IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No. 51/2014
In the matter between
ROBERT NKAMBULE Applicant
and
RODGERS BHOYANA DU-PONT 1st Respondent
THE DEPUTY SHERIFF FOR THE
DISTRICT OF MANZNI 2nd Respondent
THE SWAZILAND COMMISSIONER OF
THE ROYAL SWAZILAND POLICE 3rd Respondent
SWAZILAND BUILDING SOCIETY Third Party
Neutral citation: Robert Nkambule v Rogers Bhoyana Du Pont (51/2014) [2015] SZHC 62 (7 April 2015)
Coram: MAMBA J
Heard: 27 February, 2015
Delivered: 7 April 2015
[1] Civil Law and Procedure – Lender obtaining default judgment against borrower. Immovable property declared executable and sold at a public auction sale after due notice and publication. Purchaser of property demanding eviction of judgment debtor.
[2] Civil law and Procedure – Application for eviction. Previous owner resisting eviction and claiming that sale to applicant tainted by fraud perpetrated by judgment creditor/Bank. Allegation that lender agreed to cancel auction sale and such denied by bank who claims that such was merely a conditional proposal that was never met by judgment debtor. No evidence of such agreement. Application for ejectment granted.
[3] Civil Practice and Procedure – application for rescission of judgment in terms of rule 42(1) of the rules of court; that application erroneously sought and granted. Court not restricted or confined to what appears ex facie the court record when judgment sought to be rescinded was granted. Applicant may submit to the court any material, that if it had been brought to the attention of the court then, the court would have refused to grant the judgment.
[1] After hearing argument or submissions from to all the parties herein on 27 February, 2015 I granted the application as prayed and indicated that my reasons for doing so will follow in due course. Hereunder are those reasons.
[2] The first respondent, was until 01 June 2012, the owner of farm 769, situate in the Manzini Dirstrict (hereinafter referred to as the property). This property was sold by the second respondent to the applicant on that day during a public auction sale pursuant to a default judgment granted by this court on 16 March 2012. The property had been declared executable in that judgment following the fact that the first respondent was indebted to the third party as a result of a loan granted by the latter to the former.
[3] The first respondent is still in occupation of the property notwithstanding the sale thereof referred to in the preceding paragraph. He, the first respondent, it is common ground, does not have the permission of the applicant to be in occupation thereof and has infact refused to vacate the property, despite repeated calls or demands to do so by the applicant. It is this refusal by the first respondent to vacate the property that has prompted and or culminated in this application. The applicant seeks the ejectment or eviction of the first respondent from the property and that the other respondents be authorized to give effect to such order. There is no order for costs or any other alternative relief being sought against any of the respondents.
[4] This matter has a chequered and perhaps vexed history. It began with the issue of summons by the third party against the first respondent in or about 2012, the outcome of which was a default judgment being granted by this Court on 16 March 2012. In response to this judgment, the first respondent filed an application for the rescission thereon under case number 1235/2012. In that application, the first respondent also sought an order interdicting and restraining the Registrar of Deeds from registering and transferring the property into the name of the applicant.
[5] The basis of the rescission application was that the default judgment had been sought and granted in error as defined under rule 42(1) of the rules of this court. It was the first respondent’s contention that an oral agreement had been reached between him and the third party not to proceed with the court action whilst certain measures were being put in place on how he would liquidate his indebtedness to the third respondent. He argued or submitted that these new terms constituted a novation of the original terms between the parties. He averred in essence, that had the court been made aware of these new terms, it would not have granted the default judgment. He set out these terms of the new agreement
[6] By judgment of this Court, delivered on 13 September, 2012, the rescission application was dismissed. The court held that:
‘[23] As indicated above, the facts of the matter do not reveal the error complained of. It is therefore not correct to say there was an agreement settling the dispute between the parties as at the time the judgment by default was granted and therefore that same was granted erroneously. The applicant has failed to establish this error. Again and as observed, what one sees from the facts is a proposal for the settlement which was however expressly declined by the first respondent.
…
[25] I should make myself clear that I am not going to decide the issue whether or not subsequent to the judgment there was any agreement reached between the parties and what its effect is in law if it was there. … I only have to confine myself to the issue before me which is whether there was an error as at the time the judgment by default was entered’.
The Court then, in passing, referred to Bakoven Ltd v G.J Howes
(Pty) Ltd 1992 (2) SA 466 and said
‘[28] The point being made here is that if there was an error to result in the rescission of the judgment, such an error should be one appearing ex facie the record. An error about an alleged agreement that is not pleaded not disclosed ex facie the record cannot succeed in my view. In this light I am convinced that even if there was an agreement reached by the parties, such would not quality to found the error envisaged by rule 42(1) of the Rules of Court if it was not before the court at the time the matter was heard, particularly where no appearance to defend had been filed.’
[7] Whilst I agree that the above remarks do seem to represent what is stated in Bakoven (supra), (see also Motsa, Mgobodze v Khumalo Sam, In re Khumalo Sam v Motsa Mgobodze, 2000-2005 (1) SLR 74 at 78, Dlamini, Polo v Nsibandze, Martha; In re Nsibandze, Martha v Dlamini, Polo 2000-2005 (1) SLR 13 and DDM Estates (Pty) LTD and Another v Standard Bank Swaziland LTD and Another, 2000-2005 (1) SLR 159 at 168). I am, with due respect, constrained not to agree that this is the correct interpretation of the rule in question. For the rule to find application, the court – in the rescission application – is not confined or restricted to what appears on the record or what was pleaded then. The applicant in the rescission application is at liberty to submit to court any material which, if the court that granted the default judgment was aware of and had been made aware of at the time, would not have granted it. In Nyingwa v Moolman NO 1993(2) SA 508 (T) at 510, the court stated:
‘It therefore seems that a judgment has been erroneously granted if there existed at the time of its issue a fact of which the judge was unaware, which would have precluded the granting of the judgment and which would have induced the judge, if he had been aware of it, not to grant the judgment.’ See also H.J. Erasmus, Superior Court Practice (1994 at B1-308).
[8] Dissatisfied with the outcome of the rescission application, the first respondent filed an appeal. This appeal was also dismissed by the Supreme Court on 31 May 2013.
[9] What is significant about the above two judgments – bar the default one – is that the court rejected the contention by the first respondent that there was ever an oral agreement, either not to proceed with the action by the third party or to sell the property. These are the very same issues or contentions raised by the first respondent in this application in an attempt to resist his ejectment from the property. However, this court is mindful of the caveat by Hlophe J in the rescission application that the court was then only asked to decide whether or not such an agreement existed before the default judgment. That issue having been definitely determined by this court and the Supreme court, remains so definitely and finally decided. It is a closed matter. This court cannot re-open it and enquire into its validity or otherwise. Consequently, the first respondent’s purported defence herein cannot and do not constitute a defence against his eviction from the property, based on any agreement allegedly concluded prior to the default judgment.
[10] I now examine whether or not there was an agreement entered into between the third party and the first respondent regarding the sale or disposal of the property after the default judgment. I emphasise from the outset that in doing so, I take into account or consideration the third party’s overall assertion that there was never ever such an agreement, although there were negotiations aimed at averting a total fall-out between the parties. The third party states that its demands were never met by the first respondent. Besides, the Third party states that in negotiating with the first respondent, it was made absolutely clear to the latter that such negotiations did not constitute a waiver or novation of its rights and obligations as contained in the mortgage bond.
[11] The Third party does of course confirm that the negotiations for the settlement of the dispute continued after the default judgment was granted. Some of the third party’s demands were that the first respondent must settle all arrears, legal fees or costs, submit and cause all tenants on the property to pay their monthly rentals to the third party and also submit a reputable estate agent to the third party who would be responsible for the rental collection. All these conditions had to be met or complied with to constitute a new agreement. The first respondent failed to, inter alia, submit a name of the required Estate Agent and some of the tenants refused to pay their rentals to the third party; claiming that they had expended money on some improvements to the property and they were entitled to deduct such expenditures from their monthly rentals to the first respondent. (See for instance the letter by Thabsile B. Malinga at page 170 of the Book of Pleadings). This letter is dated 7 June 2012, a date clearly after the default judgment and after the sale of the property).
[12] The first respondent has strenuously argued that he was also made to pay legal fees which included the cancellation of the sale of the property. This has, however, been explained adequately in my judgment, by the attorneys of the third party. They have explained that the statement of fees was prepared and submitted based on the contingency that the sale would be cancelled; ie on the assumption that the first respondent would comply with the third party’s demands and the auction sale would then be cancelled. (See Page 178 of the Book of Pleadings).
[13] The first respondent has also stated that the sale of the property to the applicant was unconstitutional. There are not specific averments why this is the case. One can only assume or surmise from the sentence that immediately follows this allegation wherein the first respondent states that ‘…I verily believe that notice is very important …[and] it was wrong to sell my property to applicant based on an old notice of sale which I had been made to believe it was cancelled.’ Again, the evidence which the court has found credible and acceptable is that there was no cancellation of the auction sale, although a promise had been made to do so if and when the first respondent complied with all the demands laid down by the Third party. The notice of sale (at 173 of the Book of Pleadings) stated that the property would be sold on 01 June 2012. The property was sold on that date. After that date, the property belonged to the applicant and the third party had virtually no right to enter into any negotiations pertaining it with third parties, including the first respondent.
[14] Once again, the issues that were covered in the Rescission application are beyond the scope of this court in these proceedings. They, however, together with those raised in this application, do not constitute a defence for the first respondent in this ejectment application. The discussions or negotiations that took place between the parties never crystalized into an agreement.
[15] For the foregoing reasons, the application was granted as prayed.
MAMBA J
For the Applicant : Mr. L.R. Mamba
For the First Respondent : Ms. Mazibuko
For the Third Party : Mr. S.V. Mdladla
