Kgole and Another v FirstRand Bank Limited and Others (2012/28961) [2021] ZAGPJHC 656 (9 November 2021)

Kgole and Another v FirstRand Bank Limited and Others (2012/28961) [2021] ZAGPJHC 656 (9 November 2021)

The court found that the order cancelling the sale in execution was erroneously granted, as the guarantee required for the sale was provided before the order was made and all conditions for transfer had been met. The respondents were not present when the order was granted, and had they been, the court would not have issued the order. The subsequent transfer to the third respondent was lawful, as the sale in execution was perfected and the third respondent was a bona fide purchaser. The applicants failed to seek rescission of the original execution order and writ, rendering their application ineffective. The abstract theory of transfer and established case law preclude the recovery of...

Citation
[2021] ZAGPJHC 656
Parties
Applicant: Kgole, Matlou George; Applicant: Kgole, Mapaseka Lucy; Respondent: FirstRand Bank Limited; Respondent: U 4 Me Estates; Respondent: Shaw Kevin Thulani; Respondent: The Sheriff of the High Court, Boksburg; Respondent: The Registrar of Deeds, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
9 November 2021
Case Number
2012/28961
Procedural Posture
Civil Application / Judgment on Main Application and Counter Application for Rescission
Outcome
The order cancelling the sale in execution is rescinded. The application to set aside the registration of transfer is dismissed. Each party shall bear its own costs.
Judges
MJ Engelbrecht
Legal Topics
Rescission of Judgment, Sale in Execution, Transfer of Immovable Property, Rule 42, Abstract Theory of Transfer
Civil Procedure Land and Property Rescission of Judgment Sale in Execution Transfer of Immovable Property Rule 42 Abstract Theory of Transfer

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 20 Party arguments 2
Sign in to unlock

Parties

Kgole, Matlou George

Applicant

Kgole, Mapaseka Lucy

Applicant

FirstRand Bank Limited

Respondent

U 4 Me Estates

Respondent

Shaw Kevin Thulani

Respondent

The Sheriff of the High Court, Boksburg

Respondent

The Registrar of Deeds, Johannesburg

Respondent

Procedural Posture

Civil Application / Judgment on Main Application and Counter Application for Rescission

Legal Issues

  1. 1 Whether the order cancelling the sale in execution was erroneously sought and granted and should be rescinded.
  2. 2 Whether the subsequent registration of transfer to a third party was unlawful and should be set aside.
  3. 3 Whether the applicants are entitled to recover possession of the property after transfer to a bona fide purchaser.

Ratio Decidendi

The court found that the order cancelling the sale in execution was erroneously granted, as the guarantee required for the sale was provided before the order was made and all conditions for transfer had been met. The respondents were not present when the order was granted, and had they been, the court would not have issued the order. The subsequent transfer to the third respondent was lawful, as the sale in execution was perfected and the third respondent was a bona fide purchaser. The applicants failed to seek rescission of the original execution order and writ, rendering their application ineffective. The abstract theory of transfer and established case law preclude the recovery of...

Court Disposition

The order cancelling the sale in execution is rescinded. The application to set aside the registration of transfer is dismissed. Each party shall bear its own costs.

Orders

  • The order of Coppin J of 27 October 2014 under case number 2012/28961 is rescinded.
  • The application to set aside the registration of the transfer of the property under case number 28961/2012 is dismissed.