Burrows and Another v Standard Bank of South Africa Limited and Another (18796/2015) [2019] ZAGPJHC 278 (13 August 2019)

Burrows and Another v Standard Bank of South Africa Limited and Another (18796/2015) [2019] ZAGPJHC 278 (13 August 2019)

The court held that an application for leave to appeal against the dismissal of a rescission application does not automatically invalidate the subsequent transfer of the property. The effect of the application for leave to appeal is to keep the rescission application pending, but it does not itself suspend the operation of the foreclosure order or the transfer. The transfer is rendered vulnerable to being set aside if a court finds it just and equitable to do so, but this requires a separate application and consideration of all relevant circumstances. Rule 49(11) is procedural and serves to preserve the status quo ante, but does not create a substantive right to suspend execution in...

Citation
[2019] ZAGPJHC 278
Parties
Plaintiff: Derek Lionel Burrows; Plaintiff: Margaret Charlote Burrows; Defendant: Standard Bank of South Africa Limited; Respondent: Hammond Pole Majola Incorporated
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 August 2019
Case Number
18796/2015
Procedural Posture
Civil Judgment / Separated Issues on Point of Law Under Uniform Rule 33(4)
Outcome
Application for leave to appeal does not automatically invalidate transfer; rescission application remains pending; transfer is susceptible to being set aside if just and equitable.
Judges
S Yacoob
Legal Topics
Rescission Application, Suspension of Execution, Transfer of Immovable Property, Leave to Appeal, Rule 49 11, Foreclosure
Civil Procedure Land and Property Rescission Application Suspension of Execution Transfer of Immovable Property Leave to Appeal Rule 49 11 Foreclosure

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Parties

Derek Lionel Burrows

Plaintiff

Margaret Charlote Burrows

Plaintiff

Standard Bank of South Africa Limited

Defendant

Hammond Pole Majola Incorporated

Respondent

Procedural Posture

Civil Judgment / Separated Issues on Point of Law Under Uniform Rule 33(4)

Legal Issues

  1. 1 Does an application for leave to appeal against an order dismissing a rescission application automatically invalidate the subsequent transfer of the immovable property?
  2. 2 What is the effect of a pending application for leave to appeal on the rescission application and the transfer of the property?

Ratio Decidendi

The court held that an application for leave to appeal against the dismissal of a rescission application does not automatically invalidate the subsequent transfer of the property. The effect of the application for leave to appeal is to keep the rescission application pending, but it does not itself suspend the operation of the foreclosure order or the transfer. The transfer is rendered vulnerable to being set aside if a court finds it just and equitable to do so, but this requires a separate application and consideration of all relevant circumstances. Rule 49(11) is procedural and serves to preserve the status quo ante, but does not create a substantive right to suspend execution in...

Court Disposition

Application for leave to appeal does not automatically invalidate transfer; rescission application remains pending; transfer is susceptible to being set aside if just and equitable.

Orders

  • The application for leave to appeal instituted by the plaintiffs does not automatically render the subsequent transfer of the property invalid.
  • The rescission application has not been finally determined and is therefore still pending.