IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG

(REPUBLIC OF SOUTH AFRICA)

CASE NO.30487/12

In the matter between:

YAO KOUKASSI PHILLIPE KOUAKOU First Applicant

MABEL MATSHIDISO KOUAKOU Second Applicant

and

ABSA BANK LIMITED First Respondent

REGISTRAR OF DEEDS Second Respondent

MIDVAAL LOCAL MUNICIPALITY Third Respondent

FIRST RESPONDENT’S SHORT HEADS OF ARGUMENT

1. The Applicants obtained a home loan from the First Respondent for the

purchase of certain immovable property (“the Immovable Property”). The

First Respondent held two mortgage bonds over the Immovable Property as

security for the monies lent and advanced to the Applicants.

2. The Applicants defaulted on the repayment of the home loan in 2007. After

various discussions and repeated demands for payment the Applicants

remained in default and judgment was sought and granted in favour of the

First Respondent in the Vereeniging Magistrates’ Court. In terms of the

judgment the Immovable Property was also declared especially executable

and was duly sold by the Sheriff (Veeeniging) in the public auction held on 8

November 2007.

3. The applicants have since the sale of the Immovable Property pursued

litigation in this Honourable Court as well as the Vereeniging Magistrates’

Court, against various parties and always including the First Respondent. In

terms of the present application the Applicants seek a mandatory interdict in

terms of which the Immovable Property is to be “re – transferred” into their

names, some 4 years after the Immovable Property was sold in execution.

4. The First Respondent opposes such relief on a number of grounds set out below.

No Cause of Action is disclosed as against any of the Respondents

5. The Applicants seek the “re-transfer” of the Immovable Property into their own

names on the basis that the sale in execution was irregular, premature and

malicious1.

6. The first ground for the application appears to be that the Applicants believe that

the document titled “Conditions of Sale” was not properly executed by the “seller”

and that the transfer of the Immovable Property to the purchaser was, for this

reason, unlawful2.

1 Founding Affidavit (“FA”) page 11, paragraph 15; FA page 11, paragraph 18; FA page 13, paragraph 27. As the application is not paginated as at the date of filing of these heads of argument, the references to pages are references to the page numbers as they appear on the FA and the Answering Affidavit “AA”.2 FA page 11, paragraph 18

7. The second ground appears to be the Applicants’ erroneous belief that their debt

to the First Respondent was “set off” in 20093 when this clearly is not the case.

The First Respondent issued a statement to the Applicants in terms of which it

reflects that the amount still owed by the Applicants to the First Respondent,

following the sale in execution, was written off by the First Respondent. The

Applicants appear to have erroneously understood this to be evidence of “set –

off” as opposed to “write – off”4.

8. The role of the First Respondent in the matter ended once the Immovable

Property was sold in execution and the First Respondent received the amounts

realised in that sale and accordingly no relief can be sought as against the First

Respondent.

9. The grounds for the application disclosed by the Applicant do not make out a

cause of action for a mandatory interdict (whether interim or final) – either against

the First Respondent, or against any other Respondents. Not only do the grounds

in the founding affidavit not disclose any cause of action, the allegations of

irregularity and maliciousness are entirely ill conceived.

10. The Immovable Property was lawfully and properly transferred to the purchaser in

the public auction. It has been held5 that where all the formalities of transfer had

been complied with and accepted by the Registrar of Deeds, and where transfer

had been registered by him in the deeds registry, a formally valid transfer exists

and remains valid until set aside by an order of Court. Furthermore, section 70 of

the Magistrates’ Court Act specifically states that “…a sale in execution by the

3 FA Page 15, paragraph 344 AA Page 9, paragraph 225 Knysna Hotel CC v Coetzee NO 1998 (2) SA 743 at 747 - 748

messenger shall not, in the case of movable property after delivery thereof or in

the case of immovable property after registration of transfer, be liable to be

impeached as against a purchaser in good faith and without notice of any defect.”

11. The transfer to the new purchaser cannot be validly challenged by the Applicants

in circumstances where they fail to join the purchaser of the Immovable Property

(being the transferee) to this application. Furthermore, the transfer is not

challenged on the basis of fraud or mala fides of the purchaser. In relation to the

First Respondent, the Applicants appear to contend only that the sale in

execution was “malicious” because their offers of coming to an arrangement with

the First Respondent were not accepted and that the Immovable Property was

sold in execution at the instance of the First Respondent as judgment creditor.

Finally, the applicants contend that ‘irregularities” in relation to the signature of

the Conditions of Sale document render the transfer ‘unlawful’. Any irregularity (it

being denied that any irregularity exists, but to the extent that this Court finds that

it does, such an irregularity can, in any event, only be explained only by the

purchaser) is precisely what is protected by the provisions of section 70 of the

Magistrates’ Courts Act6.

Non Joinder

12. The new owner of the Immovable Property has not been joined to the present

application, despite the fact that the new owner has been at pains to assert his

ownership rights. On this basis alone, the appliation falls to be dismissed with a

special order as to costs.

Lis Alibi Pendens

6 Chasfre Investment (Pty) Ltd v Majavie And Others 1971 (1) SA 219 (C) at page 221

13. On 30 July 2012 the Applicants launched an application in the Vereeniging

Magistrates’ Court for the same relief sought in the present application, and

against the same parties.

14. The proceedings in the Vereeniging Magistrates’ Court have not been finalised,

and are currently pending before that Court. The applicants, however, seek to

“transfer” the application pending in the Vereeniging Magistrates’ Court to this

Honourable Court, which they cannot do.

15. On this basis alone, the application falls to be dismissed with a special order as

to costs.

Res Judicata / Issue Estoppel

16. On 22 June 2011 the Applicants launched an application in the Vereeniging

Magistrates’ Court in terms of which they sought the rescission of the judgment

granted by default and in terms of which the Immovable Property was made

specially executable. This application was dismissed with costs7. Subsequently

the Applicants launched a further application in terms of which they sought the “re

– transfer” of the Immovable Property into their own names, and this application

was struck off the roll with costs8.

17. It is submitted that the property cannot be “re – transferred” into the names of the

Applicants unless the order of the Vereeniging Magistrates’ Court dated 5 June

2007 is rescinded. The application to rescind the order in question has already

7 AA page 14, paragraph 29.48 AA page 14, paragraph 29.6

been dismissed with costs. The issue has therefore already been fully and finally

adjudicated upon, as between the First Respondent and the Applicants.

18. It is accordingly respectfully submitted that the present application is devoid of

any merit and falls to be dismissed with a special order as to costs.

_____________________________

Ana MilovanovicCounsel for the First Respondent

6 December 2012