Mokase and Another v First Rand Bank Limited and Others (59792/2009) [2015] ZAGPPHC 681 (2 October 2015)

Mokase and Another v First Rand Bank Limited and Others (59792/2009) [2015] ZAGPPHC 681 (2 October 2015)

The court found that the sale in execution was valid and binding, as the payment by the first applicant was made after the auction had concluded. The applicants failed to take timely action to rescind the judgment or halt the sale before the hammer fell. The interests of innocent third parties, namely the fourth and fifth respondents, who lawfully purchased and paid for the property, were paramount. The applicants' claim for reinstatement of the mortgage bond and reversal of transfer was legally unfounded, as the National Credit Act and case law make clear that reinstatement is not possible after execution and transfer. The application was dismissed, and costs were awarded on an attorney...

Citation
[2015] ZAGPPHC 681
Parties
Applicant: Morris Mokase; Applicant: Martina Lilly Mokase; Respondent: First Rand Bank Limited; Respondent: DJ Schoonraad; Respondent: Viljoen Quinn Incorporated; Respondent: Reginald Lebogang Maake; Respondent: Boniswa Ntebogeng Maake; Respondent: Registrar of Deeds; Respondent: Sheriff Pretoria West; Respondent: ABSA Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 October 2015
Case Number
59792/2009
Procedural Posture
Urgent Application / Final Adjudication of Main Application After Interim Interdict and Counter Application
Outcome
Application dismissed with costs on an attorney and client scale.
Judges
Mali
Legal Topics
Sale in Execution, Mortgage Bond, Reinstatement of Credit Agreement, Innocent Third Party Rights, Costs on Attorney and Client Scale
Civil Procedure Land and Property Sale in Execution Mortgage Bond Reinstatement of Credit Agreement Innocent Third Party Rights Costs on Attorney and Client Scale

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 6 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Morris Mokase

Applicant

Martina Lilly Mokase

Applicant

First Rand Bank Limited

Respondent

DJ Schoonraad

Respondent

Viljoen Quinn Incorporated

Respondent

Reginald Lebogang Maake

Respondent

Boniswa Ntebogeng Maake

Respondent

Registrar of Deeds

Respondent

Sheriff Pretoria West

Respondent

ABSA Bank Limited

Respondent

Procedural Posture

Urgent Application / Final Adjudication of Main Application After Interim Interdict and Counter Application

Legal Issues

  1. 1 Whether the sale in execution of the property on 30 April 2009 should be declared null and void.
  2. 2 Whether the mortgage bond should be reinstated and reregistered in favour of the applicants.
  3. 3 Whether transfer of the property should be reverted to the applicants and cancelled in the names of the fourth and fifth respondents.

Ratio Decidendi

The court found that the sale in execution was valid and binding, as the payment by the first applicant was made after the auction had concluded. The applicants failed to take timely action to rescind the judgment or halt the sale before the hammer fell. The interests of innocent third parties, namely the fourth and fifth respondents, who lawfully purchased and paid for the property, were paramount. The applicants' claim for reinstatement of the mortgage bond and reversal of transfer was legally unfounded, as the National Credit Act and case law make clear that reinstatement is not possible after execution and transfer. The application was dismissed, and costs were awarded on an attorney...

Court Disposition

Application dismissed with costs on an attorney and client scale.

Orders

  • The order granted by this Honourable Court on 29 September 2009 is discharged.
  • The application by the first and second applicants is dismissed.