Nedcor Bank Limited v Machete and Others (34749/20065) [2007] ZAGPHC 253 (2 November 2007)

Nedcor Bank Limited v Machete and Others (34749/20065) [2007] ZAGPHC 253 (2 November 2007)

The court found that the applicant had locus standi, as the changes in the bank's name did not alter its legal identity. The evidence established that the applicant was the bondholder at all relevant times. The second respondent failed to comply with Rule 43(2) of the Magistrate's Courts Rules by not serving the warrant of attachment on the bondholder and the registrar of deeds. The respondents' reliance on advice from the municipality and attorneys was insufficient to excuse non-compliance with the procedural requirements. As a result, the sale in execution was invalid and had to be set aside.

Citation
[2007] ZAGPHC 253
Parties
Applicant: Nedcor Bank Limited; Respondent: Steven Machete; Respondent: The Sheriff, Giyani; Respondent: Mercantile Bank Limited
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
2 November 2007
Case Number
34749/20065
Procedural Posture
Review Application / Judgment
Outcome
The sale in execution held on 5 April 2001 in respect of Erf 1075, Giyani E Township, Limpopo, is set aside. Costs are awarded against the first and second respondents, jointly and severally.
Judges
W L Seriti
Legal Topics
Sale in Execution, Locus Standi, Mortgage Bond Priority, Service of Process, Magistrates Court Rules
Civil Procedure Land and Property Sale in Execution Locus Standi Mortgage Bond Priority Service of Process Magistrates Court Rules

Case Brief

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Parties

Nedcor Bank Limited

Applicant

Steven Machete

Respondent

The Sheriff, Giyani

Respondent

Mercantile Bank Limited

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the sale in execution of Erf 1075, Giyani E Township, Limpopo, should be set aside due to procedural irregularities.
  2. 2 Whether the applicant, Nedcor Bank Limited, has locus standi to bring the application given the changes in its corporate name.
  3. 3 Whether the requirements of Rule 43(2) of the Magistrate's Courts Rules regarding service of the warrant of attachment were complied with.

Ratio Decidendi

The court found that the applicant had locus standi, as the changes in the bank's name did not alter its legal identity. The evidence established that the applicant was the bondholder at all relevant times. The second respondent failed to comply with Rule 43(2) of the Magistrate's Courts Rules by not serving the warrant of attachment on the bondholder and the registrar of deeds. The respondents' reliance on advice from the municipality and attorneys was insufficient to excuse non-compliance with the procedural requirements. As a result, the sale in execution was invalid and had to be set aside.

Court Disposition

The sale in execution held on 5 April 2001 in respect of Erf 1075, Giyani E Township, Limpopo, is set aside. Costs are awarded against the first and second respondents, jointly and severally.

Orders

  • The sale in execution held on 5 April 2001 in respect of Erf 1075, Giyani E Township, Limpopo is set aside.
  • The first and second respondents are to pay the costs of the applicant, jointly and severally, the one paying the other to be absolved.