Maleka and Another v Nedbank Ltd and Others (23766/2008) [2013] ZAGPPHC 183 (3 July 2013)

Maleka and Another v Nedbank Ltd and Others (23766/2008) [2013] ZAGPPHC 183 (3 July 2013)

The court found that the sale in execution and subsequent transfer of the applicants' residential property were invalid because the warrant of execution was issued without the judicial oversight required by section 26 of the Constitution and the principles established in Jaftha v Schoeman. The court held that the applicants' right to adequate housing was infringed, as the court did not consider all relevant circumstances before issuing the writ, especially given the lapse of four years since the original order. The absence of judicial oversight rendered both the warrant and the sale in execution null and void. However, the court declined to order re-registration of the property in the...

Citation
[2013] ZAGPPHC 183
Parties
Applicant: Mashego Frederick Maleka; Applicant: Zanele Ellen Maleka; Respondent: Nedbank Limited; Respondent: The Sheriff - Pretoria North; Respondent: Mpho Maria Monageng; Respondent: Deeds Registry
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 July 2013
Case Number
23766/2008
Procedural Posture
Review Application / Opposed Application for Review and Setting Aside of Sale in Execution
Outcome
Application granted. The sale in execution and subsequent transfer are declared null and void. Costs awarded to the applicants.
Judges
Kubushi
Legal Topics
Judicial Oversight of Execution, Section 26 Right to Housing, Sale in Execution, Nullity of Transfer, Summary Judgment, Appropriate Relief
Civil Procedure Constitutional Law Land and Property Judicial Oversight of Execution Section 26 Right to Housing Sale in Execution Nullity of Transfer Summary Judgment +1 more

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Parties

Mashego Frederick Maleka

Applicant

Zanele Ellen Maleka

Applicant

Nedbank Limited

Respondent

The Sheriff - Pretoria North

Respondent

Mpho Maria Monageng

Respondent

Deeds Registry

Respondent

Procedural Posture

Review Application / Opposed Application for Review and Setting Aside of Sale in Execution

Legal Issues

  1. 1 Whether the sale in execution and subsequent transfer of the applicants' residential property was valid.
  2. 2 Whether the warrant of execution was issued with proper judicial oversight as required by section 26 of the Constitution.
  3. 3 Whether the applicants' right to adequate housing was infringed by the sale in execution.

Ratio Decidendi

The court found that the sale in execution and subsequent transfer of the applicants' residential property were invalid because the warrant of execution was issued without the judicial oversight required by section 26 of the Constitution and the principles established in Jaftha v Schoeman. The court held that the applicants' right to adequate housing was infringed, as the court did not consider all relevant circumstances before issuing the writ, especially given the lapse of four years since the original order. The absence of judicial oversight rendered both the warrant and the sale in execution null and void. However, the court declined to order re-registration of the property in the...

Court Disposition

Application granted. The sale in execution and subsequent transfer are declared null and void. Costs awarded to the applicants.

Orders

  • The sale in execution held on 23 February 2012 and the subsequent transfer of the property to the third respondent are declared null and void.
  • The first respondent is to pay the costs of this application, including the costs of the sale in execution.