Nedbank Limited v Schamrel (07374/2016) [2017] ZAGPJHC 390 (28 November 2017)

Nedbank Limited v Schamrel (07374/2016) [2017] ZAGPJHC 390 (28 November 2017)

The applicant is contractually entitled to seek orders declaring the respondent's mortgaged properties specially executable for the outstanding judgment debt. The respondent did not provide sufficient evidence of any agreement regarding the sale price of the previously auctioned property, nor did he disclose movable assets that could satisfy the debt. The court found no material factual dispute and no reason to deny the applicant's relief. The applicant failed to justify attorney and client costs, as the supporting documents were not properly placed before the court. Accordingly, the court granted the orders declaring the two properties specially executable and authorised the issue of...

Citation
[2017] ZAGPJHC 390
Parties
Applicant: Nedbank Limited; Respondent: Schamrel, Johan
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 November 2017
Case Number
07374/2016
Procedural Posture
Civil Application / Opposed Motion; Application for Special Executability
Outcome
Application granted; two properties declared specially executable and costs awarded to the applicant.
Judges
DP de Villiers
Legal Topics
Special Executability, Judgment Enforcement, Mortgage Loan Default, Sale in Execution
Civil Procedure Land and Property Special Executability Judgment Enforcement Mortgage Loan Default Sale in Execution

Case Brief

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Parties

Nedbank Limited

Applicant

Schamrel, Johan

Respondent

Procedural Posture

Civil Application / Opposed Motion; Application for Special Executability

Legal Issues

  1. 1 Whether the applicant is entitled to have the respondent's two mortgaged properties declared specially executable for the judgment debt.
  2. 2 Whether the applicant is required to first execute against movable assets before seeking execution against immovable property.
  3. 3 Whether the respondent's objections regarding the sale price of previously auctioned property create a material factual dispute.

Ratio Decidendi

The applicant is contractually entitled to seek orders declaring the respondent's mortgaged properties specially executable for the outstanding judgment debt. The respondent did not provide sufficient evidence of any agreement regarding the sale price of the previously auctioned property, nor did he disclose movable assets that could satisfy the debt. The court found no material factual dispute and no reason to deny the applicant's relief. The applicant failed to justify attorney and client costs, as the supporting documents were not properly placed before the court. Accordingly, the court granted the orders declaring the two properties specially executable and authorised the issue of...

Court Disposition

Application granted; two properties declared specially executable and costs awarded to the applicant.

Orders

  • Erf [...] Uitenhage, Nelson Mandela Bay Metropolitan Municipality, Division of Uitenhage, Province of Eastern Cape, Measuring 818 Square Metres and held by Deed of Transfer No. T31006/1997, is declared specially executable, subject to the conditions therein contained.
  • Erf [...] Riebeeckstad, District of Welkom, Province of the Free State, Measuring 833 Square Metres and held by Deed of Transfer No. T030882/2003, is declared specially executable, subject to the conditions therein contained.