Pedlar and Another v First Rand Bank Limited and Others (2010/53126) [2017] ZAGPPHC 162 (14 February 2017)

Pedlar and Another v First Rand Bank Limited and Others (2010/53126) [2017] ZAGPPHC 162 (14 February 2017)

The court found that the settlement agreement, made an order of court, did not entitle the bank to sell the applicants' property upon default. The only remedy provided to the bank in the event of default was to seek summary judgment, not to execute against the property without judicial supervision. The sale of the property by the bank, relying solely on the special power of attorney and without first obtaining a court order declaring the property executable, amounted to unlawful paratie executie. The applicants' default under the settlement agreement did not entitle the bank to sell the property, and the sale to Mamma Mia Trust was accordingly set aside. The applicants failed to make out...

Citation
[2017] ZAGPPHC 162
Parties
Applicant: Arthur Peter Pedlar; Applicant: Sandra Joanna Pedlar; Respondent: First Rand Bank Limited; Respondent: Christian van Heerden N.O; Respondent: Cristel Steyn N.O; Respondent: Reachout Trust and Legal (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 February 2017
Case Number
2010/53126
Procedural Posture
Review Application / Application to Set Aside Prior Court Order and Sale in Execution
Outcome
The sale of the property by First Rand Bank Limited to Mamma Mia Trust is set aside. The applicants' request to set aside the court order of 21 June 2011 is refused. Costs of the application are to be paid by the applicants, except for the second, third, and fourth respondents.
Judges
Tsatsawane
Legal Topics
Paratie Executie, Summary Judgment, Sale in Execution, Mortgage Bond, Settlement Agreement
Civil Procedure Land and Property Paratie Executie Summary Judgment Sale in Execution Mortgage Bond Settlement Agreement

Case Brief

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Parties

Arthur Peter Pedlar

Applicant

Sandra Joanna Pedlar

Applicant

First Rand Bank Limited

Respondent

Christian van Heerden N.O

Respondent

Cristel Steyn N.O

Respondent

Reachout Trust and Legal (Pty) Ltd

Respondent

Procedural Posture

Review Application / Application to Set Aside Prior Court Order and Sale in Execution

Legal Issues

  1. 1 Whether the special power of attorney granted to the bank amounted to unlawful paratie executie.
  2. 2 Whether the sale of the applicants' primary residence by the bank without a court order declaring the property executable was lawful.
  3. 3 Whether the settlement agreement and subsequent court order entitled the bank to sell the property in the event of default.

Ratio Decidendi

The court found that the settlement agreement, made an order of court, did not entitle the bank to sell the applicants' property upon default. The only remedy provided to the bank in the event of default was to seek summary judgment, not to execute against the property without judicial supervision. The sale of the property by the bank, relying solely on the special power of attorney and without first obtaining a court order declaring the property executable, amounted to unlawful paratie executie. The applicants' default under the settlement agreement did not entitle the bank to sell the property, and the sale to Mamma Mia Trust was accordingly set aside. The applicants failed to make out...

Court Disposition

The sale of the property by First Rand Bank Limited to Mamma Mia Trust is set aside. The applicants' request to set aside the court order of 21 June 2011 is refused. Costs of the application are to be paid by the applicants, except for the second, third, and fourth respondents.

Orders

  • The sale of the property described as the Remaining Extent of Holding 53 Raslouw Agricultural Holdings, Registration Division J.R., Province of Gauteng by First Rand Bank Limited to Mamma Mia Trust on 25 February 2015 is set aside.
  • The costs of this application shall be paid by the applicants.