Changing Tides 17 (Pty) Ltd v Schuurman and Others (34524/2016) [2022] ZAGPPHC 140 (16 March 2022)

Changing Tides 17 (Pty) Ltd v Schuurman and Others (34524/2016) [2022] ZAGPPHC 140 (16 March 2022)

The court found that the procedural requirements for attachment and service of sale conditions prior to the sale in execution were not adequately proven by the applicant. Although the respondents raised this issue late and did not seek a declaration of invalidity, the court considered the risk to the innocent bidder and the lack of clarity regarding the bidder's continued interest. The property was no longer the respondents' primary residence, as evidenced by service on a tenant and the respondents' failure to provide current addresses. Therefore, the protection of primary residences under Rule 46A was not applicable. The court exercised its discretion to order a fresh sale in execution...

Citation
[2022] ZAGPPHC 140
Parties
Applicant: Changing Tides 17 (Pty) Ltd; Respondent: Adrianus Wilhelmus Cornelis Schuurman; Respondent: Maryka Schuurman; Respondent: Govan Mbeki Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 March 2022
Case Number
34524/2016
Procedural Posture
Urgent Application / Application for Ratification of Sale in Execution Following Failure to Reach Reserve Price
Outcome
Application for ratification of sale in execution refused; fresh sale in execution ordered without reserve price; each party to pay its own costs.
Judges
N Davis
Legal Topics
Sale in Execution, Reserve Price, Rule 46a, Primary Residence Protection
Civil Procedure Land and Property Sale in Execution Reserve Price Rule 46a Primary Residence Protection

Case Brief

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Parties

Changing Tides 17 (Pty) Ltd

Applicant

Adrianus Wilhelmus Cornelis Schuurman

Respondent

Maryka Schuurman

Respondent

Govan Mbeki Municipality

Respondent

Procedural Posture

Urgent Application / Application for Ratification of Sale in Execution Following Failure to Reach Reserve Price

Legal Issues

  1. 1 Whether the sale in execution of the property should be ratified despite the reserve price not being met.
  2. 2 Whether procedural requirements under Rule 46 and Rule 46A were complied with prior to the sale.
  3. 3 Whether a new sale in execution should be ordered without a reserve price given the property is no longer a primary residence.

Ratio Decidendi

The court found that the procedural requirements for attachment and service of sale conditions prior to the sale in execution were not adequately proven by the applicant. Although the respondents raised this issue late and did not seek a declaration of invalidity, the court considered the risk to the innocent bidder and the lack of clarity regarding the bidder's continued interest. The property was no longer the respondents' primary residence, as evidenced by service on a tenant and the respondents' failure to provide current addresses. Therefore, the protection of primary residences under Rule 46A was not applicable. The court exercised its discretion to order a fresh sale in execution...

Court Disposition

Application for ratification of sale in execution refused; fresh sale in execution ordered without reserve price; each party to pay its own costs.

Orders

  • The immovable property declared executable by the order dated 11 October 2018 is to be sold by the sheriff at a new sale in execution, without any reserve price.
  • Each party shall pay its own costs of this application.