Sampo and Another v Ivan Davies Theunissen Inc and Others (35051/2003) [2007] ZAGPHC 203 (3 September 2007)

Sampo and Another v Ivan Davies Theunissen Inc and Others (35051/2003) [2007] ZAGPHC 203 (3 September 2007)

The court found the applicants' evidence unreliable and inconsistent, particularly regarding their arrival time and the amount of money presented on 21 November 2003. The respondents' witnesses were found credible and their version accepted. The court held that no agreement existed to cancel the sale upon payment of arrears in instalments, but a conditional agreement did exist for cancellation if R10,000 was paid before 15:00. The applicants failed to comply with this condition, arriving after the deadline and with insufficient funds. The argument that the attachment had lapsed under section 66(4) of the Magistrates' Courts Act was rejected, as the property was not subject to a claim...

Citation
[2007] ZAGPHC 203
Parties
Applicant: D Sampo; Applicant: M S Sampo; Respondent: Ivan Davies Theunissen Inc; Respondent: P H Meyer; Respondent: ABSA Bank Ltd; Respondent: The Sheriff of the Magistrate's Court for the District of Springs
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
3 September 2007
Case Number
35051/2003
Procedural Posture
Urgent Application / Final Judgment After Oral Evidence
Outcome
Application dismissed with costs.
Judges
T M Makgoka
Legal Topics
Sale in Execution, Attachment of Property, Magistrates Courts Act, Preferent Creditor, Oral Evidence, Mortgage Bond
Civil Procedure Land and Property Sale in Execution Attachment of Property Magistrates Courts Act Preferent Creditor Oral Evidence Mortgage Bond

Case Brief

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Parties

D Sampo

Applicant

M S Sampo

Applicant

Ivan Davies Theunissen Inc

Respondent

P H Meyer

Respondent

ABSA Bank Ltd

Respondent

The Sheriff of the Magistrate's Court for the District of Springs

Respondent

Procedural Posture

Urgent Application / Final Judgment After Oral Evidence

Legal Issues

  1. 1 Whether the sale in execution of the applicants' property should be set aside.
  2. 2 Whether an agreement existed to cancel the sale in execution upon payment of arrears in instalments.
  3. 3 Whether an agreement existed to cancel the sale in execution upon payment of R10,000 before 15:00 on 21 November 2003.

Ratio Decidendi

The court found the applicants' evidence unreliable and inconsistent, particularly regarding their arrival time and the amount of money presented on 21 November 2003. The respondents' witnesses were found credible and their version accepted. The court held that no agreement existed to cancel the sale upon payment of arrears in instalments, but a conditional agreement did exist for cancellation if R10,000 was paid before 15:00. The applicants failed to comply with this condition, arriving after the deadline and with insufficient funds. The argument that the attachment had lapsed under section 66(4) of the Magistrates' Courts Act was rejected, as the property was not subject to a claim...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs, including the costs reserved on 22 February 2005 and 11 December 2005.
  • First and Third Respondents are ordered to pay the costs of 16 September 2004.