Sheriff of the High Court, Johannesburg East v Gudsoul Events and Projects (Pty) Ltd, In re: Firstrand Bank Limited v Thindisa (56924/2013) [2016] ZAGPPHC 1014 (30 October 2016)
The court found that the Conditions of Sale were invalid due to the non-disclosure of amounts in clauses 4.8.1 and 4.8.2, which were left blank and unknown to the respondent at the time of signing. This invalidity was previously pronounced in a similar matter. Although the reason for cancellation in this case was...
Source-derived case information.
- Citation
- [2016] ZAGPPHC 1014
- Parties
- Applicant: Sheriff of the High Court, Johannesburg East; Respondent: Gudsoul Events and Projects (Pty) Ltd; Plaintiff: Firstrand Bank Limited; Defendant: Maoikeledi Martha Thindisa
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 56924/2013
- Procedural Posture
- Urgent Application / Application for Cancellation of Sale in Execution
- Outcome
- Application granted; sale in execution cancelled; costs to be paid by applicant de bonis propriis.
- Judges
- Mbongwe
- Legal Topics
- Sale in Execution, Invalid Conditions of Sale, Rule 46 Application
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheriff of the High Court, Johannesburg East
Applicant
Gudsoul Events and Projects (Pty) Ltd
Respondent
Firstrand Bank Limited
Plaintiff
Maoikeledi Martha Thindisa
Defendant
Procedural Posture
Urgent Application / Application for Cancellation of Sale in Execution
Legal Issues
- 1 Whether the conditions of sale in execution were valid and enforceable.
- 2 Whether the sale in execution should be cancelled due to non-payment of the balance purchase price.
- 3 Whether the applicant should bear the costs de bonis propriis for failure to rectify the conditions of sale.
Ratio Decidendi
The court found that the Conditions of Sale were invalid due to the non-disclosure of amounts in clauses 4.8.1 and 4.8.2, which were left blank and unknown to the respondent at the time of signing. This invalidity was previously pronounced in a similar matter. Although the reason for cancellation in this case was non-payment of the balance purchase price, the underlying invalidity of the Conditions of Sale persisted. The applicant, as agent of the judgment creditor, was entitled to relief, but the court expressed displeasure at the applicant's continued failure to rectify the conditions of sale. Accordingly, the sale in execution was cancelled, and the applicant was ordered to pay the...
Court Disposition
Application granted; sale in execution cancelled; costs to be paid by applicant de bonis propriis.
Orders
- An order is granted in terms of prayers 1 and 2 of the notice on motion.
- The costs relating to the sale of the property to the respondent on 28 April 2016, including the costs of this application, are to be paid by the applicant de bonis propriis.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 56924/2013
30/10/2016
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In the matter between:
THE SHERIFF OF THE HIGH COURT, JOHANNESBURG EAST Applicant
and
GUDSOUL EVENTS AND PROJECTS (PTY) LTD Respondent
In re
FIRSTRAND BANK LIMITED Plaintiff
MAOIKELEDI MARTHA THINDISA Defendant
JUDGMENT
MBONGWE, AJ:
[1] The applicant in this matter seeks an order in terms of rule 46(11) of the Rules of the Court for the cancellation of a sale in execution of an attached immovable property. The relevant conditions of sale, signed by both parties on the 28 April 2016 form part of the attachments to the application. This application was considered in chambers.
[2] The reason advanced for the relief sought is set out in the letter of demand dated 20 May 2016 and addressed to the respondent as follows; "In terms of clause 4.4 of the Conditions of Sale, the balance purchase price of R54 000,00 had to be paid/guaranteed within
21 days from the date of the sale, namely by no later than 19 May 2016. To date hereof and despite requests thereto on 3 and 12 May 2016, no payment/guarantee has been received."
[3] It is noted that clauses 4.8.1 and 4.8.2 were left blank resulting in the amounts that were to be inserted therein by the applicant/
creditor and thereby made known to the. respondent prior to the conditions of sale being signed were unknown to the respondent at the time of signing. That rendered the Conditions of Sale invalid. The applicant was a in. the case of The Sheriff of the High Court, Johannesburg East v Chetty. 009/3673 [2014] ZAGPJHC 352 wherein the invalidity of the Conditions of Sale due to the non-disclosure of arrear municipality and other arrears amounts payable by the purchaser of the property was pronounced. The reason for the cancellation in the present matter is not directly related to the said non -disclosure, but the Conditions of Sale as they stand remain invalid.
[4] The applicant is an agent of the judgment creditor in this case. It will, therefore, not accord with justice to not grant this
application on its own merits for the sake of the judgment creditor, but the court's displeasure resulting from the applicant's continued failure to rectify his conditions of sale needs to be demonstrated.
[5] In the result the following order is made:
1. An order is granted in terms of prayers 1 and 2 of the notice on motion.
2. The costs relating to the sale of the property to the respondent on 28 April 2016 including the costs of this application are to be paid by the applicant de bonis proprii.
____________________
MBONGWE,AJ
ACTING JUDGE OF THE GAUTENG HIGH COURT.