Fourie and Another v Absa Trust Ltd and Others (66864/2014) [2015] ZAGPPHC 10 (23 January 2015)

Fourie and Another v Absa Trust Ltd and Others (66864/2014) [2015] ZAGPPHC 10 (23 January 2015)

The court found that the auctioneer proceeded with the auction despite being aware of the urgent application and the existence of an interdict. This conduct was opportunistic and mala fide. The auction was objectively null and void, and the subsequent rescission of the interdict was immaterial to the lawfulness of the auction. The applicants demonstrated urgency due to the imminent transfer and lack of agreement. The only remedy was to grant an interim interdict prohibiting transfer pending final determination. The fourth respondent's objections regarding urgency and Practice Rules were dismissed as unfounded. Costs were reserved between the main parties, and the fourth respondent was...

Citation
[2015] ZAGPPHC 10
Parties
Applicant: Doné Fourie; Applicant: Vané Fourie; Respondent: Absa Trust Ltd; Respondent: Marthinus Christoffel Barnard N.O.; Respondent: Phil Minnaar Auctioneers Gauteng CC; Respondent: Aarco Joint Civils; Respondent: Tim du Toit & Kie; Respondent: Master of the Supreme Court, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 January 2015
Case Number
66864/2014
Procedural Posture
Urgent Application / Interim Interdict Pending Final Application
Outcome
Interim interdict granted prohibiting transfer of the property pending final application; applicants to institute proceedings within 14 days; costs reserved between applicants and first and second respondents; fourth respondent to pay own costs.
Judges
BAM
Legal Topics
Interim Interdict, Auction Sale Challenge, Estate Transfer, Urgency, Nullity of Auction
Civil Procedure Land and Property Interim Interdict Auction Sale Challenge Estate Transfer Urgency Nullity of Auction

Case Brief

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Parties

Doné Fourie

Applicant

Vané Fourie

Applicant

Absa Trust Ltd

Respondent

Marthinus Christoffel Barnard N.O.

Respondent

Phil Minnaar Auctioneers Gauteng CC

Respondent

Aarco Joint Civils

Respondent

Tim du Toit & Kie

Respondent

Master of the Supreme Court, Pretoria

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Final Application

Legal Issues

  1. 1 Whether the auction of the property was null and void due to the existence of an interdict prohibiting the sale.
  2. 2 Whether the applicants are entitled to an urgent interdict preventing transfer pending final determination.
  3. 3 Whether the conduct of the auctioneer and respondents rendered the sale unlawful.

Ratio Decidendi

The court found that the auctioneer proceeded with the auction despite being aware of the urgent application and the existence of an interdict. This conduct was opportunistic and mala fide. The auction was objectively null and void, and the subsequent rescission of the interdict was immaterial to the lawfulness of the auction. The applicants demonstrated urgency due to the imminent transfer and lack of agreement. The only remedy was to grant an interim interdict prohibiting transfer pending final determination. The fourth respondent's objections regarding urgency and Practice Rules were dismissed as unfounded. Costs were reserved between the main parties, and the fourth respondent was...

Court Disposition

Interim interdict granted prohibiting transfer of the property pending final application; applicants to institute proceedings within 14 days; costs reserved between applicants and first and second respondents; fourth respondent to pay own costs.

Orders

  • The first and second respondents are prohibited from effecting transfer of Plot 103, Berg Avenue, Hartbeeshoek, Amandasig, Akasia Pretoria North, Gauteng from the Estate of the Late Estelle Veronica Chamberlain to ARCO Joint Civils and/or any person or entity pending finalisation of an application to declare the...
  • The applicants are ordered to institute the proceedings referred to above within 14 days of the date of this order.