Mahori and Another v Firstrand Bank Ltd and Others (019229/22) [2023] ZAGPPHC 2029 (12 December 2023)

Mahori and Another v Firstrand Bank Ltd and Others (019229/22) [2023] ZAGPPHC 2029 (12 December 2023)

The Court found that section 3 of the National Credit Act sets out the Act's purpose and does not create offences; thus, the Bank's conduct did not constitute a contravention of section 3. Section 127 of the NCA was inapplicable as the Applicants did not surrender the property but it was sold in execution. The Court lacked jurisdiction to make criminal findings and referred such matters to the National Prosecuting Authority. On contempt, the property was ultimately re-registered in the Applicants' names and costs were awarded where appropriate. The claim of fraud was rejected, as the Bank's explanation of the settlement value was plausible and not shown to be intentionally false. The par...

Citation
[2023] ZAGPPHC 2029
Parties
Applicant: Mahori Gladwell Tsakane; Applicant: Mulea Constance Mashudu; Respondent: Firstrand Bank Ltd; Respondent: The Sheriff of the High Court, Tembisa; Respondent: Mokosinyane Alfred; Respondent: New Africa Gateway Church; Respondent: The Registrar of Deeds, Pretoria; Respondent: Mokosinyane Violet
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 December 2023
Case Number
019229/22
Procedural Posture
Review Application / Final Judgment After Hearing on Merits
Outcome
Application dismissed; no order as to costs.
Judges
E M Kubushi
Legal Topics
National Credit Act, Sale in Execution, Mortgage Bond Reinstatement, Contempt of Court, Fraud, Par Delictum Rule
Civil Procedure Banking and Finance National Credit Act Sale in Execution Mortgage Bond Reinstatement Contempt of Court Fraud Par Delictum Rule

Case Brief

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Parties

Mahori Gladwell Tsakane

Applicant

Mulea Constance Mashudu

Applicant

Firstrand Bank Ltd

Respondent

The Sheriff of the High Court, Tembisa

Respondent

Mokosinyane Alfred

Respondent

New Africa Gateway Church

Respondent

The Registrar of Deeds, Pretoria

Respondent

Mokosinyane Violet

Respondent

Procedural Posture

Review Application / Final Judgment After Hearing on Merits

Legal Issues

  1. 1 Whether the Bank contravened sections 3 and 127 of the National Credit Act.
  2. 2 Whether the Bank and its legal manager should be found in contempt of Judge Spilg's court order.
  3. 3 Whether the Bank and its legal manager committed fraud regarding the settlement value.

Ratio Decidendi

The Court found that section 3 of the National Credit Act sets out the Act's purpose and does not create offences; thus, the Bank's conduct did not constitute a contravention of section 3. Section 127 of the NCA was inapplicable as the Applicants did not surrender the property but it was sold in execution. The Court lacked jurisdiction to make criminal findings and referred such matters to the National Prosecuting Authority. On contempt, the property was ultimately re-registered in the Applicants' names and costs were awarded where appropriate. The claim of fraud was rejected, as the Bank's explanation of the settlement value was plausible and not shown to be intentionally false. The par...

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • No order as to costs is made.