Nedcor Bank Ltd v Kindo and Another (A566/00) [2002] ZAWCHC 10; 2002 (3) SA 185 (C) (28 February 2002)

Nedcor Bank Ltd v Kindo and Another (A566/00) [2002] ZAWCHC 10; 2002 (3) SA 185 (C) (28 February 2002)

The court held that the right of a mortgagee to have mortgaged property declared executable arises by operation of law and does not require an express term in the mortgage bond. The executability of the property is inherent to the nature of a mortgage and is supported by Roman law, Roman Dutch authorities, and South African legal principles. Requiring a separate application for executability under section 66 of the Magistrates Court Act would be contrary to established authority and would undermine the purpose of a registered bond. The mortgagee is entitled to a court order declaring the property executable upon foreclosure and default, ensuring both the right and remedy for the creditor.

Citation
[2002] ZAWCHC 10
Parties
Appellant: Nedcor Bank Ltd; Respondent: HJ Kindo; Respondent: DK Kindo
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 February 2002
Case Number
A566/00
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld; order declaring mortgaged property executable granted.
Judges
Hlophe, Motala
Legal Topics
Mortgage Bond Enforcement, Declaration of Executability, Foreclosure, Remedies for Default, Magistrates Court Procedure
Land and Property Civil Procedure Banking and Finance Mortgage Bond Enforcement Declaration of Executability Foreclosure Remedies for Default Magistrates Court Procedure

Case Brief

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Parties

Nedcor Bank Ltd

Appellant

HJ Kindo

Respondent

DK Kindo

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether a mortgagee is entitled to an order declaring mortgaged property executable in the absence of an express term in the mortgage bond.
  2. 2 Whether the right to sell mortgaged property in execution arises by operation of law or requires express contractual provision.
  3. 3 Whether section 66 of the Magistrates Court Act 32 of 1944 requires a separate application for executability.

Ratio Decidendi

The court held that the right of a mortgagee to have mortgaged property declared executable arises by operation of law and does not require an express term in the mortgage bond. The executability of the property is inherent to the nature of a mortgage and is supported by Roman law, Roman Dutch authorities, and South African legal principles. Requiring a separate application for executability under section 66 of the Magistrates Court Act would be contrary to established authority and would undermine the purpose of a registered bond. The mortgagee is entitled to a court order declaring the property executable upon foreclosure and default, ensuring both the right and remedy for the creditor.

Court Disposition

Appeal upheld; order declaring mortgaged property executable granted.

Orders

  • The appeal is upheld with costs.
  • The mortgaged property being Erf 2044, Ocean View held under Deed of Transfer No. T75162/1999 is declared executable.