Hancock and Another v Nedbank Limited and Others (905/2018) [2019] ZAFSHC 219 (14 November 2019)

Hancock and Another v Nedbank Limited and Others (905/2018) [2019] ZAFSHC 219 (14 November 2019)

The court found that the order of 20 September 2019 was made without proper application, notice, or consideration of all relevant facts, and did not constitute a valid direction under Rule 46A(9)(c) or (e). The subsequent higher offer of R 5.380 million, paid into trust, was a relevant factor that the court was entitled to consider under Rule 46A(9)(e). The interests of justice and common sense required that the property be sold to the highest offeror, not to the auction bidder whose bid was far below the reserve price. The counter-application to vary the order in favour of the auction bidder would impermissibly alter the substance of the original order and was dismissed. The original...

Citation
[2019] ZAFSHC 219
Parties
Applicant: D.C.G. Hancock; Applicant: T.E. Hancock; Respondent: Nedbank Limited; Respondent: Tradeshack 120 CC; Respondent: The Sheriff, Bethlehem; Respondent: The Registrar of Deeds
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
14 November 2019
Case Number
905/2018
Procedural Posture
Urgent Application / Application and Counter Application for Rescission and Variation of Court Order Following Sale in Execution Below Reserve Price.
Outcome
Main application succeeded; counter-application dismissed; property to be sold to highest offeror at R 5.380 million; previous order rescinded; no order as to costs.
Judges
P.J. Loubser
Legal Topics
Uniform Court Rules Rule 46a, Sale in Execution, Reserve Price, Rescission of Order, Variation of Order
Civil Procedure Land and Property Uniform Court Rules Rule 46a Sale in Execution Reserve Price Rescission of Order Variation of Order

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Parties

D.C.G. Hancock

Applicant

T.E. Hancock

Applicant

Nedbank Limited

Respondent

Tradeshack 120 CC

Respondent

The Sheriff, Bethlehem

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Application and Counter Application for Rescission and Variation of Court Order Following Sale in Execution Below Reserve Price.

Legal Issues

  1. 1 Whether the court order of 20 September 2019 constituted a direction permitting sale of the property below the reserve price.
  2. 2 Whether the order should be rescinded and set aside due to procedural irregularity and lack of clarity.
  3. 3 Whether the property should be sold to the highest post-auction offeror at R 5.380 million or to the auction bidder at R 2.2 million.

Ratio Decidendi

The court found that the order of 20 September 2019 was made without proper application, notice, or consideration of all relevant facts, and did not constitute a valid direction under Rule 46A(9)(c) or (e). The subsequent higher offer of R 5.380 million, paid into trust, was a relevant factor that the court was entitled to consider under Rule 46A(9)(e). The interests of justice and common sense required that the property be sold to the highest offeror, not to the auction bidder whose bid was far below the reserve price. The counter-application to vary the order in favour of the auction bidder would impermissibly alter the substance of the original order and was dismissed. The original...

Court Disposition

Main application succeeded; counter-application dismissed; property to be sold to highest offeror at R 5.380 million; previous order rescinded; no order as to costs.

Orders

  • The main application succeeds.
  • The court order dated 20 September 2019 is rescinded and set aside.