McCreath v Wolmarans NO and Others (1845/08) [2009] ZAECGHC 12; 2009 (5) SA 451 (ECG) (25 March 2009)

McCreath v Wolmarans NO and Others (1845/08) [2009] ZAECGHC 12; 2009 (5) SA 451 (ECG) (25 March 2009)

The court found that the error made by the Bank's attorney was due to his ignorance of Rule 46(12) and the conditions of sale, not an error in the execution of the Court Rules as contemplated by clause 3.2. The conditions of sale, drafted by the Bank's own attorneys, clearly required the property to be sold to the highest bidder without reserve, in line with Rule 46(12). The applicant and first respondent had no duty to inform the Bank's attorney of his error, and the circumstances did not warrant the application of the SONAP principle regarding consensus. The sale was lawfully concluded at the fall of the hammer, and the Bank is bound by the signed conditions of sale. The purported...

Citation
[2009] ZAECGHC 12
Parties
Applicant: Glenn Leaver McCreath; Respondent: Marthinus Johannes Wolmarans N.O.; Respondent: Nedbank Limited; Respondent: Newton Glenn Bower; Respondent: Denise Bower
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
25 March 2009
Case Number
1845/08
Procedural Posture
Civil Application / Judgment
Outcome
Application granted; the Bank's cancellation of the sale in execution agreement is set aside.
Judges
Revelas
Legal Topics
Sale in Execution, Iustus Error, Auction Conditions, Rule 46, Contract Rectification
Civil Procedure Land and Property Sale in Execution Iustus Error Auction Conditions Rule 46 Contract Rectification

Case Brief

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Parties

Glenn Leaver McCreath

Applicant

Marthinus Johannes Wolmarans N.O.

Respondent

Nedbank Limited

Respondent

Newton Glenn Bower

Respondent

Denise Bower

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the cancellation of the sale in execution agreement by the execution creditor was valid under clause 3.2 of the conditions of sale.
  2. 2 Whether a bona fide error by the Bank's attorney regarding the applicable Court Rules entitled the Bank to cancel the agreement.
  3. 3 Whether the applicant and first respondent had a duty to inform the Bank's attorney of his error.

Ratio Decidendi

The court found that the error made by the Bank's attorney was due to his ignorance of Rule 46(12) and the conditions of sale, not an error in the execution of the Court Rules as contemplated by clause 3.2. The conditions of sale, drafted by the Bank's own attorneys, clearly required the property to be sold to the highest bidder without reserve, in line with Rule 46(12). The applicant and first respondent had no duty to inform the Bank's attorney of his error, and the circumstances did not warrant the application of the SONAP principle regarding consensus. The sale was lawfully concluded at the fall of the hammer, and the Bank is bound by the signed conditions of sale. The purported...

Court Disposition

Application granted; the Bank's cancellation of the sale in execution agreement is set aside.

Orders

  • The first and/or second respondent's cancellation of the agreement is set aside.
  • It is declared that the Conditions of Sale in Execution of Immovable Property signed by the applicant and the first respondent on 8 August 2008 constitute a valid agreement of sale in favour of the applicant relating to erf 6[...], Port Alfred, Nladambe Municipality, Division of Bathurst, Province of the Eastern...