Anderson v Komphela and Others (1014/2016) [2017] ZAFSHC 14 (19 January 2017)

Anderson v Komphela and Others (1014/2016) [2017] ZAFSHC 14 (19 January 2017)

The court found that the applicant had willingly consented, in a deed of settlement made an order of court, to her property being sold in execution in the event of default. The magistrate had granted the order authorizing execution, and there was no requirement for a further similar order. The judicial oversight required by Jaftha v Schoeman was satisfied, as the sale was ordered by the magistrate and not merely by the clerk of the court. The application for a declaratory order was therefore dismissed.

Citation
[2017] ZAFSHC 14
Parties
Applicant: Susara Susanna Anderson; Respondent: Butana Moses Komphela; Respondent: Cecilia Eileen Nombuiselo Komphela; Respondent: The Body Corporate of Pinewood; Respondent: The Sheriff for the District Bloemfontein East; Respondent: The Registrar of Deeds
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 January 2017
Case Number
1014/2016
Procedural Posture
Declaratory Application / Judgment
Outcome
Application dismissed with costs.
Judges
C. Reinders
Legal Topics
Sale in Execution, Judicial Oversight, Consent Orders, Declaratory Relief
Civil Procedure Land and Property Sale in Execution Judicial Oversight Consent Orders Declaratory Relief

Case Brief

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Parties

Susara Susanna Anderson

Applicant

Butana Moses Komphela

Respondent

Cecilia Eileen Nombuiselo Komphela

Respondent

The Body Corporate of Pinewood

Respondent

The Sheriff for the District Bloemfontein East

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Declaratory Application / Judgment

Legal Issues

  1. 1 Whether the sale in execution and subsequent transfer of the property to the first and second respondents was valid.
  2. 2 Whether the applicant's consent in the deed of settlement constituted sufficient judicial oversight for the sale in execution.
  3. 3 Whether a further court order was required before the property could be sold in execution.

Ratio Decidendi

The court found that the applicant had willingly consented, in a deed of settlement made an order of court, to her property being sold in execution in the event of default. The magistrate had granted the order authorizing execution, and there was no requirement for a further similar order. The judicial oversight required by Jaftha v Schoeman was satisfied, as the sale was ordered by the magistrate and not merely by the clerk of the court. The application for a declaratory order was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.