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Agliotti N.O. and Others v Nedbank Limited and Another (2014/02868) [2022] ZAGPJHC 27 (14 January 2022)
High Court costs ruling on a sale in execution dispute: the court held that the execution creditor’s conduct was not vexatious and declined punitive costs.
Mzimela v Absa Bank Limited and Others (6960/2016) [2016] ZAKZDHC 27 (10 August 2016)
The court held that the sale-in-execution advertisement complied with rule 46(7)(b) despite not listing every feature of the property, and dismissed the application with costs.
Louw v Firstrand Bank Limited and Others (10122/2013) [2013] ZAWCHC 204 (5 November 2013)
The court found that although there was non-compliance with Rule 46(3) because the sheriff did not serve the notice of attachment on the applicant personally, the applicant had actual knowledge of both the attachment and the impending sale on two prior occasions, as evidenced by his actions to pay arrears and prevent earlier sales. The purpose of Rule 46(3) was fulfilled in substance, as the applicant was aware of the process and was not prejudiced by the lack of formal service. The court applied the principle from Todd v FirstRand Bank & Others, holding that non-compliance with a procedural…
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Groenewald Dreyer v Registrar of Deeds, Pretoria and Others (50537/2012) [2013] ZAGPPHC 116 (16 May 2013)
The court found that the sale in execution was conducted in full compliance with Rule 46(3) and Rule 46(7)(b), with proper service of notices and adequate description of the property. The subsequent sequestration of Marais did not affect the validity of the sale or transfer, as neither the applicant nor the sheriff was aware of the insolvency at the time of sale and transfer. Section 5(1) of the Insolvency Act was applicable, permitting transfer where the sale preceded notice of surrender. The court rejected the fourth respondent's speculative arguments regarding the sale price and marketing,…
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Weiss Combrink Legal Services CC v Standard Bank of South Africa Ltd and Others (176/2010) [2011] ZANWHC 89 (27 May 2011)
The Court found that the Sheriff failed to comply with the peremptory requirements of Rule 46(3) by not serving the notice of attachment by registered letter to the applicant's postal address, which was clearly stated in the warrant of execution. The Court held that substantial compliance is only acceptable where no postal address exists, and in this case, the Sheriff did not attempt service at the postal address. The sale in execution and all subsequent transactions were declared null and void, and the status quo ante was ordered to be restored, including re-registration of the property in t…
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Mashiya v Standard Bank of South Africa and Others (4818//2008) [2008] ZAFSHC 91 (11 September 2008)
The court held that the requirements of Rule 46 regarding the description and address of the property are intended to ensure that the sheriff and prospective buyers can identify the property. In this case, the property was properly identified and attached, and the applicant did not provide the correct address or demonstrate that the address discrepancy led to the wrong property being attached. The applicant received personal service of the summons and notice of attachment, and there was no evidence of prejudice resulting from the address issue. The court found that strict compliance with Rule…
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Drummond Farms (Pty) Ltd v Bekker and Others (2047/07) [2008] ZAECHC 99 (21 June 2008)
The court held that failure to serve a rule 46(3) notice of attachment by registered post rendered the attachment and sale in execution null and void.
Hopkins Boerdery (Edms) Bpk v Colyn and Another (A766/04) [2005] ZAWCHC 29; [2006] 1 All SA 497 (C) (20 April 2005)
The court held that the description of the property in the sale notice, though brief, was sufficient for agricultural land under Rule 46(7)(b), and that any non-compliance was immaterial or condonable. The delay of over six months in bringing the application to set aside the sale was found to be grossly unreasonable and not adequately explained; the respondents' emotional trauma and lack of funds did not justify the delay. The appellant suffered substantial prejudice due to investments made in the property during this period. The respondents, by their conduct and silence, created the impressi…
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Firstrand Bank Limited v Ramokgadi and Others (296/02) [2003] ZANWHC 60 (10 October 2003)
The court found that the sale in execution was invalid due to non-compliance with the mandatory requirements of Rule 46 of the Uniform Rules of Court. The advertisement of the sale in the Government Gazette did not occur within the prescribed two-week period, and the applicant, as a preferent creditor and mortgagee, was not given the required notices. The respondent's explanation for non-compliance was insufficient, and condonation was refused. The court held that the procedural defects were fatal to the validity of the sale, and the applicant's interests were prejudiced as the sale price did…
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