Silverstone and Another v Absa Bank Limited and Others (66156/2012) [2017] ZAGPPHC 314 (5 July 2017)

Silverstone and Another v Absa Bank Limited and Others (66156/2012) [2017] ZAGPPHC 314 (5 July 2017)

The court found that Absa Bank, through its attorneys, gave an unequivocal and binding undertaking that transfer of the property would not proceed until the rescission application was adjudicated. The correspondence between the parties established the existence and terms of the undertaking, which was not conditional upon withdrawal of the urgent application. Absa's subsequent transfer of the property to itself and its intention to transfer to a third party constituted breaches of the undertaking and prejudiced the applicants' rights. The sale in execution was subject to the outcome of the rescission application, and Absa did not acquire an absolute right to transfer ownership prior to its...

Citation
[2017] ZAGPPHC 314
Parties
Applicant: Colin Wayne Silverstone; Applicant: Nurit Silverstone; Respondent: Absa Bank Limited; Respondent: Cynthia Pillay; Respondent: Registrar of Deeds, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 July 2017
Case Number
66156/2012
Procedural Posture
Urgent Application / Application for Urgent Interdict Pending Rescission of Default Judgment
Outcome
Application for urgent interdict granted in favour of the applicants.
Judges
N V Khumalo
Legal Topics
Interdict, Sale in Execution, Undertaking, Rescission of Judgment, Transfer of Property
Civil Procedure Land and Property Interdict Sale in Execution Undertaking Rescission of Judgment Transfer of Property

Case Brief

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Parties

Colin Wayne Silverstone

Applicant

Nurit Silverstone

Applicant

Absa Bank Limited

Respondent

Cynthia Pillay

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict Pending Rescission of Default Judgment

Legal Issues

  1. 1 Whether Absa Bank provided an unequivocal undertaking not to proceed with transfer of the property pending the rescission application.
  2. 2 Whether the undertaking, if given, remained binding after the applicants proceeded with the urgent application.
  3. 3 Whether the transfer of the property to Absa and subsequently to a third party was valid in light of the undertaking and pending rescission application.

Ratio Decidendi

The court found that Absa Bank, through its attorneys, gave an unequivocal and binding undertaking that transfer of the property would not proceed until the rescission application was adjudicated. The correspondence between the parties established the existence and terms of the undertaking, which was not conditional upon withdrawal of the urgent application. Absa's subsequent transfer of the property to itself and its intention to transfer to a third party constituted breaches of the undertaking and prejudiced the applicants' rights. The sale in execution was subject to the outcome of the rescission application, and Absa did not acquire an absolute right to transfer ownership prior to its...

Court Disposition

Application for urgent interdict granted in favour of the applicants.

Orders

  • The First Respondent (Absa Bank) is interdicted from proceeding with the transfer of the property described as Erf [...] Gallor Manor Extension Township, Registration Division I R, Gauteng, held under Deed of Transfer T106672/2004, into the name of the Second Respondent.
  • The determination of the validity of transfer of the property to Absa Bank is suspended pending the final outcome of the application to rescind the default judgment obtained on 11 August 2016.