Business Partners Limited v Mahamba (4568/2016) [2019] ZAECGHC 17 (26 February 2019)

Business Partners Limited v Mahamba (4568/2016) [2019] ZAECGHC 17 (26 February 2019)

The court held that the sale of the respondent's property by private treaty was lawful and did not constitute unlawful self-help. The respondent had been served with summons seeking to declare the property executable, thereby affording her the opportunity to approach the court. Instead, she voluntarily entered into a settlement agreement and signed a power of attorney authorising the appellant to sell the property in the event of default. The relevant clauses in the agreement did not require the appellant to obtain a fresh court order before selling the property; rather, they provided the appellant with discretion to proceed either by legal action or by private sale. The parate executie...

Citation
[2019] ZAECGHC 17
Parties
Appellant: Business Partners Limited; Respondent: Thabiso Benedicta Mahamba
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
26 February 2019
Case Number
4568/2016
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal upheld; application dismissed with costs, including reserved costs.
Judges
S M Mbenenge, J M Roberson
Legal Topics
Parate Executie, Suretyship, Execution of Immovable Property, Self Help, Access to Court, Pacta Sunt Servanda
Civil Procedure Land and Property Commercial and Corporate Parate Executie Suretyship Execution of Immovable Property Self Help Access to Court +1 more

Case Brief

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Parties

Business Partners Limited

Appellant

Thabiso Benedicta Mahamba

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the sale of the respondent's property by private treaty constituted unlawful self-help.
  2. 2 Whether the appellant was required to obtain a fresh court order declaring the property executable before selling it.
  3. 3 Whether the respondent's voluntary agreement and power of attorney validly authorised the sale without further court process.

Ratio Decidendi

The court held that the sale of the respondent's property by private treaty was lawful and did not constitute unlawful self-help. The respondent had been served with summons seeking to declare the property executable, thereby affording her the opportunity to approach the court. Instead, she voluntarily entered into a settlement agreement and signed a power of attorney authorising the appellant to sell the property in the event of default. The relevant clauses in the agreement did not require the appellant to obtain a fresh court order before selling the property; rather, they provided the appellant with discretion to proceed either by legal action or by private sale. The parate executie...

Court Disposition

Appeal upheld; application dismissed with costs, including reserved costs.

Orders

  • The appeal succeeds, with costs.
  • The order of the court a quo is set aside and substituted with one dismissing the application with costs, including all reserved costs.