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

NOT

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA /BH

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 34749/20065

JUDGMENT DELIVERED: 2 NOVEMBER 2007

IN THE MATTER BETWEEN:

NEDCOR

BANK LIMITED APPLICANT

AND

STEVEN

MACHETE FIRST RESPONDENT

THE SHERIFF, GIYANI SECOND RESPONDENT

MERCANTILE

BANK LIMITED THIRD RESPONDENT

JUDGMENT

SERITI, J

1. The matter came to court by way of motion. In the notice of motion the applicant is seeking an order setting aside the sale in execution held on 5 April 2001 in respect of the property known as Erf 1075, Giyani E Township, Limpopo.

In the founding affidavit the applicant is described as Nedcor Bank Limited a company duly registered as such in accordance with the Company and Banking laws of the Republic of South Africa.

The first respondent bought the property for an amount of R10 000-00 in a sale in execution, which sale in execution was arranged by the second respondent on the instructions of the third respondent.

The third respondent is joined in the proceedings since it was the judgment creditor upon whose judgment the property was attached and sold in a sale in execution.

Mr Zamba George Maluleke, who was the previous registered owner of the property, obtained a loan from the applicant and a mortgage bond was registered over the property in favour of the applicant. Mr Maluleke also owned money to the third respondent and the latter obtained judgement against Mr Maluleke and attached the property under discussion. The debt of the third respondent was not secured by a mortgage bond over the property.

At the time of the sale in execution, Nedbank had a bond registered over the property in the amount of R90 700-00 and there was over R100 000-00 owing on the loan account of Mr Maluleke.

Mr Zamba George Maluleke fell into arrears on his bond instalments and eventually Nedbank obtained judgment against him and scheduled a sale in execution for 6 April 2006. Shortly before the sale in execution was to take place, the applicant was advised by the first respondent’s attorneys by letter that the first respondent bought the said property for an amount of R10 000-00 on 5 April 2001 at a sale in execution.

Prior to the receipt of the letter mentioned in the previous paragraph, the applicant was not aware of the sale in execution mentioned in the said letter.

In the answering affidavit, the first respondent challenged the locus standi of the applicant and stated that the mortgage bond was registered in favour of the Nedperm Bank Limited and it is not clear what the relationship is between Nedperm Bank Limited and Nedcor Bank Limited.

First respondent further alleged that he purchased the property in a bona fide manner at a sale in execution on 5 April 2001 from the second respondent, and the latter informed him that all the legal requirements were complied with.

He admits that he paid R10 000-00 for the immovable property.

At the time of buying the immovable property at the sale in execution he received a letter from Giyani Municipality dated 3 July 2001 wherein it was stated that there is no mortgage bond registered over the property. The second respondent, in its answering affidavit also challenged the locus standi of the applicant, as the mortgage bond was apparently in favour of Nedperk Bank Limited –

Second respondent confirmed that the immovable property was sold to the first respondent on 5 April 2001 at a sale in execution.

It was further stated by the second respondent that the Conveyancer’s Certificate attached to the founding affidavit indicates that Mr Zamba George Maluleke obtained a loan from Nedperm Bank Limited and not from the applicant. Second respondent further alleges that at the time of the sale in execution there was no mortgage bond registered over the property.

Second respondent further alleges that it gave no notice of the sale in execution to any bond holder as the second respondent was advised that no Mortgage bonds were registered over the property.

In the replying affidavit the applicant alleges that the mortgage bond was registered in favour of Nedperm Bank, and later, the latter changed its name to Nedcor Bank Limited and against changed the name to Nedbank Limited. The registration number of the company has remained the same and it is only the name that has changed.

Applicant referred to a list of Deeds Registries Circulars indicating the change of name from Nedperm Bank to Nedcor Bank Limited, which change was effected and recorded in circular 2 of 1989. Applicant further referred to Chief Registrar’s Circular no 15 of 2002 which indicates that in terms of section 44(1)(b) of the Companies Act, 1973 Nedcor Bank Limited (no 1951/000009/06) has changed its name to Nedbank Limited with effect from 21 November 2002.

Applicant further alleged that the application was brought in the old name, Nedcor Bank Limited. The legal entity has remained the same, and consequently applicant is the same corporation. At the hearing of the matter application will be made for the change of the name of the applicant to Nedbank Limited.

Applicant did not anticipate that the locus standi of the applicant will be challenged. At the time of the sale in execution in 2001, Nedbank Limited’s name was still Nedcor Bank Limited which is a successor in title of Nedperm Bank Limited and for that reason, in this application the name Nedcor Bank Limited was incorrectly used. Nedbank Limited is a successor in title of Nedcor Bank Limited.

In the Heads of Argument the second respondent’s counsel submitted that Nedcor Bank Limited is a non-existent entity. At the time of launching this application, namely 19 October 2006 there was no company called Nedcor Bank Limited. He further submitted that the mortgage bond over the relevant property was registered in the name of Nedperm Bank Limited.

On the papers it is clear that Nedperm Bank Limited, Nedcor Bank Limited and Nedbank Limited is one company which changed names over a period. Nedbank Limited is a successor in title of Nedcor Bank Limited and the latter is a successor in title of Nedperm Bank Limited, and the company’s number remained the same at all relevant times. The attack of the locus standi of the applicant has no merits. We are dealing with one and the same banking institution.

Rule 43(2) of the Magistrate’s Courts Rules of court requires that warrant of attachment of an immovable property shall be served, inter alia, upon the registrar of deeds or other officer charged with the registration of such immovable property and upon all registered bond holders (other than the execution creditor.)

The facts of this case clearly indicate that the second respondent failed to serve the bond holder with the warrant of attachment.

The allegations by the second respondent that it was advised by attorney Smith and Giyani Municipality that, there was no bond registered over the property, does not assist the case of the respondents. The fact of the matter is that Rule 43 mentioned above was not complied with.

Rule 43(2) mentioned above require that the warrant of attachment must be served also on the registrar of deeds or other officer charged with the registration of such immovable property. If the second respondent had served the warrant of execution on the registrar of deeds, he would have realised that there was a mortgage bond registered over the property.

The applicant has made out a case for an order as prayed for in the notice of motion: The court therefore makes the following order:

The sale in execution held on 5 April 2001 in respect of the property known as Erf 1075, Giyani E Township LT, 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.

____

W

L SERITI

JUDGE

OF THE HIGH COURT

HEARD ON: 16 OCTOBER 2007

APPLICANT’S COUNSEL: MR M RIP SC

INSTRUCTED BY: FINDLAY AND NIEMEYER

RESPONDENTS’ COUNSEL: E B CLAVIER

INSTRUCTED BY: KRUGER, NAGEL & DE JAGER INC