Makubalo and Another v Nedcor Bank Ltd and Others (M153/2016) [2017] ZANWHC 45 (29 June 2017)

Makubalo and Another v Nedcor Bank Ltd and Others (M153/2016) [2017] ZANWHC 45 (29 June 2017)

The court found that the credit agreement between the first applicant and the first respondent was never cancelled and was lawfully reinstated on 5 December 2014 when the applicants paid all overdue amounts, including default charges and reasonable enforcement costs, in excess of the outstanding balance. The sale in execution was not finalised at the time of payment, as the proceeds had not yet been realised or paid to the judgment creditor. The subsequent transfers and registrations of the property were invalid, as the third respondent was not the registered owner at the time of purported sale to the fifth respondent, and statutory requirements for transfer were not met. The applicants...

Citation
[2017] ZANWHC 45
Parties
Applicant: Joel Mosenye Makubalo; Applicant: Dikeledi Adolphina Makubalo; Respondent: Nedcor Bank Ltd; Respondent: Sheriff – Rustenburg; Respondent: Pieter Hoffman Eiendoms Beleggings (Pty) Ltd; Respondent: Registrar of Deeds; Respondent: Solly Phasha; Respondent: ABSA Bank Limited
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
29 June 2017
Case Number
M153/2016
Procedural Posture
Review Application / Judgment After Opposed Application
Outcome
Application granted. Sale in execution and subsequent transfers set aside. Ownership restored to applicants. Repayment of purchase prices ordered. Costs awarded against first respondent on attorney and client scale.
Judges
R D Hendricks
Legal Topics
Sale in Execution, Credit Agreement Reinstatement, National Credit Act, Alienation of Land Act, Magistrates Court Procedure, Specific Performance
Land and Property Banking and Finance Civil Procedure Sale in Execution Credit Agreement Reinstatement National Credit Act Alienation of Land Act Magistrates Court Procedure +1 more

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 11 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Joel Mosenye Makubalo

Applicant

Dikeledi Adolphina Makubalo

Applicant

Nedcor Bank Ltd

Respondent

Sheriff – Rustenburg

Respondent

Pieter Hoffman Eiendoms Beleggings (Pty) Ltd

Respondent

Registrar of Deeds

Respondent

Solly Phasha

Respondent

ABSA Bank Limited

Respondent

Procedural Posture

Review Application / Judgment After Opposed Application

Legal Issues

  1. 1 Whether the sale in execution of the applicants' immovable property was lawful and valid.
  2. 2 Whether the credit agreement between the first applicant and first respondent was reinstated in terms of section 129(3) of the National Credit Act.
  3. 3 Whether subsequent transfers and registrations of the property were valid.

Ratio Decidendi

The court found that the credit agreement between the first applicant and the first respondent was never cancelled and was lawfully reinstated on 5 December 2014 when the applicants paid all overdue amounts, including default charges and reasonable enforcement costs, in excess of the outstanding balance. The sale in execution was not finalised at the time of payment, as the proceeds had not yet been realised or paid to the judgment creditor. The subsequent transfers and registrations of the property were invalid, as the third respondent was not the registered owner at the time of purported sale to the fifth respondent, and statutory requirements for transfer were not met. The applicants...

Court Disposition

Application granted. Sale in execution and subsequent transfers set aside. Ownership restored to applicants. Repayment of purchase prices ordered. Costs awarded against first respondent on attorney and client scale.

Orders

  • It is declared that the credit agreement between Nedbank Ltd and Joel Mosenye Makubalo was lawfully reinstated on 5 December 2014.
  • The sale in execution and registration of the property in the name of the third respondent is set aside.