Nortje and Another v Nedbank Ltd and Others (8667/2019) [2019] ZAWCHC 88 (3 July 2019)

Nortje and Another v Nedbank Ltd and Others (8667/2019) [2019] ZAWCHC 88 (3 July 2019)

The applicants have no prospect of success in their declaratory application, as the validity of the mortgage bond and loan agreement has already been determined by a final judgment, and all appeals have been exhausted. The matter is res judicata, and any further challenge constitutes an abuse of process. The alleged defect in the mortgage bond—the omission of the conveyancer's name—is not a fatal defect under the Deeds Registries Act, which requires only that the bond be executed by the owner or a duly authorised conveyancer. The evidence establishes that the applicants signed the necessary documents and that the conveyancer appeared before the registrar to execute the bond. The...

Citation
[2019] ZAWCHC 88
Parties
Applicant: Garon Kevin Nortje; Applicant: Rosalind Magdeline Nortje; Respondent: Nedbank Ltd; Respondent: Smith Tabata Buchanan Boyes; Respondent: Ricardo Leslie Rynhardt; Respondent: Tamara Delphine Rynhardt; Respondent: The Sheriff Wynberg South; Respondent: The Registrar of the Deeds Office
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
3 July 2019
Case Number
8667/2019
Procedural Posture
Urgent Application / Application for Urgent Interdict Pending Declaratory Relief
Outcome
Application dismissed with costs; counter-application postponed sine die.
Judges
O L Rogers
Legal Topics
Interdict, Mortgage Bond Validity, Res Judicata, Abuse of Process, Formal Defect in Deed, Power of Attorney
Civil Procedure Land and Property Interdict Mortgage Bond Validity Res Judicata Abuse of Process Formal Defect in Deed Power of Attorney

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Parties

Garon Kevin Nortje

Applicant

Rosalind Magdeline Nortje

Applicant

Nedbank Ltd

Respondent

Smith Tabata Buchanan Boyes

Respondent

Ricardo Leslie Rynhardt

Respondent

Tamara Delphine Rynhardt

Respondent

The Sheriff Wynberg South

Respondent

The Registrar of the Deeds Office

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict Pending Declaratory Relief

Legal Issues

  1. 1 Whether the applicants are entitled to an urgent interdict preventing transfer of their property pending determination of a declaratory application.
  2. 2 Whether the mortgage bond over the property is invalid due to an alleged formal defect.
  3. 3 Whether the prior summary judgment and exhaustion of appeals render the applicants' claims res judicata.

Ratio Decidendi

The applicants have no prospect of success in their declaratory application, as the validity of the mortgage bond and loan agreement has already been determined by a final judgment, and all appeals have been exhausted. The matter is res judicata, and any further challenge constitutes an abuse of process. The alleged defect in the mortgage bond—the omission of the conveyancer's name—is not a fatal defect under the Deeds Registries Act, which requires only that the bond be executed by the owner or a duly authorised conveyancer. The evidence establishes that the applicants signed the necessary documents and that the conveyancer appeared before the registrar to execute the bond. The...

Court Disposition

Application dismissed with costs; counter-application postponed sine die.

Orders

  • The application for relief set out in the applicants' notice of motion dated 22 May 2019 and amended notice of motion dated 24 June 2019 is dismissed with costs.
  • The first respondent's counter-application is postponed sine die.