De Wet and Another v Sheriff, High Court, Cullinan and Others (29378/14) [2014] ZAGPPHC 817 (13 October 2014)

De Wet and Another v Sheriff, High Court, Cullinan and Others (29378/14) [2014] ZAGPPHC 817 (13 October 2014)

The court held that the sheriff was wrong in refusing to stop the sale when instructed to do so by the execution creditor before bidding commenced. The instruction to cancel the sale was given during the reading of the conditions of sale and prior to any bids being made. There is no legal authority requiring that the instruction to cancel must be in writing, nor is there any provision preventing the sheriff from cancelling the sale before bidding starts. The sheriff's refusal to act on the instruction resulted in the applicants suffering a significant financial loss. The sale was therefore set aside and costs awarded against the third respondent.

Citation
[2014] ZAGPPHC 817
Parties
Applicant: Lukas Marthinus De Wet; Applicant: Alta De Wet; Respondent: The Sheriff, High Court, Cullinan; Respondent: Standard Bank of SA Limited; Respondent: Booysen Oosthuizen
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 October 2014
Case Number
29378/14
Procedural Posture
Review Application / First Instance Judgment
Outcome
Application granted; sale in execution set aside; costs awarded against third respondent.
Judges
F G Preller
Legal Topics
Sale in Execution, Auction Law, Consumer Protection Act, Uniform Rules of Court, Sheriffs Act
Civil Procedure Land and Property Sale in Execution Auction Law Consumer Protection Act Uniform Rules of Court Sheriffs Act

Case Brief

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Parties

Lukas Marthinus De Wet

Applicant

Alta De Wet

Applicant

The Sheriff, High Court, Cullinan

Respondent

Standard Bank of SA Limited

Respondent

Booysen Oosthuizen

Respondent

Procedural Posture

Review Application / First Instance Judgment

Legal Issues

  1. 1 Whether the sheriff was legally entitled to proceed with the sale in execution after receiving an instruction from the execution creditor to cancel the sale before bidding commenced.
  2. 2 Whether an oral instruction to cancel the sale is sufficient or if written instruction is required under Rule 46(4)(b).
  3. 3 Whether the sale in execution can be set aside under the applicable rules and statutes.

Ratio Decidendi

The court held that the sheriff was wrong in refusing to stop the sale when instructed to do so by the execution creditor before bidding commenced. The instruction to cancel the sale was given during the reading of the conditions of sale and prior to any bids being made. There is no legal authority requiring that the instruction to cancel must be in writing, nor is there any provision preventing the sheriff from cancelling the sale before bidding starts. The sheriff's refusal to act on the instruction resulted in the applicants suffering a significant financial loss. The sale was therefore set aside and costs awarded against the third respondent.

Court Disposition

Application granted; sale in execution set aside; costs awarded against third respondent.

Orders

  • The sale on 30 January 2014 by the first respondent of the applicants’ property, portion 76 of the farm Kaalfontein 513 Registration Division JR, is set aside.
  • The third respondent is ordered to pay the costs of the application, including the wasted costs on the scale as between attorney and client of the previous postponement of the application.