De Bruyn and Another v ABSA Bank Limited and Others (9940/06) [2007] ZAWCHC 5 (1 February 2007)

De Bruyn and Another v ABSA Bank Limited and Others (9940/06) [2007] ZAWCHC 5 (1 February 2007)

The court found that the applicants had, by signing the power of attorney and related documents, validly waived their right of habitatio in favour of the first respondent. The evidence indicated that the applicants were aware of the nature and effect of the waiver, and their occupation of the property was always subject to the repayment of the mortgage bond. The applicants failed to establish a prima facie right to the relief sought, as their real right had been lawfully waived and they had no defence to the execution process. The alleged constitutional infringement was not substantiated in the founding affidavit. Accordingly, the application for an interdict and related relief was...

Citation
[2007] ZAWCHC 5
Parties
Applicant: Jonas Daniel Charles De Bruyn; Applicant: Margaret Maria De Bruyn; Respondent: ABSA Bank Limited; Respondent: Sheriff, Kuilsriver Magistrate Court; Respondent: Brian Leonard Davids; Respondent: Enver Jason Dillon De Bruyn; Respondent: Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 February 2007
Case Number
9940/06
Procedural Posture
Urgent Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
Ndita
Legal Topics
Right of Habitatio, Sale in Execution, Waiver of Real Rights, Joinder of Parties, Mortgage Bond Foreclosure
Land and Property Civil Procedure Right of Habitatio Sale in Execution Waiver of Real Rights Joinder of Parties Mortgage Bond Foreclosure

Case Brief

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Parties

Jonas Daniel Charles De Bruyn

Applicant

Margaret Maria De Bruyn

Applicant

ABSA Bank Limited

Respondent

Sheriff, Kuilsriver Magistrate Court

Respondent

Brian Leonard Davids

Respondent

Enver Jason Dillon De Bruyn

Respondent

Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Urgent Application / Final Judgment

Legal Issues

  1. 1 Whether the applicants validly waived their right of habitatio in favour of the first respondent.
  2. 2 Whether the applicants have established a clear right to an interdict restraining transfer of the property.
  3. 3 Whether the sale in execution and transfer of the property should be nullified due to alleged constitutional infringement.

Ratio Decidendi

The court found that the applicants had, by signing the power of attorney and related documents, validly waived their right of habitatio in favour of the first respondent. The evidence indicated that the applicants were aware of the nature and effect of the waiver, and their occupation of the property was always subject to the repayment of the mortgage bond. The applicants failed to establish a prima facie right to the relief sought, as their real right had been lawfully waived and they had no defence to the execution process. The alleged constitutional infringement was not substantiated in the founding affidavit. Accordingly, the application for an interdict and related relief was...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.