Standard Bank of South Africa Ltd v Syce and Others (21044/2017) [2021] ZAGPPHC 249 (12 April 2021)
The court found that the respondents were in substantial arrears and had failed to present a valid defence to the application for execution. The applicant complied with the procedural requirements of Rule 46A, including the amendment of the application to address the setting of a reserve price. The reserve price...
Source-derived case information.
- Citation
- [2021] ZAGPPHC 249
- Parties
- Applicant: The Standard Bank of South Africa Ltd; Respondent: Trevor Syce; Respondent: Uline Catherin Wingson; Respondent: City of Tshwane Metropolitan Municipality
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 21044/2017
- Procedural Posture
- Urgent Application / Application for Order Declaring Property Executable and Authorisation of Writ of Execution Under Rule 46 a
- Outcome
- Application granted; property declared executable, writ of execution authorised, reserve price set, and costs awarded to applicant.
- Judges
- L I Vorster
- Legal Topics
- Rule 46a Procedure, Reserve Price Setting, Writ of Execution, Mortgage Arrears
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Standard Bank of South Africa Ltd
Applicant
Trevor Syce
Respondent
Uline Catherin Wingson
Respondent
City of Tshwane Metropolitan Municipality
Respondent
Procedural Posture
Urgent Application / Application for Order Declaring Property Executable and Authorisation of Writ of Execution Under Rule 46 a
Legal Issues
- 1 Whether the applicant is entitled to an order declaring the respondents' property specially executable under Rule 46A.
- 2 Whether a reserve price should be set for the sale of the property.
- 3 Whether the respondents have a valid defence to oppose the execution order.
Ratio Decidendi
The court found that the respondents were in substantial arrears and had failed to present a valid defence to the application for execution. The applicant complied with the procedural requirements of Rule 46A, including the amendment of the application to address the setting of a reserve price. The reserve price proposed by the applicant was calculated by deducting the outstanding municipal rates and taxes from the forced sale value, which the court considered reasonable and practical. Accordingly, the property was declared specially executable, a writ of execution was authorised, and a reserve price was set. The court further ordered that if the reserve price is not achieved at the first...
Court Disposition
Application granted; property declared executable, writ of execution authorised, reserve price set, and costs awarded to applicant.
Orders
- The property known as Erf 1023, Malvern Township, Registration Division IR, Province of Gauteng, measuring 495 square meters, held by Deed of Transfer No. T052899/2004, is declared specially executable.
- The Registrar is authorised to issue a writ of execution in respect of the aforementioned property.
Full Case Text
Judgment text and source record
35 paragraphs
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO. 21044/2017
In the matter between:-
THE STANDARD BANK OF SOUTH AFRICA LTD APPLICANT
REG NO. 1962/000738/06
and
TREVOR SYCE 1ST RESPONDENT
[…]
ULINE CATHERIN WINGSON
2ND RESPONDENT
(in his capacity as duly appointed executor in the
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
3RD RESPONDENT
JUDGMENT
VORSTER, LI AJ:-
1. This is an application in terms of Rule 46A for an order declaring the property of the Respondents executable and the authorization of a writ of execution. The First and Second Respondents oppose the application.
2. Initially the application was launched before the amendment of Rule 46. As a result of the amendment of Rule 46 subsequent to the issuing and service of the application. This necessitated an application for amendment of the application to provide for the additional requirements of Rule 46 relating to inter alia the fixing of a reserve price. The amendment of Rule 46 was something beyond the control of the Applicant and consequently the application for amendment /of the initial notice of motion to include reference to the seeking of the reserve price and to authorise the filing of a supplementary affidavit addressing the relevant facts in respect of the setting of a reserve price is allowed .
3. The Respondents oppose the application. The opposition to the prayers in the application is confined o disputing the indebtedness of the Respondents which led to the Applicant (Plaintiff) issuing a summons, obtaining default judgement and for payment of the amount owing by the Respondent. Consequently there is no valid defence relevant to the question of authorising a writ of execution and the setting of a reserve price, if any.
4. It appears that the Respondents are in arrears with their instalments in the amount of R37 152,51 as at 1 July 2016. At present they are in arrears in the amount of R96 295,35. The property has been valued by a valuator and valued at R900 000,00 and a forced sale value of R650 000,00. However, there is an outstanding municipal account of R617 585,42 in respect of the property which a prospective purchaser will of necessity take into account when a purchase price is fixed. The Applicant contends for a reserve price of R32 414,58. That reserve price is derived at deducting the outstanding rates and taxes from the forced sale value of the property. That appears to me to be reasonable and practical. In the result of the aforegoing, I make the following order:-
a)
An order declaring specially executable the property known as Erf 1023, Malvern Township, Registration Division IR, Province of Gauteng measuring 495 square meters, held by Deed of Transfer No. T052899/2004 ;
b)
An order authorising the Registrar to issue a writ of execution in respect of the aforementioned property;
c)
That the aforesaid property be sold with a reserve price of R32 414 ,58;
(d)
An order in terms of Rule 46A(1) if the reserve price is not achieved in the first sale, the property may the sold to highest bidder in subsequent sale.
(e)
Costs of suit on the scale of attorney and client.
L I VORSTER, AJ
12 April 2021
Counsel: Applicant M Riley