Standard Bank of South Africa Ltd v Ndlovu and Another, In re: van der Merwe v Kibel, In re: Kibel v Standard Bank of South Africa Ltd and Another (2010/33229) [2012] ZAGPJHC 46 (28 March 2012)

Standard Bank of South Africa Ltd v Ndlovu and Another, In re: van der Merwe v Kibel, In re: Kibel v Standard Bank of South Africa Ltd and Another (2010/33229) [2012] ZAGPJHC 46 (28 March 2012)

The court held that the applicant was in clear breach of the sale agreement by failing to provide guarantees within the stipulated period. Proper notice under Rule 46(11) was given to the applicant at his domicilium, and no opposition was registered prior to cancellation. The cancellation of the sale in execution is...

Source-derived case information.

Citation
[2012] ZAGPJHC 46
Parties
Plaintiff: Standard Bank of South Africa Limited; Defendant: Arthur Ndlovu; Defendant: Nomsa Patience Mngadi; Applicant: Willem Carel van der Merwe – Sheriff, Johannesburg South; Respondent: Brad Kibel; Applicant: Brad Kibel
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 March 2012
Case Number
2010/33229
Procedural Posture
Urgent Application / Application for Rescission of Cancellation of Sale in Execution Under Rule 46(11)
Outcome
Application dismissed; no order as to costs.
Judges
Sutherland
Legal Topics
Sale in Execution, Rescission of Judgment, Rule 46 11, Contractual Breach, Notice Requirements
Civil Procedure Land and Property Sale in Execution Rescission of Judgment Rule 46 11 Contractual Breach Notice Requirements

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Parties

Standard Bank of South Africa Limited

Plaintiff

Arthur Ndlovu

Defendant

Nomsa Patience Mngadi

Defendant

Willem Carel van der Merwe – Sheriff, Johannesburg South

Applicant

Brad Kibel

Respondent

Brad Kibel

Applicant

Procedural Posture

Urgent Application / Application for Rescission of Cancellation of Sale in Execution Under Rule 46(11)

Legal Issues

  1. 1 Whether a cancellation of a sale in execution under Rule 46(11) is susceptible to rescission under Rule 42(1)(a).
  2. 2 Whether the applicant was given proper notice as required by Rule 46(11).
  3. 3 Whether the applicant was in breach of the sale agreement by failing to provide guarantees within the stipulated period.

Ratio Decidendi

The court held that the applicant was in clear breach of the sale agreement by failing to provide guarantees within the stipulated period. Proper notice under Rule 46(11) was given to the applicant at his domicilium, and no opposition was registered prior to cancellation. The cancellation of the sale in execution is not a judgment susceptible to rescission under Rule 42(1)(a), but rather a sui generis judicial act providing oversight to the execution process. The applicant's subsequent offer to perform could not revive the cancelled sale. Alleged procedural irregularities and claims of being misled were unsupported by evidence and did not affect the lawfulness of the cancellation. The...

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application for rescission is dismissed.
  • There is no order as to costs.