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[2011] ZAGPPHC 9
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In re: Sheriff of the High Court Halfway House v Hope, Nedbank Limited v Trustees for the time being of Triple 7 Trading (23845/2007) [2011] ZAGPPHC 9 (26 January 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO.: 23845/2007
DATE:
26/01/2011
In
the matter between:
RE:
SHERIFF
OF THE HIGH COURT
HALFWAY
HOUSE
.......................................................................................
APPLICANT
And
SARAH
HOPE IN HER CAPACITY AS EXECUTRIX
FOR
THE ESTATE OF JUSTIN
HOPE
...................................................
RESPONDENT
In
the matter between
NEDBANK
LIMITED
...................................................................................
PLAINTIFF
And
TRUSTEES
FOR THE TIME BEING OF TRIPLE 7 TRADING
…......
DEFENDANT
JUDGMENT
WEBSTER
J
1.
This
is an application brought in chambers for an order declaring a sale
in execution concluded on 9 February, 2010 in terms of
which the
applicant sold immovable property known as Section 52, Carlswald
View, Noordwyk Extension 65 Township to the respondent
to be invalid
and to be cancelled and set aside.
2.
From
an affidavit by a candidate Attorney, Salome Jansen van Vuuren, in
the plaintiff's Attorneys' employ the application was lodged
with the
Registrar on 29 October, 2010. On 22 November, 2010, she discovered
upon examining the court file that "...the court
file seem to
have been misplaced../'.
Despite
a diligent search the "...court file could not be found".
She
then annexed "...copies of all the pleadings in this matter"
declaring
that they were true copies of the original documents.
3.
The
application served before my Brother Msimeki J on 25 November, 2010.
He declined to grant the order of cancellation as "...there
is
no proof of service of the application on the purchaser in terms of
the conditions of sale". This is clearly so from the
documents
annexed to the affidavit of Salome Jansen van Vuuren referred to
above.
4.
There
is currently another bundle similar to that referred to above. It is,
to all intents and purposes, the original set of the
papers. The only
difference is the date stamps appearing on the first page of each
bundle. Annexed to the "new bundle"
is a return of service
dated 19 August, 2010. It appears to be the original return of
service and bears a signature of the Deputy
Sheriff.
5.
According
to the return of service referred to in the preceding paragraph the
"Notice of Motion, Applicant's report in terms
of Rule 46(11) of
the High Court rules and annexure thereto was (sic) served upon MR N
MOGENTALE during the respondent's temporary
absence on 19 August,
2010 at 07h25 at 52, 13
th
Street, Orange Grove". The return of service appears to be
valid.
6.
It
is clear that the order by my Brother Msimeki J was based on the
bundle that did not have the return of service. That is no longer
the
position. In my view the applicant has made out a proper case and is
entitled to the relief he seeks.
7.
The following order is accordingly granted:
IT
IS ORDERED:
1.
THAT
the sale in execution which was held on the 9
th
of February 2010 in respect of the immovable property known as
SECTION 52, CARLSWALD VIEW, NOORDWYK EXTENTION 65 TOWNSHIP, be and
is
hereby cancelled.
2.
THAT
the Respondent pays the costs of this application.
G
WEBSTER
JUDGE
IN THE HIGH COURT