Absa Bank Limited v Mare and Others (A56/2019) [2020] ZAGPPHC 372; 2021 (2) SA 151 (GP) (20 August 2020)

Absa Bank Limited v Mare and Others (A56/2019) [2020] ZAGPPHC 372; 2021 (2) SA 151 (GP) (20 August 2020)

The court found that service of the summons by affixing it 'on the grass' at Ms Mare's chosen domicilium citandi did not constitute proper service under Rule 4(1)(a)(iv), as it did not ensure the process would come to her attention. Ms Mare was present at the property and did not receive the documents, and the sheriff's returns were not supported by credible evidence. As a result, the default judgment was void ab initio, rendering the sale in execution and subsequent transfer of ownership to the bona fide purchaser invalid. The sheriff lacked authority to conduct the sale and transfer the property. The court held that Ms Mare was entitled to have her registered ownership reinstated, and...

Citation
[2020] ZAGPPHC 372
Parties
Appellant: Absa Bank Limited; Respondent: Anet Mare; Respondent: Mpitso Benjamin Mxakwe; Respondent: Sheriff of the High Court, Bela-Bela, Limpopo; Respondent: Registrar of Deeds, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 August 2020
Case Number
A56/2019
Procedural Posture
Civil Appeal / Appeal Against Order Rescinding Default Judgment and Reinstating Property Ownership
Outcome
Appeal dismissed with costs, including those of the application for leave to appeal.
Judges
P.A. Meyer, MIA, Moosa
Legal Topics
Service of Process, Rescission of Judgment, Sale in Execution, Transfer of Ownership, Abstract Theory of Ownership
Civil Procedure Land and Property Service of Process Rescission of Judgment Sale in Execution Transfer of Ownership Abstract Theory of Ownership

Case Brief

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Parties

Absa Bank Limited

Appellant

Anet Mare

Respondent

Mpitso Benjamin Mxakwe

Respondent

Sheriff of the High Court, Bela-Bela, Limpopo

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Civil Appeal / Appeal Against Order Rescinding Default Judgment and Reinstating Property Ownership

Legal Issues

  1. 1 Whether service of summons by affixing it 'on the grass' at the chosen domicilium citandi constitutes proper service under Rule 4(1)(a)(iv).
  2. 2 Whether the default judgment was void ab initio due to improper service.
  3. 3 Whether the sale in execution and subsequent transfer of property to a bona fide purchaser should be set aside and ownership reinstated to the original owner.

Ratio Decidendi

The court found that service of the summons by affixing it 'on the grass' at Ms Mare's chosen domicilium citandi did not constitute proper service under Rule 4(1)(a)(iv), as it did not ensure the process would come to her attention. Ms Mare was present at the property and did not receive the documents, and the sheriff's returns were not supported by credible evidence. As a result, the default judgment was void ab initio, rendering the sale in execution and subsequent transfer of ownership to the bona fide purchaser invalid. The sheriff lacked authority to conduct the sale and transfer the property. The court held that Ms Mare was entitled to have her registered ownership reinstated, and...

Court Disposition

Appeal dismissed with costs, including those of the application for leave to appeal.

Orders

  • The appeal is dismissed with costs, including those of the application for leave to appeal.