Sheriff of the High Court, Rustenburg v Dintoe (51384/2012) [2014] ZAGPPHC 441 (29 April 2014)

Sheriff of the High Court, Rustenburg v Dintoe (51384/2012) [2014] ZAGPPHC 441 (29 April 2014)

The court held that the sheriff is not required to file a report and application under rule 46(11) of the Uniform Rules of Court, as this practice results in unnecessary costs. The deposit paid by the purchaser shall be retained in trust by the sheriff until the property is sold to a third party and any aggrieved creditor's loss has been quantified and judgment granted in respect thereof, as contemplated by rule 46(11)(b). Prayers 3, 5, and 6 of the notice of motion were dismissed as they were not supported by the applicable legal principles.

Citation
[2014] ZAGPPHC 441
Parties
Applicant: Sheriff of the High Court, Rustenburg; Respondent: Motlagoilwe Dintoe; Plaintiff: The Standard Bank of South Africa Ltd; Defendant: Justus Alfred Theodoor Boswel; Defendant: Mercia Boswel
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 April 2014
Case Number
51384/2012
Procedural Posture
Civil Application / Application Under Rule 46(11)
Outcome
Application granted in part; prayers 1 and 2 granted, prayers 3, 5, and 6 dismissed.
Judges
Janse van Nieuwenhuizen
Legal Topics
Uniform Rules of Court Rule 46, Sheriff Powers, Judicial Sale of Property, Trust Deposit, Creditor Loss Quantification
Civil Procedure Land and Property Uniform Rules of Court Rule 46 Sheriff Powers Judicial Sale of Property Trust Deposit Creditor Loss Quantification

Case Brief

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Parties

Sheriff of the High Court, Rustenburg

Applicant

Motlagoilwe Dintoe

Respondent

The Standard Bank of South Africa Ltd

Plaintiff

Justus Alfred Theodoor Boswel

Defendant

Mercia Boswel

Defendant

Procedural Posture

Civil Application / Application Under Rule 46(11)

Legal Issues

  1. 1 Whether the sheriff is required to file a report and application under rule 46(11) of the Uniform Rules of Court.
  2. 2 Whether the deposit paid by the purchaser should be retained in trust until the property is sold to a third party and a creditor's loss is quantified.

Ratio Decidendi

The court held that the sheriff is not required to file a report and application under rule 46(11) of the Uniform Rules of Court, as this practice results in unnecessary costs. The deposit paid by the purchaser shall be retained in trust by the sheriff until the property is sold to a third party and any aggrieved creditor's loss has been quantified and judgment granted in respect thereof, as contemplated by rule 46(11)(b). Prayers 3, 5, and 6 of the notice of motion were dismissed as they were not supported by the applicable legal principles.

Court Disposition

Application granted in part; prayers 1 and 2 granted, prayers 3, 5, and 6 dismissed.

Orders

  • An order is granted in terms of prayers 1 and 2 of the notice of motion.
  • The deposit shall be retained in trust by the Sheriff until such time as the property has been sold to a third party and an aggrieved creditor’s loss has been quantified and judgment has been granted in respect thereof as intended by the provisions of Rule 46(11)(b).