Sheriff Wonderboom v Msomi obo Cate Properties (13731/2011) [2014] ZAGPPHC 217 (4 April 2014)
- Citation
- [2014] ZAGPPHC 217
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Janse van Nieuwenhuizen
- Case number
- 13731/2011
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Janse van Nieuwenhuizen
- Case number
- 13731/2011
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the provisions of rule 46(11) of the Uniform Rules of Court do not require the sheriff to file a formal application, but only a report. Filing an application results in unnecessary costs, which is not justified by the rule. Once the property has been sold, the sheriff may file a further report regarding damages suffered due to the purchaser's non-compliance with the sale agreement. Accordingly, the court granted the orders sought in prayers 1 and 3 of the notice of motion, dismissed prayer 2.1, and postponed prayers 2.2 and 2.3 sine die.
Court disposition
Order granted in terms of prayers 1 and 3 of the notice of motion; prayer 2.1 dismissed; prayers 2.2 and 2.3 postponed sine die.
Orders
- Order is granted in terms of prayers 1 and 3 of the notice of motion.
- Prayer 2.1 is dismissed.
- Prayers 2.2 and 2.3 are postponed sine die.
02
Material facts
Parties
Sheriff Wonderboom
ApplicantC Msomi obo Cate Properties
RespondentABSA Bank Limited
PlaintiffStanford Moeketsi Thoothe
Defendant03
Procedural history
Posture
Civil Application / Application Under Rule 46(11) of the Uniform Rules of Court
04
Questions and positions
Legal issues
- 01
Whether the sheriff is required to file a report and application under rule 46(11) of the Uniform Rules of Court.
- 02
Whether the incurring of unnecessary costs through such application is justified.
- 03
What procedure should be followed when damages are suffered due to purchaser's non-compliance with the sale agreement.
Party arguments
- Applicant
- The applicant contends that in terms of rule 46(11), the sheriff is not required to file a formal application, as the rule only necessitates the filing of a report. The applicant submits that unnecessary costs are incurred when an application is filed, which is not required by the rule.
- Respondent
- The respondent argues that a formal application is necessary to properly ventilate the issues and ensure procedural fairness, especially where damages are claimed due to non-compliance with the sale agreement.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 46(11)
Rule 46(11) of the Uniform Rules of Court does not require the sheriff to file a formal application; a report suffices.
- 02
Sheriff, Hlabisa and Nongoma v Shobeka 2009 (6) SA 272 (KZN)
Unnecessary costs should be avoided in procedural matters where the rules do not require formal applications.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the provisions of rule 46(11) of the Uniform Rules of Court do not require the sheriff to file a formal application, but only a report. Filing an application results in unnecessary costs, which is not justified by the rule. Once the property has been sold, the sheriff may file a further report regarding damages suffered due to the purchaser's non-compliance with the sale agreement. Accordingly, the court granted the orders sought in prayers 1 and 3 of the notice of motion, dismissed prayer 2.1, and postponed prayers 2.2 and 2.3 sine die.
Obiter and limits
- The court noted that procedural efficiency is paramount and unnecessary applications should be discouraged where the rules do not require them.
- The sheriff's role post-sale is limited to reporting damages suffered due to purchaser's non-compliance, not initiating further applications unless strictly necessary.
Court disposition
Order granted in terms of prayers 1 and 3 of the notice of motion; prayer 2.1 dismissed; prayers 2.2 and 2.3 postponed sine die.
- Order is granted in terms of prayers 1 and 3 of the notice of motion.
- Prayer 2.1 is dismissed.
- Prayers 2.2 and 2.3 are postponed sine die.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case No: 13731/2011
Date: 4 April 2014
Not Reportable
Not of interest to other judges
In the matter between:
THE
SHERIFF WONDERBOOM.......................................................................... Applicant
And
C MSOMI OBO CATE PROPERTIES............................................... Respondent/ Purchaser
In re -
ABSA
BANK LIMITED..............................................................................................Plaintiff
STANFORD
MOEKETSI THOOTHE..................................................................Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1] This is an application in terms of the provisions of rule 46(11) of the Uniform rules of court.
[2] In terms of the rule, the sheriff should file a report and an application, which result in the incurring of unnecessary costs, is not necessary. [See: Sheriff, Hlabisa and Nongoma v Shobeka 2009 (6) SA 272 (KZN)].
[3] Once the property has been sold, the sheriff may file a further report in respect of the damages that was suffered as a result of the purchaser's non-compliance with the terms of the sale agreement.
ORDER
1. An order is granted in terms of prayers 1 and 3 of the notice of motion.
2. Prayer 2.1 is dismissed.
3. Prayers 2.2 and 2.3 is postponed sine die.
JANSE VAN NIEUWENHU1ZEN J
JUDGE OF THE GAUTENG HIGH COURT OF SOUTH-AFRICA
PRETORIA
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