Absa Bank Limited v Lekhethoa (33086/2019) [2023] ZAGPJHC 967 (28 August 2023)

Absa Bank Limited v Lekhethoa (33086/2019) [2023] ZAGPJHC 967 (28 August 2023)

The court held that authorising the sale of the property without a reserve price would risk it being sold for a disproportionately low amount, undermining the protective purpose of Rule 46A and section 26 of the Constitution. The court emphasised the need for judicial oversight and the consideration of all relevant facts, including the Sheriff's report and updated municipal charges. Given the absence of any bids at the previous auctions and the increase in outstanding rates and levies, the court found that a further reduction of the reserve price, rather than setting it to zero, was appropriate. Applying the Opperman formula, the court ordered a 30% reduction from the previous reserve...

Citation
[2023] ZAGPJHC 967
Parties
Applicant: Absa Bank Limited; Respondent: Lekhethoa Ntshadi Bridget
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 August 2023
Case Number
33086/2019
Procedural Posture
Civil Application / Application for Reconsideration of Reserve Price After Unsuccessful Sale in Execution
Outcome
Application to authorise sale without reserve price refused; reserve price reduced to R192,000.
Judges
Ford
Legal Topics
Sale in Execution, Reserve Price Reconsideration, Judicial Oversight, Rule 46a, Section 26 Constitution
Civil Procedure Land and Property Sale in Execution Reserve Price Reconsideration Judicial Oversight Rule 46a Section 26 Constitution

Case Brief

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Parties

Absa Bank Limited

Applicant

Lekhethoa Ntshadi Bridget

Respondent

Procedural Posture

Civil Application / Application for Reconsideration of Reserve Price After Unsuccessful Sale in Execution

Legal Issues

  1. 1 Whether the court should authorise the sale of the respondent's immovable property without a reserve price after two unsuccessful auctions.
  2. 2 What is the appropriate method for reconsidering and setting a new reserve price under Rule 46A(9)(c).
  3. 3 How to balance the interests of the judgment creditor and debtor in light of increasing municipal charges and the risk of properties being sold for pittance.

Ratio Decidendi

The court held that authorising the sale of the property without a reserve price would risk it being sold for a disproportionately low amount, undermining the protective purpose of Rule 46A and section 26 of the Constitution. The court emphasised the need for judicial oversight and the consideration of all relevant facts, including the Sheriff's report and updated municipal charges. Given the absence of any bids at the previous auctions and the increase in outstanding rates and levies, the court found that a further reduction of the reserve price, rather than setting it to zero, was appropriate. Applying the Opperman formula, the court ordered a 30% reduction from the previous reserve...

Court Disposition

Application to authorise sale without reserve price refused; reserve price reduced to R192,000.

Orders

  • The property described in the order is to be sold by the Sheriff on public auction at a reserve price of R192,000 in accordance with Rule 46 of the Uniform Rules of Court.
  • The applicant must advise the respondent in writing, by personal service, of the scheduled date and time of the sale in execution.