Todd v First Rand Bank Ltd and Others (497/12) [2013] ZASCA 61; [2013] 3 All SA 500 (SCA) (24 May 2013)

Todd v First Rand Bank Ltd and Others (497/12) [2013] ZASCA 61; [2013] 3 All SA 500 (SCA) (24 May 2013)

The Supreme Court of Appeal held that the failure to affix the sale notice at or near the property, as required by rule 46(7)(e), did not go to the root of the matter and did not invalidate the sale in execution. The court found that all other advertising requirements were met, the property had been extensively marketed, and there was no evidence of prejudice to the judgment debtor. The common law does not require strict compliance with every procedural formality; rather, non-compliance will only vitiate a sale if it defeats the purpose of the rule or causes prejudice. The constitutional arguments raised by Todd were not substantiated and did not warrant development of the common law. The...

Citation
[2013] ZASCA 61
Parties
Appellant: Elizora Olivier Todd; Respondent: First Rand Bank Ltd; Respondent: The Sheriff of the High Court, Malmesbury; Respondent: Frederick Jacobus van Zyl; Respondent: Timothy Oliver Price; Respondent: Daniel Pierre Fourie; Respondent: Ms Joan Booysen; Respondent: Standard Bank of South Africa Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 May 2013
Case Number
497/12
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court, Cape Town
Outcome
Appeal dismissed with costs.
Judges
Lewis, Ponnan, Willis
Legal Topics
Sale in Execution, Rule 46 Uniform Rules, Strict Vs Substantial Compliance, Prejudice to Judgment Debtor, Constitutional Property Rights
Civil Procedure Land and Property Sale in Execution Rule 46 Uniform Rules Strict Vs Substantial Compliance Prejudice to Judgment Debtor Constitutional Property Rights

Case Brief

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Parties

Elizora Olivier Todd

Appellant

First Rand Bank Ltd

Respondent

The Sheriff of the High Court, Malmesbury

Respondent

Frederick Jacobus van Zyl

Respondent

Timothy Oliver Price

Respondent

Daniel Pierre Fourie

Respondent

Ms Joan Booysen

Respondent

Standard Bank of South Africa Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court, Cape Town

Legal Issues

  1. 1 Whether non-compliance with rule 46(7)(e) of the Uniform Rules of Court vitiates a sale in execution.
  2. 2 Whether the common law requires strict compliance with all formalities for a valid sale in execution.
  3. 3 Whether the common law should be developed to require strict compliance with rule 46 to promote constitutional rights.

Ratio Decidendi

The Supreme Court of Appeal held that the failure to affix the sale notice at or near the property, as required by rule 46(7)(e), did not go to the root of the matter and did not invalidate the sale in execution. The court found that all other advertising requirements were met, the property had been extensively marketed, and there was no evidence of prejudice to the judgment debtor. The common law does not require strict compliance with every procedural formality; rather, non-compliance will only vitiate a sale if it defeats the purpose of the rule or causes prejudice. The constitutional arguments raised by Todd were not substantiated and did not warrant development of the common law. The...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.