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Tuesday Jan 21, 2014

Summons 'served' at vacant premises

A Centurion couple who only became aware of two court orders against them by a bank more than a year after they were issued, failed to succeed in overturning an order that their property be sold on execution.

Summons was first served on vacant land registered in their name and later at an incorrect street address in Dorandia, north of Pretoria.

In January 2011, First Rand Bank obtained judgment against Neal and Sonja Dickinson for R831 000 owed on a mortgage bond. As the couple didn't receive the summons, they did not oppose it and judgment was delivered against them.

A few months later, the court granted an order in favour of the bank to sell their property in a sale of execution. The couple did not defend this either. The Dickinsons said in papers before the court that they also did not receive summons and weren't aware of the proceedings against them.

The couple said they only got wind of the orders against them when they happened to go to their bank a year later and an official informed them about it.

The Dickinsons' troubles started when they bought vacant land in Capital Park in 2006 and asked a developer to build a house on the property. They borrowed R743 643 from the bank, mortgaging the property as security for the debt.

Two and a half years later the bank issued summons for more than R831 000 - the debt plus interest.

The bank called on the sheriff to serve the summons on the couple, as per the address of the land which they earlier purchased. The sheriff remarked on his return that the premises was vacant.

Regardless of this, the bank proceeded to obtain a court order two weeks later.

The court then declared that the property should be sold in execution and ordered the writ of execution had to be served on the couple.

The sheriff once again set off to serve the document on the couple - this time at the address which he thought they were now living at - Cora Avenue in Dorandia (while they in fact lived in Con Amore complex in Highveld). The stunned occupier of the Dorandia house said he had been living there for 26 years and he did not know the Dickinsons.

On his return, the sheriff remarked that the couple were unknown at this address. Judgment was nevertheless granted by the court.

The couple said they did not intentionally ignore the orders and genuinely didn't know about the legal proceedings against them. They said the bank knew where they lived, as it was stated on the mortgage documents.

The bank, on the other hand, denied that summons hadn't properly been served the first time, as it was not uncommon for its clients to apply for a building loan with the intention to move in once the building was complete.

Judge NV Khumalo said where it is obvious that a person couldn't be notified of legal proceedings by the sheriff because the address was a vacant site or incorrect, the court should order other steps be taken to inform the party of a pending procedure.

Judge Khumalo said the granting of default judgment where it was obvious that the summons wouldn't have come to the attention of the defendant, made a mockery of the proceedings. Although the bank agreed that the couple didn't receive the notifications, the court nevertheless turned down their application to have the order overturned. The judge found the Dickinsons had a binding contract with the bank which they had to honour.

Pretoria News


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