Cruz N.O and Others v Nedbank Limited and Others (62211/14) [2015] ZAGPPHC 913 (18 September 2015)

Cruz N.O and Others v Nedbank Limited and Others (62211/14) [2015] ZAGPPHC 913 (18 September 2015)

The court found that the fifth respondent was a bona fide purchaser and there was no evidence that he had knowledge of any arrangement between the applicants and Nedbank. The sale in execution was the result of a valid default judgment, and the applicants did not fulfil the arrangement with Nedbank by the agreed time. The relief sought to reinstate the mortgage bond and declare the sale in execution null and void would prejudice the rights of the bona fide purchaser and complicate matters. The application was therefore dismissed.

Citation
[2015] ZAGPPHC 913
Parties
Applicant: Alerandra Carlos Monteito Cruz N.O; Applicant: Tamlyn Laura Scully N.O; Applicant: Rosanne Scully N.O; Respondent: Nedbank Limited; Respondent: Hack Stupel & Ross Attorneys; Respondent: Registrar of Deeds, Pretoria; Respondent: Registrar of Deeds, Mbombela; Respondent: Jansen Roelof Johannes; Respondent: Sheriff Mbombela
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 September 2015
Case Number
62211/14
Procedural Posture
Urgent Application / Judgment
Outcome
Application dismissed with costs.
Judges
M F Legodi
Legal Topics
Sale in Execution, Bona Fide Purchaser, Mortgage Bond Reinstatement, Default Judgment, Transfer of Property
Land and Property Civil Procedure Sale in Execution Bona Fide Purchaser Mortgage Bond Reinstatement Default Judgment Transfer of Property

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Parties

Alerandra Carlos Monteito Cruz N.O

Applicant

Tamlyn Laura Scully N.O

Applicant

Rosanne Scully N.O

Applicant

Nedbank Limited

Respondent

Hack Stupel & Ross Attorneys

Respondent

Registrar of Deeds, Pretoria

Respondent

Registrar of Deeds, Mbombela

Respondent

Jansen Roelof Johannes

Respondent

Sheriff Mbombela

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the sale in execution and subsequent transfer of the property to the fifth respondent should be declared null and void.
  2. 2 Whether the agreement between the applicants and Nedbank was reinstated by payment made on 29 January 2014.
  3. 3 Whether Nedbank should be ordered to reinstate and re-register the mortgage bond in favour of the Perfect View Trust.

Ratio Decidendi

The court found that the fifth respondent was a bona fide purchaser and there was no evidence that he had knowledge of any arrangement between the applicants and Nedbank. The sale in execution was the result of a valid default judgment, and the applicants did not fulfil the arrangement with Nedbank by the agreed time. The relief sought to reinstate the mortgage bond and declare the sale in execution null and void would prejudice the rights of the bona fide purchaser and complicate matters. The application was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.