Sheriff of the High Court Johannesburg South v Kalala; In Re: Standard Bank of South Africa Ltd v Nsele and Others (22740/2013) [2015] ZAGPPHC 418 (11 May 2015)

Sheriff of the High Court Johannesburg South v Kalala; In Re: Standard Bank of South Africa Ltd v Nsele and Others (22740/2013) [2015] ZAGPPHC 418 (11 May 2015)

The respondent breached the conditions of sale by failing to provide guarantees for the balance of the purchase price within the stipulated period. The conditions of sale and rule 46(11)(b) do not permit forfeiture of the deposit, but allow for retention pending quantification of losses. The respondent's opposition was procedurally defective and substantively lacking. The sale in execution is cancelled, the property may be resold, and the deposit is to be retained in trust until losses are determined and judgment is granted. The respondent is liable for the costs of the application due to her opposition and procedural conduct.

Citation
[2015] ZAGPPHC 418
Parties
Applicant: Sheriff of the High Court Johannesburg South; Respondent: Motsoana Yvonne Kalala; Plaintiff: Standard Bank of South Africa Ltd; Defendant: Celokuhle Phunelele Fortunate Nsele; Defendant: Xolile Portia Nsele; Defendant: Joyce Thandi Mhoni
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 May 2015
Case Number
22740/2013
Procedural Posture
Civil Application / Application for Cancellation of Sale in Execution and Related Relief Under Rule 46(11)
Outcome
Application granted; sale in execution cancelled; deposit retained pending quantification of loss; costs awarded against respondent.
Judges
Avvakoumides
Legal Topics
Sale in Execution, Rule 46 Application, Forfeiture of Deposit, Breach of Conditions, Quantification of Loss
Civil Procedure Land and Property Sale in Execution Rule 46 Application Forfeiture of Deposit Breach of Conditions Quantification of Loss

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Parties

Sheriff of the High Court Johannesburg South

Applicant

Motsoana Yvonne Kalala

Respondent

Standard Bank of South Africa Ltd

Plaintiff

Celokuhle Phunelele Fortunate Nsele

Defendant

Xolile Portia Nsele

Defendant

Joyce Thandi Mhoni

Defendant

Procedural Posture

Civil Application / Application for Cancellation of Sale in Execution and Related Relief Under Rule 46(11)

Legal Issues

  1. 1 Whether the sale in execution should be cancelled due to the purchaser's breach of conditions of sale.
  2. 2 Whether the sheriff is entitled to retain the deposit paid by the purchaser pending quantification of losses.
  3. 3 Whether the respondent is liable for the costs of the application.

Ratio Decidendi

The respondent breached the conditions of sale by failing to provide guarantees for the balance of the purchase price within the stipulated period. The conditions of sale and rule 46(11)(b) do not permit forfeiture of the deposit, but allow for retention pending quantification of losses. The respondent's opposition was procedurally defective and substantively lacking. The sale in execution is cancelled, the property may be resold, and the deposit is to be retained in trust until losses are determined and judgment is granted. The respondent is liable for the costs of the application due to her opposition and procedural conduct.

Court Disposition

Application granted; sale in execution cancelled; deposit retained pending quantification of loss; costs awarded against respondent.

Orders

  • The sale in execution on 18 February 2014 of the immovable property described is cancelled.
  • The property may again be put up for sale in execution in accordance with clause 10 of the conditions of sale.