11 offices of the attorneys. She is responsible for arranging sales in execution. She prepares the relevant documents and once the attorney responsible had signed them she proceeds to arrange the sale in execution. She does not possess a power of attorney to make arrangements without the client's authority. For this matter she sent the letter to the Applicants informing them of sale in execution. It is common practice for ABSA to make arrangements to stop sales in execution. If she consults with people she makes notes of the consultation. The Applicants consulted her on 13 0ctober 2003. The First Applicant offered R500,00 per month. 12.2 She told them she would talk to ABSA about the offer and that they should come in a week to see her, since she did not have the authority to accept the offer without the consent of ABSA. She denied that she undertook to telephone the First Applicant in case there was a problem with her offer. She further testified that as of 13 0ctober 2003, the First Applicant was already aware of the sale in execution. Between 7 21 November 2003 she did not have contact with the Applicants. ABSA did not accept the offer of R500,00 as this was the third sale in execution. 0n the morning of 21 November 2003 the Applicants came to see her. They told her they had R1 500,00. She told them she had received instructions

12 from ABSA that they must pay R10 000,00 in cash, then the sale would be stopped. She further told them that this amount had to be paid by 14:00. They left and came back just after 14:00. They still did not have the R10 000,00. 0n that occasion the Applicants were accompanied by an elderly lady. She then gave them until 14:55 to pay the R10 000,00. By 14:55 they were not at their offices. She enquired from the receptionist whether anybody had phoned and she indicated nobody called. She went out with Mr Glen Landsman, the attorney, to the sale in execution. It was after 15:00 when they left. She stated that the attorneys' offices had only one exit, and therefore it would be impossible that she could have gone out without people in the reception not noticing her. 12.3 At auction, there were two auctions before that of the Applicants. The auction took place after 15:00. The sale of the Applicants' property then took place. Thereafter, another employee of the attorneys, Yolandi, called and told her that the Applicants were at the offices. She went back to the offices where she confirmed to the Applicants that their property had been sold. She called Meyer, who had just bought the property, and enquired whether he would be inclined to cancel the sale. The Applicants at that stage still did not have R10 000,00 but R7 000,00. They told her so. They were

13 in the company of another man, whom they requested to pawn the Second Applicant's vehicle for R10 000,00. She did not remember what the auction price of the property was. Landsman bid on behalf of ABSA. 12.4 Mrs Francisca Alme Janse van Rensburg Mrs Janse van Rensburg is a receptionist of the attorneys since February 1996. She was aware of the sale in execution on 21 November 2003. 0n that particular day at 14:55 she received a telephone call from the sheriff, being the Fourth Respondent. The sheriff informed her that there was no representative from the attorneys at the auction. She then informed 0livier and Mr Landsman. She confirmed the telephone call from Telkom Call Particulars. Five minutes after she informed them of the sheriff's message 0livier and Landsman left through the reception which is the only exit. At that stage the Applicants were not there. The First Applicant and her family arrived at 15:15. The Applicants spoke to Yolandi. Later 0livier returned and had discussion with the Applicants in her office. The Applicants were with a family member and an elderly lady. 12.5 Mr Glen Landsman

14 Mr Landsman was admitted as an attorney of this court in 2002. He is employed by the attorneys. 0n 21 November 2003 he left with 0livier for the auction at approximately 15:00 or soon thereafter. The office of the sheriff is next door to their offices. There were two other sales before that of the Applicants' property. He and others bid for the Applicants' property. He bid on behalf of ABSA. The Applicants' property was sold at approximately 15:10. After the sale Yolandi from their office called 0livier and he had to remain for formalities. He further testified that neither himself nor the secretary has a mandate to accept arrangements without ABSA. He denied that the auction of the Applicants' property took place before 15:00. 12.6 Petrus Hendrik Meyer Mr Meyer is the Second Respondent. He is a property speculator for the past seven years. He purchased the Applicants' property at the sale in execution on 21 November 2003. By 15:00 he was at the auction where the auction conditions were read to them. There were two sales before the auction of the Applicants' property. He denied that the auction started before 15:00. At the time of the sale, he was not aware of negotiations between the Applicants and the Third Respondent. He had no prior contact with the Applicants.

15 After the sale 0livier phoned him and informed him that the Applicants wanted the property back and he indicated he was not interested. [13] That in brief was the evidence presented by both parties. [14] Turning now to an evaluation of the different factual versions presented on behalf of the parties, the step by step process to be followed has been restated by NIENABER, JA in Stellenbosch Farmers Winery Group Ltd and Another v Martel et Cie and 0thers 2003(1) SA 11 [SCA] as follows at 14I J; 15A D: "The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on: (a) (b) (c) the credibility of the various factual witnesses; their reliability; the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness box;

16 (ii) (iii) his bias, latent and blatant; internal contradictions in his evidence; (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions; (v) the probability or improbability of particular aspects of his version; (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question; and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each disputed issue. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's

17 credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail." [15] I now turn to the evidence before me in this matter. It was particularly in relation to the events of 21 November 2003 that there was a wide divergence in the evidence of the Applicants on the one hand, and that on behalf of the Respondents, on the other. In particular, the time of the arrival of the Applicants on the third occasion at the offices of the attorneys becomes crucial. The First Applicant maintained that they arrived at the offices of the attorneys at 14:45, while the Second Applicant estimated the time to have been much earlier at approximately 14:00. Mrs Sampo [snr] also testified that they arrived between 14:30 14:40. The thrust of their evidence is therefore that they arrived at the offices of the attorneys before 15:00. This is disputed by 0livier and Janse van Rensburg. There is also a dispute as to the amount of money the Applicants had on that occasion. According to the Applicants they had R10 000,00 while 0livier testified that they had R7 000,00. [16] In assessing the reliability of the witnesses on this aspect, I bear in mind that the evidence was given almost four years after the events. Human

18 memory is inherently and notoriously liable to error. 0ne knows that people are less likely to be complete and accurate in their accounts after a long interval than after a short one. It is a matter of common experience that, during the stage of retention or storage in the memory, perceived information may be forgotton or it may be modified or added to, or distorted by subsequent information. 0ne is aware too that there can occur a process of unconscious reconstruction. [See Commissioner for Inland Revenue v Pick n Pay Wholesalers 1987 3 SA 453 at 469F G.] [17] Bearing in mind the above considerations, I now proceed to evaluate the evidence of the various witnesses on this aspect, namely the time the Applicants arrived at the offices of the attorneys on the third occasion on 21 November 2003. 17[1] First Applicant (Mrs Duduzile Sampo) By at large the First Applicant made a very poor impression on me as a witness. It is true that she was subjected to a long, arduous and thorough cross examination by Mr 0osthuizen. She evaded questions, was long winded in her answers, she adjusted her evidence as she was confronted in cross examination. I found her version to be untruthful, implausible and unreliable. She contradicted almost entirely, the contents of her founding affidavit

19 and annexures thereto. For example she denied that she received the notice of sale in execution which was attached to her own affidavit and despite the fact that she referred to the said notice in her founding affidavit. I have had ample opportunity of observing her demeanour in the witness box during the trial, and I noticed a marked deterioration in her demeanour as the trial progressed. As regards the events of 21 November 2003, it is highly improbable that they could have arrived at the offices of the First Respondent at the time she testified she did. Earlier during the day 0livier had given them up to 14:55 to pay the R10 000,00 upon which the sale would be stopped. 17[2] It is improbable that 0livier could have left for the auction anything earlier than 15:00. At 14:55 a call came from the sheriff, the Fourth Respondent. He spoke to Janse van Rensburg and alerted to her that there was no representative from the attorneys as the auction was about to begin. This is a crucial piece of evidence. The time of this call is corroborated by an independent document, the Calls Particulars Report from Telkom. As a result of this call Janse van Rensburg alerted 0livier. This leads to the inescapable conclusion that at that stage 0livier was still in the office and the Applicants were not there. The evidence of the Second Applicant and Mrs

20 Sampo [snr] do not take the matter further and the remarks made above are equally applicable to their evidence. 17[3] 0livier and Janse van Rensburg In approaching the evidence of these two witnesses, I similarly take into account the fact that almost four years had lapsed between the events and the evidence of which they testify. 0f importance I must be mindful of the fact that these witnesses are loyal employees of the attorneys, and in turn the attorneys and ABSA have a commercial relationship. I must therefore approach their evidence with these considerations in mind. However, I have not found any inherent contradictions or improbabilities in their evidence. Both presented their evidence in an honest and coherent manner. Where objective facts demanded concessions to be made, they did so. They struck me as honest and upright individuals. I find them to be reliable witnesses. It follows that their evidence must be decisive unless cogent reasons exist as to why their evidence should not be accepted. Mr Swiegers, on behalf of the Applicants, correctly in my view, did not seriously urge me to reject their evidence. Accordingly their evidence is accepted. [18] It was then argued on behalf of the Applicants that in any event, the

21 attachment on the property lapsed in terms of section 66(4) and (5) of the Magistrates' Courts Act. Section 66 [2], [3], [4] and [5] provide: "(2) No immovable property which is subject to any claim preferent to that of the judgment creditor shall be sold in execution unless (a) the judgment creditor has caused such a notice in writing of the intended sale in execution to be served personally upon the preferent creditor as may be prescribed by the rules; or (b) the magistrate or additional or assistant magistrate of the district in which the property is situate has upon application of the judgment creditor and after enquiry into the circumstances of the case, directed what steps shall be taken to bring the intended sale to the notice of the preferent creditor, and those steps have been carried out, (3) A sale in execution of such immovable property as is referred to in subsection (2) shall take place within such period of the date of attachment and in such manner as may be provided by the rules. (4) If a sale referred to in subsection (3) does not take place or the immovable property concerned is not released from

22 attachment within a period of one year from the date of attachment, such attachment shall lapse. (5) The court may, upon application and at the expense of the judgment creditor, after due notice of such application has been given to the judgment debtor, extend the period of one year referred to in subsection (4) by further periods of one year each." [19] It is common cause that the attachment of the property was initially made in 1996 and that no application was made in terms of section 66(5) of the Act for the extension of the period of one year in terms of section 66(4) of the Act. There is no evidence before me that the property in this case is one envisaged in subsection (2) of the Act, namely "property which is subject to any claim preferent to that of the judgment creditor". Mr Swiegers on behalf of the Applicants submitted that since it has special hypothec over the property ABSA then is a preferential creditor within the meaning of subsection (2), and therefore subsection (4) is applicable. This submission is untenable. Subsection [2] of the Act clearly envisages a creditor other than the judgment creditor. In September and Another v Nedcor Bank Ltd and Another 2005 [1]

23 SA 500 (C) DLODLO J, after researching the background to the enactment of the present section 66, came to the conclusion that subsection (4) thereof applies only to an attachment of immovable property which is subject to a preferent claim, at 507C and 508E. [20] In view of the totality of the matter, I answer the factual disputes referred for oral evidence in the following manner: 20[1] there was no agreement reached between the Applicants and the Third Respondent represented by 0livier in terms of which the sale in execution would be cancelled on condition that the Applicants pay the "arrears" in monthly instalments of R500,00; 20[2] as regards the second question, I find that indeed such agreement came into being in terms of which the sale would be cancelled if the Applicants paid an amount of R10 000,00 on 21 November 2003 before 15:00; 20[3] on the third question, my finding is that the Applicants did not comply with their obligations in terms of the second agreement. [21] In the light of the above, the application must fail.

24 [22] In the premises I make the following order: 22 [1] The application is dismissed with costs, including the costs reserved on 22 February 2005 and 11 December 2005. 22 [2] First and Third Respondents are ordered to pay the costs of 16 September 2004. COURT 35051 2003 T M MAKGOKA ACTING JUDGE OF THE HIGH HEARD ON: 10, 13 AND 14 AUGUST 2007 COUNSEL FOR APPLICANTS: SWIEGERS ATTORNEY FOR APPLICANTS: GROENEWALD & JORDAAN INC COUNSEL FOR 1 ST AND 3 RD RESPONDENTS: H F OOSTHUIZEN ATTORNEY FOR RESPONDENTS: IVAN DAVIES HAMMERSCHLAG DATE OF JUDGMENT: 3/9/2007