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South Africa: North Gauteng High Court, Pretoria
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[2021] ZAGPPHC 264
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Firstrand Bank Ltd v Moxhosaba and Another (2018/10826) [2021] ZAGPPHC 264 (13 April 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO. 2018/10826
In the matter between:-
FIRSTRAND BANK
LTD
APPLICANT
and
MOXHOSABA
:
LUMKILE SIMON
1
ST
RESPONDENT
Identity
number […]
MOXHOSANA
:
NOZIQI
ESTHER
2
ND
RESPONDENT
Identity
number […]
In
re:
FIRSTRAND
BANK LTD
EXECUTION CREDITOR
and
MOXHOSABA
:
LUMKILE SIMON
1
ST
EXECUTION DEBTOR
Identity
number […]
MOXHOSANA
:
NOZIQI
ESTHER
2
ND
EXECUTION
DEBTOR
Identity
number […]
JUDGMENT
VORSTER, LI AJ:-
1.
This is an application for declaring immovable property attached in
terms of an order of Court executable in
terms of Rule 46A. The
Respondents oppose the application.
2.
After the Respondents have filed an opposing affidavit the Applicant
filed a lengthy replying affidavit which
sets out the background and
history to this case in some detail. It appears that since 2013 the
Respondents fell in arrears with
their instalments payable to the
Applicant in respect of a home loan granted to them and which they
used to purchase the property
which is the subject of this
application. It is neither necessary, nor feasible to deal in detail
with the history which ultimately
culminated in a default judgment
granted to the Applicant for payment of the amounts owing in terms of
the agreement. I have no
doubt that a writ of execution should be
issued in respect of the immovable property hypothecated by the bond
as it appears that
a writ of execution against movable property had
already been issued and proceeded with. The amounts represented by
the goods attached
falls substantially short of the amounts needed.
The Applicant, after having dealt with the relevant facts in this
respect, suggests
a reserve price of R386 932,95. I agree with that
reserve price.
3.
It follows that the Applicant is entitled to succeed with its
application in terms of Rule 46(A) and I make
the following order:-
1.
Declaring the
immovable property known as:
Erf […] […]
TOWNSHIP , REGISTRATION DIVISION I.Q., THE PROVINCE OF GAUTENG,
MEASURING 316 SQUARE METERS AND HELD BY
DEED OF TRANSFER NO. […]
SUBJECT TO THE CONDITIONS THEREIN CONTAINED AND ESPECIALLY TO THE
RESERVATION OF RIGHTS TO MINERALS
to be specially executable and to
this end, that
a
Writ
of Execution be issued as envisages in terms of Rule 46(1)(a) of the
Uniform Rules of Court.
2.
An order in
terms of Rule 46A(8)(i), that in the event that
a
reserve
price is said in terms of Rule 46A(8)(e) at R386 932,95, and if this
reserve price is not achieved at the first sale in
execution, then
and in that event, the immovable property described may be sold at
any subsequent sale in execution to the highest
bidder without
a
reserve price.
3.
Costs of suit
on the scale as between attorney and client.”
LIVorster
AJ
13
April2021
Counsel:
Appl D . Strydom