Sheriff Wonderboom v Msomi obo Cate Properties (13731/2011) [2014] ZAGPPHC 217 (4 April 2014)

Sheriff Wonderboom v Msomi obo Cate Properties (13731/2011) [2014] ZAGPPHC 217 (4 April 2014)

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.

Citation
[2014] ZAGPPHC 217
Parties
Applicant: Sheriff Wonderboom; Respondent: C Msomi obo Cate Properties; Plaintiff: ABSA Bank Limited; Defendant: Stanford Moeketsi Thoothe
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 April 2014
Case Number
13731/2011
Procedural Posture
Civil Application / Application Under Rule 46(11) of the Uniform Rules of Court
Outcome
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.
Judges
Janse van Nieuwenhuizen
Legal Topics
Rule 46 Uniform Rules, Sheriff Report, Sale in Execution, Damages for Non Compliance
Civil Procedure Land and Property Rule 46 Uniform Rules Sheriff Report Sale in Execution Damages for Non Compliance

Case Brief

Summary, issues, holding and outcome

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Parties

Sheriff Wonderboom

Applicant

C Msomi obo Cate Properties

Respondent

ABSA Bank Limited

Plaintiff

Stanford Moeketsi Thoothe

Defendant

Procedural Posture

Civil Application / Application Under Rule 46(11) of the Uniform Rules of Court

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 incurring of unnecessary costs through such application is justified.
  3. 3 What procedure should be followed when damages are suffered due to purchaser's non-compliance with the sale agreement.

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.

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.