Williams and Another v Standard Bank of South Africa Ltd and Another (18088/2015) [2018] ZAWCHC 193; 2022 (6) SA 629 (WCC) (3 May 2018)

Williams and Another v Standard Bank of South Africa Ltd and Another (18088/2015) [2018] ZAWCHC 193; 2022 (6) SA 629 (WCC) (3 May 2018)

Rule 46A is not purely procedural in nature. Applying it retroactively to execution proceedings initiated before its commencement would impair the execution creditor's rights by imposing new duties and undoing procedural steps already taken. The bank had a vested right to execute against the property under the previous rules, and requiring compliance with Rule 46A would nullify those steps and impose additional burdens. There is no indication in the amending notice that Rule 46A was intended to apply retrospectively. The presumption against retrospectivity and interference with existing rights has not been rebutted. Therefore, Rule 46A does not apply to execution proceedings commenced and...

Citation
[2018] ZAWCHC 193
Parties
Applicant: Charles Williams; Applicant: Rosetta Adele Williams; Respondent: The Standard Bank of South Africa Ltd; Respondent: Sheriff of the High Court, Kuilsriver North
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
3 May 2018
Case Number
18088/2015
Procedural Posture
Urgent Application / Application for Urgent Interdict and Declaratory Relief
Outcome
Application dismissed. Declaratory relief granted in favour of the bank. Costs awarded against the applicants.
Judges
DM Davis
Legal Topics
Sale in Execution, Retrospective Application of Rules, Reserve Price, Rule 46a, Vested Rights
Civil Procedure Land and Property Sale in Execution Retrospective Application of Rules Reserve Price Rule 46a Vested Rights

Case Brief

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Parties

Charles Williams

Applicant

Rosetta Adele Williams

Applicant

The Standard Bank of South Africa Ltd

Respondent

Sheriff of the High Court, Kuilsriver North

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict and Declaratory Relief

Legal Issues

  1. 1 Does Rule 46A of the Uniform Rules of Court apply retrospectively to execution proceedings initiated before its commencement?
  2. 2 Would applying Rule 46A impair vested rights or impose new obligations on the execution creditor in pending matters?
  3. 3 Did the execution creditor initiate execution proceedings prior to Rule 46A coming into effect?

Ratio Decidendi

Rule 46A is not purely procedural in nature. Applying it retroactively to execution proceedings initiated before its commencement would impair the execution creditor's rights by imposing new duties and undoing procedural steps already taken. The bank had a vested right to execute against the property under the previous rules, and requiring compliance with Rule 46A would nullify those steps and impose additional burdens. There is no indication in the amending notice that Rule 46A was intended to apply retrospectively. The presumption against retrospectivity and interference with existing rights has not been rebutted. Therefore, Rule 46A does not apply to execution proceedings commenced and...

Court Disposition

Application dismissed. Declaratory relief granted in favour of the bank. Costs awarded against the applicants.

Orders

  • It is declared that the amended Rule 46 and new Rule 46A do not apply to the execution proceedings initiated by the first respondent under the order granted on 22 May 2017 and the writ of execution issued on 6 November 2017.
  • The first and second respondents are authorised to proceed with the sale in execution of the property in terms of the notice of sale dated 5 February 2018 and the conditions of sale delivered on 28 February 2018.