Pretoria - When the Sheriff of the Court arrived at a home in Bela Bela to issue summons on the homeowner, Anet Maré, he said he attached a copy to the gate and to the grass.
But Maré said she did not get the summons and so had no idea of pending legal proceedings against her, or of the bank's plan to sell the house from under her.
Now the Gauteng High Court in Pretoria has ruled that Absa Bank, which held the bond on the property, could not attach the house, despite Maré being R75 000 in arrears on her bond repayments.
Maré owed the bank more than R1million and was bonded to repay the bank an amount of R10 942 a month. When she fell into arrears, Absa instructed its attorneys to recover the amount from her.
Summons was said to have been served by the Sheriff’s office, but she never responded. The bank eventually turned to the court to obtain a default judgment against Maré and, as she did not come to court, the court granted the bank a default judgment.
The implication of this was that the property was sold on auction.
But Maré went to court to have the order rescinded due to irregularities. These included that the bank on its affidavit referred to her as a “he”, rather than “she”, and that it was said that she was resident in Pretoria, when she lived in Bela Bela.
But her main bone of contention was that she had no knowledge of the court proceedings as she never received the summons. Maré argued that the court order was thus granted erroneously.
Maré said the Sheriff could not have effected delivery of the summons as he claimed, as there was no gate to her premises. He further stated that he had “attached” a copy of it to the grass but it was not clear how this was accomplished.
Maré said the property was a smallholding and there is thus a lot of grass, she said.
Judge Elizabeth Kubushi said it was not in dispute that the summons was served at Maré's home. The only dispute was the manner in which it was served. She said the purpose for the Sheriff to serve a notice of summons was to notify the person on whom it is to be served of its contents.
The judge said by simply leaving the important documents at the house or on the lawn, without knowing whether the relevant person would see this, could not constitute proper notice. She cited relevant case law, where a notice was affixed to the door of the house.
But in this case the notice was left on the grass - in the open - without taking the necessary precautions that it would come to Maré's attention. This was not proper notice, the judge said.
The Sheriff maintained that he did at a stage call Maré to tell her about the summons, but the judge said this did not assist his case, as the rules required that the Sheriff ensure that the person on whom the summons was being served saw the documents.
“Mere knowledge that a process has been issued does not constitute service,” she said.
She added that the error existed at the time that another judge issued the default judgment and the effect was that the judgment was irregular.
Thus, she ruled, the entire process had to be reversed as the sale in execution was irregular and the new buyer was thus not the bona fide purchaser. The subsequent transfer of the home into the name of the new buyer also has to be reversed, and the transaction set aside. If the bank wants to repossess the property, it will have to start the process afresh.