In re: Sheriff of the High Court Halfway House v Hope, Nedbank Limited v Trustees for the time being of Triple 7 Trading (23845/2007) [2011] ZAGPPHC 9 (26 January 2011)
The court found that the initial refusal to grant the order was due to the absence of proof of service on the purchaser. Upon review of the new bundle of documents, which included a valid return of service dated 19 August 2010, the court was satisfied that proper service had been effected. The applicant had thus...
Source-derived case information.
- Citation
- [2011] ZAGPPHC 9
- Parties
- Applicant: Sheriff of the High Court Halfway House; Respondent: Sarah Hope in her capacity as Executrix for the Estate of Justin Hope; Plaintiff: Nedbank Limited; Defendant: Trustees for the time being of Triple 7 Trading
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 23845/2007
- Procedural Posture
- Urgent Application / Application for Cancellation of Sale in Execution
- Outcome
- Application granted; sale in execution cancelled; costs awarded against respondent.
- Judges
- G Webster
- Legal Topics
- Sale in Execution, Service of Process, Cancellation of Sale
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheriff of the High Court Halfway House
Applicant
Sarah Hope in her capacity as Executrix for the Estate of Justin Hope
Respondent
Nedbank Limited
Plaintiff
Trustees for the time being of Triple 7 Trading
Defendant
Procedural Posture
Urgent Application / Application for Cancellation of Sale in Execution
Legal Issues
- 1 Whether the sale in execution held on 9 February 2010 should be declared invalid and cancelled.
- 2 Whether proper service of the application was effected on the purchaser in accordance with the conditions of sale.
- 3 Whether the applicant is entitled to the relief sought based on the evidence presented.
Ratio Decidendi
The court found that the initial refusal to grant the order was due to the absence of proof of service on the purchaser. Upon review of the new bundle of documents, which included a valid return of service dated 19 August 2010, the court was satisfied that proper service had been effected. The applicant had thus established a proper case for the relief sought. The sale in execution was declared invalid and cancelled, and the respondent was ordered to pay the costs of the application.
Court Disposition
Application granted; sale in execution cancelled; costs awarded against respondent.
Orders
- The sale in execution held on 9 February 2010 in respect of Section 52, Carlswald View, Noordwyk Extension 65 Township is cancelled.
- The respondent is ordered to pay the costs of the application.
Full Case Text
Judgment text and source record
29 paragraphs
NOT REPORTABLE
IN THE NORTH GAUTENG HIGH COURT
(REPUBLIC OF SOUTH AFRICA)
CASE NO.: 23845/2007
DATE: 26/01/2011
In the matter between:
RE:
SHERIFF OF THE HIGH COURT
HALFWAY HOUSE.......................................................................................APPLICANT
And
SARAH HOPE IN HER CAPACITY AS EXECUTRIX
FOR THE ESTATE OF JUSTIN HOPE...................................................RESPONDENT
In the matter between
NEDBANK LIMITED...................................................................................PLAINTIFF
TRUSTEES FOR THE TIME BEING OF TRIPLE 7 TRADING …......DEFENDANT
JUDGMENT
WEBSTER J
1. This is an application brought in chambers for an order declaring a sale in execution concluded on 9 February, 2010 in terms of which the applicant sold immovable property known as Section 52, Carlswald View, Noordwyk Extension 65 Township to the respondent to be invalid and to be cancelled and set aside.
2. From an affidavit by a candidate Attorney, Salome Jansen van Vuuren, in the plaintiff's Attorneys' employ the application was lodged with the Registrar on 29 October, 2010. On 22 November, 2010, she discovered upon examining the court file that "...the court file seem to have been misplaced../'. Despite a diligent search the "...court file could not be found". She then annexed "...copies of all the pleadings in this matter" declaring that they were true copies of the original documents.
3. The application served before my Brother Msimeki J on 25 November, 2010. He declined to grant the order of cancellation as "...there is no proof of service of the application on the purchaser in terms of the conditions of sale". This is clearly so from the documents annexed to the affidavit of Salome Jansen van Vuuren referred to above.
4. There is currently another bundle similar to that referred to above. It is, to all intents and purposes, the original set of the papers. The only difference is the date stamps appearing on the first page of each bundle. Annexed to the "new bundle" is a return of service dated 19 August, 2010. It appears to be the original return of service and bears a signature of the Deputy Sheriff.
5. According to the return of service referred to in the preceding paragraph the "Notice of Motion, Applicant's report in terms of Rule 46(11) of the High Court rules and annexure thereto was (sic) served upon MR N MOGENTALE during the respondent's temporary absence on 19 August, 2010 at 07h25 at 52, 13th Street, Orange Grove". The return of service appears to be valid.
6. It is clear that the order by my Brother Msimeki J was based on the bundle that did not have the return of service. That is no longer the position. In my view the applicant has made out a proper case and is entitled to the relief he seeks.
7. The following order is accordingly granted:
IT IS ORDERED:
1. THAT the sale in execution which was held on the 9th of February 2010 in respect of the immovable property known as SECTION 52, CARLSWALD VIEW, NOORDWYK EXTENTION 65 TOWNSHIP, be and is hereby cancelled.
2. THAT the Respondent pays the costs of this application.
G WEBSTER
JUDGE IN THE HIGH COURT