Phillip and Another v First Rand Bank Ltd t/a FNB Homeloans formerly First Rand Bank of South Africa Ltd and Others (628/09) [2010] ZAKZPHC 50 (1 September 2010)

Phillip and Another v First Rand Bank Ltd t/a FNB Homeloans formerly First Rand Bank of South Africa Ltd and Others (628/09) [2010] ZAKZPHC 50 (1 September 2010)

The court found that the applicants failed to provide sufficient evidence of any binding arrangement with the first respondent for payment of arrears. Sporadic payments did not satisfy the judgment debt, and the first respondent was entitled to proceed with the sale in execution. Notice of the sale was properly given through SMS and publication, and Rule 46 does not require personal service of the sale notice. The applicants did not oppose the order declaring the property executable or offer alternative means of payment such as a garnishee order. The constitutional arguments were unsupported by facts; there was no evidence that the applicants' rights to property or housing were...

Citation
[2010] ZAKZPHC 50
Parties
Applicant: Gerald Phillip; Applicant: Salima Phillip; Respondent: First Rand Bank Limited t/a FNB Homeloans formerly First Rand Bank of South Africa Limited; Respondent: Registrar of Deeds, KwaZulu-Natal; Respondent: Trishan Heerall; Respondent: Sheriff of the High Court, Pietermaritzburg
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
1 September 2010
Case Number
628/09
Procedural Posture
Urgent Application / Application for Interdict Before Transfer of Immovable Property
Outcome
Application dismissed with costs on the attorney and client scale.
Judges
Lopes
Legal Topics
Sale in Execution, Notice of Sale, Default Judgment, Right to Housing, Attorney and Client Costs
Land and Property Civil Procedure Constitutional Law Sale in Execution Notice of Sale Default Judgment Right to Housing Attorney and Client Costs

Case Brief

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Parties

Gerald Phillip

Applicant

Salima Phillip

Applicant

First Rand Bank Limited t/a FNB Homeloans formerly First Rand Bank of South Africa Limited

Respondent

Registrar of Deeds, KwaZulu-Natal

Respondent

Trishan Heerall

Respondent

Sheriff of the High Court, Pietermaritzburg

Respondent

Procedural Posture

Urgent Application / Application for Interdict Before Transfer of Immovable Property

Legal Issues

  1. 1 Whether the applicants are entitled to an interdict preventing transfer of their property to the third respondent.
  2. 2 Whether an arrangement for payment of arrears with the first respondent precluded the sale in execution.
  3. 3 Whether the applicants received proper notice of the sale in execution.

Ratio Decidendi

The court found that the applicants failed to provide sufficient evidence of any binding arrangement with the first respondent for payment of arrears. Sporadic payments did not satisfy the judgment debt, and the first respondent was entitled to proceed with the sale in execution. Notice of the sale was properly given through SMS and publication, and Rule 46 does not require personal service of the sale notice. The applicants did not oppose the order declaring the property executable or offer alternative means of payment such as a garnishee order. The constitutional arguments were unsupported by facts; there was no evidence that the applicants' rights to property or housing were...

Court Disposition

Application dismissed with costs on the attorney and client scale.

Orders

  • The application is dismissed.
  • Costs are awarded against the applicants on the scale as between attorney and client.