THE
HIGH COURT OF SWAZILAND
ZULEKA
MANSOOR
Applicant
And
FIRST
NATIONAL BANK OF SWAZILAND
Respondent
Civil
Case No. 1144/2001
Coram
S.B. MAPHALALA – J
For
the Applicant MR. P. R. DUNSEITH
For
the Respondent Advocate J.M. Van Der
Walt
(Instructed by Robinson Bertram)
JUDGMENT
(04/02/2004)
Before
court is an application for cancellation of a surety mortgage bond
and delivery of title deeds and costs.
The
Applicant seeks an order for the following prayers:
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"a)
That the Respondent shall forthwith take such steps as are necessary
to cancel Surety Mortgage Bond No. 136/1987 dated 23rd March 1987;
That
the Respondent shall immediately after the cancellation of the said
surety mortgage bond deliver Deed of Transfer No. 355/1971 dated
29th November 1971 to the Applicant's attorney,
Costs
Further
or alternative relief.
The
application is supported by the founding affidavit of the Applicant
himself. A number of pertinent annexures are filed thereto. These
being annexure "A" (Surety Mortgage Bond); annexure "B"
(Cession of Surety Mortgage Bond) annexures "C" and "D"
being copies of various cheques; and annexure "F" being a
letter from P.R. Dunseith dated 23rd June 2000 addressed to the
Applicant.
The
Respondent opposes the application and the affidavit of its Managing
Director Mr. Robert Alan Dawson is filed in opposition thereto.
Various annexures are filed viz annexure "SHI" (bank
statement of a company called A.K. Import & Export); annexure
"SH2" being a letter from Ntiwane, Mamba and Partners dated
the 22nd may 2001 addressed to the offices of Robinson Bertram;
annexure "SH3" a letter from Robinson Bertram to Ntiwane,
Mamba and Partners dated the 18th May 2001; annexure "SH4"
(letter from Robinson Bertram to Ntiwane, Mamba and Partners dated
20th June 2001); annexure "SH5" a letter from the Applicant
to the Respondent dated the 7th August 1996; annexure "SH6"
a letter dated the 1st November 1995 from the Respondent to the
Directors of A.K. Import & Export; annexure "SH7" a
letter from the Applicant to the Respondent dated the 13th September
1996 and a further letter from Applicant to Respondent dated the 26th
September 1996 marked "SH8".
The
substantial facts of this case are that a surety mortgage bond was
registered over the property of the Applicant being ERF No. 336,
Manzini Extension No. 2 District of Manzini, Swaziland in favour of
the Bank of Credit and Commerce International (Swaziland) Limited
(hereinafter called "BCCI") for an amount of E300, 000-00.
BCCI
changed its name to Meridian Recoveries (Pty) Limited.
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On
the 23rd February 1996, Meridian Recoveries (Pty) Limited ceded,
assigned and transferred all its right, title and interest in and to
the said bond to the Respondent for value received and without
recourse. As reflected in annexure "B" being the cession of
Surety Mortgage Bond.
The
applicant avers at paragraph 7 onwards that as required by law, the
conveyancer attending to the registration of the cession of the bond
certified that the amount remaining due in respect of the bond is
E32, 500-00. The said certificate is annexed marked "C".
Consequently the Applicant contends that she has duly paid to the
Respondent the full balance owing under the bond as certified by the
conveyancer. She has filled annexure "D" being copies of
paid cheques amounting to E32, 500-00.
On
23rd June 2000, her attorney wrote to the Respondent requesting
cancellation of the bond and that her title deeds be forwarded to his
office. However, the Respondent has failed and/or refused to cancel
the bond to date, and it has now become necessary for the Applicant
to approach the court for the necessary order compelling cancellation
of the bond and delivery of the title deeds.
The
defence put forth is that the Applicant has not liquidated the
principal debt to be entitled to the relief sought. The arguments
advanced in this regard is that the conveyancer's certificate cannot
be correct as to the amount E32, 500-00 because the bank statement
for the same month (February 1996) shows an outstanding balance of
E317, 063-01.
It
is contended that in this regard, the conveyancer by letter was
unable to explain whence he got the information, and concedes that he
may have made an error. Further in this regard the conveyancer made
no affidavit in support of the Applicant's version. As such, his
certificate all the more constitutes inadmissible hearsay evidence.
Furthermore, if only E32, 500-00 was outstanding, there would have
been no need for the Applicant to pay cheques totalling E32, 500-00.
The
legal arguments advanced by Mr. Dunseith for the Applicant are that
in terms of Section 15 of the Deeds Registry Act 37/1968, real rights
in land may be conveyed
4
from
one person to another only by means of a deed of cession registered
by the Registrar of Deeds.
In
terms of Regulation 26 of the Deeds Registry Regulation, 1973 "no
cession of the balance due under any bond shall be registered until
the amount paid in reduction thereof shall have been noted ..."
According
to the Applicant the Respondent's conveyancer certified, in
accordance with Regulation 26, that the amount remaining due in
respect of the bond is E32,500-00. The effect of the certificate in
terms of the law is that the Respondent took cession of a bond which
the balance due was E32, 500-00.
It
appears to me that Mr. Dunseith for the Applicant is correct in his
submission that in casu the Respondent is precluded from denying (as
it purports to do) that the balance certified by its own conveyancer
are due at the date of cession was E32, 500-00, because it would
effectively invalidate the registration of the cession of the bond.
Mr.
Dunseith is further correct that the Respondent has produced evidence
that the amount outstanding on the loan account was E310, 157-57, The
Respondent appears to overlook the fact that it is A.K. Import and
Export (Pty) Limited that is indebted to it on the loan account, not
the Applicant. The Applicant is only bound to the extent of the
amount of the bond ceded to the Respondent, namely E32, 500-00.
It
is common cause that the Applicant has paid an amount excess of the
sum of E32, 500-00.
In
the result, the Applicant is entitled to an order in terms of prayers
(a), (b) and (c) of the notice of application, and it is so ordered.
S.B.MAPHALALA
'JUDGE
Sneakers 