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[2021] ZAGPPHC 328
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ABSA Bank Limited v L.G.C and Another (4631/2011) [2021] ZAGPPHC 328 (27 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 4631/2011
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:27/5/2021
In
the matter between
ABSA
BANK
LIMITED
Applicant
And
L
G
C[…]
1
st
Respondent
S
M
C[…]
Occupant
/ 2
nd
Respondent
JUDGEMENT
BARNARDT
AJ
1.
This is an application to declare the immovable property, Erf […]
G[…],
Unit […], Township, Registration Division J.R.
Province of North West (the property), executable in terms of Rule
46A of
the Uniform Rules of Court. The application is opposed
by the occupant / 2
nd
respondent (second respondent) on the basis that she is the owner of
the property and that the first respondent, without her consent
or
knowledge, mortgaged the property.
2.
Although the first respondent did not oppose the application, he
attended the
hearing in person.
3.
Cognisance needs to be taken of the fact that I did not only consider
the affidavits
with annexures filed in this application, but all
affidavits, pleadings and documents filed on Caselines.
BACKGROUND
4.
The property, according to the second respondent was purchased by the
respondents,
who was at that stage married in community of property,
on 10 May 2001 from the Department of Local Government and Housing
for
R2 475, 00.
5.
The respondents were divorced on 17 June 2005 in the Central Divorce
Court, Odi
and according to the decree of divorce, the joint estate
was divided. The respondents entered into settlement agreement
on
15 August 2005, being almost two months after the decree of
divorce was granted. The first respondent was the plaintiff,
and the second respondent was the defendant. The important paragraphs
of this agreement read as follows:
“
4.
IMMOVABLE PROPERTY
The parties own between
themselves as Immovable property known as site […] Zone […]
situated at G[…].
The parties agree that the said
property will be retained and be registered in the names of the
Defendant who shall then be responsible
for all debts in respect of
such property.
The
Defendant will pay the Plaintiff an amount of R20 000, 00 as his half
share of the said property within a month after the divorce.”
And
“
12
ORDER OF COURT
Notwithstanding
anything to the contrary herein contained this agreement is subject
and conditional upon it been made an Order of
this
Honourable
Court.”
6.
The settlement agreement was never made an order of court and the
parties never
arranged for the property to be registered into the
name of the second respondent. According to the second respondent she
did not
have funds to effect transfer of the property into her name
by the Registrar of Deeds because she was unemployed at the time.
7.
She indicated that she borrowed the money from her employer to pay
the first
respondent the amount of R20 000, 00 in terms of the
settlement. From the “Moriting Employee Benefits”
document provided
as proof of this loan, it is evident that she
borrowed R30 653, 00 as a Housing loan guarantee with no explanation
about what she
did with the remaining R10 600, 00. According to the
document the second respondent was dismissed with date of exit 30
November
2005, whilst the settlement agreement was entered into in
August 2005.
8.
The respondents remarried on 22 March 2007 and this time, concluded
an antenuptial
contract, with their marriage regime to be out of
community of property. This contract was properly registered through
the assistance
of Gerneke & Potgieter Attorneys. According to the
second respondent this was done because she was the owner of the
house and
did not want the first respondent to have any claim
thereto, but it is unclear why she did not ask the attorneys
responsible for
the registration of the antenuptial contract to
assist with the registration of the property into her name. The
antenuptial contract
was signed on 23 January 2007 and on 28 February
2007, Mr. Gerneke, the same notary, assisted the first respondent to
have a bond
registered in
favour
of
ABSA Bank (the applicant) in the amount of R180 000, 00 over the
property, which she wanted to protect against the first respondent.
The bond was eventually registered on 8 February 2008.
9.
Apart from the Deed of Grant […], done and signed on 29
November 2007
and registered on 8 February 2008 by the Department of
Local Government and Housing, North West, showing that the property
to be
registered in the name of the first respondent only, no other
deed of registration was provided. It is noted that according to this
document the property was purchased on 10 May 1990 by the first
respondent for R9 975, 00.
10.
As indicated above, the bond in
favour
of the
applicant was registered on 8 February 2008 against the property and
the first respondent failed to make payment of all amounts
due to the
applicant. As agreed between the applicant and the first respondent
the full amount outstanding, being R184 231, 98
on 25 November 2010,
became due, owing and payable.
11.
Summons was issued against the first respondent and due to no
appearance to defend, default
judgment was granted on 11 March 2011.
On 8 June 2011 the first respondent made a new arrangement to pay R2
000, 00 per month with
the applicant, but he failed to make payments
in accordance with the agreement.
12.
On 15 December 2011, an application by the applicant in terms of Rule
46(1)(a)(ii) to declare
the immovable property executable was granted
and on 31 January 2012 a warrant of execution in respect of the
property was issued
and executed by the Sheriff. The property was to
be sold in execution on 13 June.
13.
On 7 June 2012 the second respondent served the applicant’s
attorneys of record with
an urgent application to be enrolled for 12
June 2012 to stop the sale in execution. A notice of intention
to oppose was
filed, but the application was not on the roll of 12
June 2012 and the sale in execution proceeded on 13 June 2012.
14.
The second respondent brought a rescission application which was
granted on 22 April 2013.
In terms of the order, the second
respondent was inter alia granted leave to be joined as a defendant
in the main action. Only
the second respondent filed a plea in answer
to the applicant’s declaration and the applicant proceeded with
default judgment
against the first respondent, which was granted on 3
April 2014.
15.
The matter was enrolled on the trial roll on 11 March 2016, but the
second respondent’s
attorneys of record withdrew before the
trial date and she appeared in person and the trial was postponed to
13 February 2017.
On 13 February 2017, the trial matter was postponed
sine
die
to enable the second respondent to bring an application for “the
enforcement of any and all rights she might want to enforce
regarding
the ownership of the immovable property”.
16.
The second respondent’s application for a declaratory order,
which was filed on 8
March 2017 was opposed and the applicant also
filed a Rule 30 notice. According to the applicant’s founding
affidavit, this
application was withdrawn.
17.
The main action was enrolled for trial on 29 November 2018 but was
removed from the roll
by agreement between the parties on the basis
that the applicant will pursue an application for an order in terms
of Rule 46(1)(a)
and the second respondent will have an opportunity
to vindicate her rights.
18.
The application
in
casu
was served on the second respondent on 16 October 2019 and the second
respondent filed her answering affidavit on 13 December 2019.
19.
The second respondent did not bring a counter application, but
requested as follows in paragraph
10 of her answering affidavit:
“
I
will also humbly request the Honourable Court to declare that I am,
and have been, the sole owner of the property since 15 August
2005,
being the date on which the settlement in terms whereof the property
was to be transferred into my name was entered into.
It is
furthermore clear from the facts set out
supra
that the bond was registered without my consent, which was required
due to the fact that I was the beneficial owner. I will
therefore request that the bond registered over the property be
cancelled.”
20.
It is undisputed that the arrears on the bond account were, according
to the Certificate
of Balance dated 28 February 2019, R403 826, 11
and according to the founding affidavit, no payments were made since
2015.
OWNERSHIP
OF IMMOVABLE PROPERTY
21
Section 16
of the
Deeds Registries Act, 47 of 1937
reads as follows:
“
16
How real rights shall be transferred
Save
as otherwise provided in this Act or in any other law the ownership
of land may be conveyed from one person to another only
by means of a
deed of transfer executed or attested by the registrar, and other
real rights in land may be conveyed from one person
to another only
by means of a deed of cession attested by a notary public and
registered by the registrar….”
22.
As was stated in
Fischer
v Ubomi Ushishi Trading CC and Others
[1]
“
[16]
Section
16
of
the
Deeds
Registries Act confirms
the
principle that transfer of immovable property must take place before
the court of the place where the land is situated (
traditio
coram judice loci rei sitae
).
This principle ‘still forms the backbone of the current system
of transfer of immovable property in South Africa’.
Section
16
further
provides that other real rights in land may be conveyed from one
person to another only by means of a deed of cession attested
by a
notary public and registered by the registrar of deeds.
Section
16
is
‘the main mechanism of ensuring sufficient publicity in the
context of land title’.
[17]
Section
16
of
the
Deeds
Registries Act thus
provides
that as a general rule, real rights in land can be transferred only
by registration in the deeds office. Its central role
in the
registration system has been described as follows:
‘
Section
16
of
the
Deeds
Registries Act constitutes
the
core of the registration system, and embodies a principle of deeds
registration, which has been confirmed on numerous occasions
by the
courts. It comprises two parts. On the one hand, it provides for the
derivative acquisition of ownership in immovable property
by means of
execution of a deed of transport in the presence of the registrar,
and attestation of the deed by the registrar, except
in cases
expressly excluded. On the other hand, it provides that the rights to
immovable property other than ownership may only
be transferred by
way of a notarial deed, registered by the registrar, except in the
cases expressly excluded. Hence,
section
16
of
the
Deeds
Registries Act deals
with
the transfer of ownership of immovables by one person to another.
Simultaneously it gives effect to the acquisition of ownership
in
derivative form. The moment at which the registrar attests the deed
is regarded as the moment of registration. This is the point
at which
the transfer of ownership from one person to another is given effect.
Owners are substituted: the transferor is relieved
of his or her
rights and responsibilities to the land, and the ownership of that
land now lies with the transferee.’
23.
The Supreme Court of Appeal went further and discussed the
acquisition of ownership in land
through derivation
[2]
.
“
[18]
Thus, on first principles and a proper construction of
s
16
of
the
Deeds
Registries Act, derivative
acquisition of ownership in land
requires registration. Mrs Haynes’ acquisition of Mr
Haynes’ interest in the
property was derivative: it arose from
the settlement agreement which gave Mrs Haynes a personal right to
enforce registration
of Mr Haynes’ undivided half share in the
property. That agreement, though binding on the contracting parties,
did not by
itself vest ownership of Mr Haynes’ half share in
the property in Mrs Haynes, any more than a contract of sale of land
passes
ownership to the buyer. It follows that
Middleton
was
correctly decided.
http://www.saflii.org/za/cases/ZASCA/2018/154.html
- _ftn17
The
vesting of ownership of the property in Mrs Haynes required an act of
transfer by way of an endorsement on the title deed
of the property
in terms of
s
45
bis
(1)
(a)
of
the
Deeds
Registries Act. It
provides:
‘
If
immovable property or a lease under any law relating to land
settlement or a bond is registered in the deeds registry and it
–
(a)
formed
an asset in a joint estate of spouses who have been divorced, and one
of them has lawfully acquired the share of his or her
former spouse
in the property, lease or bond;
(b)
…
the registrar
may on written application by the spouse concerned and accompanied by
such documents as the registrar deems necessary,
endorse on the title
deeds of the property, or on the lease or the bond that such spouse
is entitled to deal with such property,
lease or bond, and thereupon
such spouse shall be entitled to deal therewith as if he or she had
taken formal transfer or cession
into his or her name of the share of
the former spouse or his or her spouse, as the case may be, in the
property, lease or bond.’
[19] That
derivative acquisition of ownership in land requires registration,
has been the position at common law for more than a
century.
In
Lucas’ Trustee
Innes CJ put it this way:
‘
.
. . the general rule of our law is that real rights in land can only
be validly constituted by registration
coram
lege loci
.
There are well recognised exceptions to that rule, such as, for
instance, acquisition of ownership to land by prescription, or
of an
interest in land by marriage in community of property, and so on. But
none of those exceptions apply in the present case.
Hence the general
rule governs, and the real right which is sought to be established
is, it appears to me, in the same position
as a right of ownership or
right of mortgage or a claim to some portion of the
dominium
cut
off and separated from it so as to create a servitude. In such cases
the right can only be validly constituted by registration.’
[20]
Further,
s
16
of
the
Deeds
Registries Act, on
its
plain wording, contemplates the transfer of ownership of land from
one person to another. As this court has said, it is concerned
with
the transfer of real rights in land. It seems to us that in
enacting the savings provision, namely, ‘Save as otherwise
provided in this Act or in any other law’, the legislature
contemplated a law dealing with the transfer of real rights in
land.
The Divorce
Act is
not
such a law. Section
7(1)
of
that Act does no more than authorise a court to make an order
regarding the
division
of
the assets of the parties: it says nothing about the transfer of real
rights in land. By contrast, endorsements in terms
of ss
45
bis
(1)
(a)
and
45
bis
(1A)
of the
Deeds
Registries Act fall
within
the savings provision in
s
16.
So
too, the transfer of rights in terms of a bond by endorsement, as
provided in
s 40(1)
(b)
of
the
Administration
of Estates Act 66 of 1965
.”
24.
The Supreme Court of Appeals also concluded that both
Corporate
Liquidators (Pty) Ltd & another v Wigill & others
[3]
and
Salie
v Bales NO & others
[4]
were incorrectly decided.
“
[21]
This brings us to
Corporate
Liquidators
,
a decision of a full
court.
http://www.saflii.org/za/cases/ZASCA/2018/154.html
- _ftn21
The
facts can be briefly stated. Mr and Mrs Wiggill were married in
community of property. They had two properties: Portion
13 of the
farm G[…] (G[…]) and Erf […], L T[…] (Erf
[…]). In anticipation of their divorce they
concluded a
settlement agreement in which they agreed that G[…] would be
sold and the purchase price used to pay an outstanding
mortgage bond
over Erf […] (registered in Mr Wiggill’s name). Erf […]
would then be subdivided. Mrs Wiggill
would become the registered
owner of the unencumbered Portion 1 of Erf […] and Mr Wiggill,
of the remaining extent. A usufruct
would be registered over the
remaining extent in favour of Mrs Wiggill’s parents.
[22] The
marriage was dissolved in March 1998 and the settlement agreement
made an order of court. G[…] was sold and the
bond on Erf […]
paid. However, Erf […] was not subdivided and portion 1
thereof was not transferred to Mrs Wiggill.
In the interim Mr Wiggill
married the second Mrs Wiggill in community of property. In February
2002 Mrs Wiggill applied for an
order committing Mr Wiggill for
contempt of court for failure to comply with the court order. She
alleged that he had paid the
outstanding amount on the bond on Erf
[..], but had failed to cancel it in accordance with their agreement,
and that he had borrowed
further monies under cover of the bond. Mrs
Wiggill asked for an order that Erf […] be subdivided and that
portion 1 thereof
be transferred to her; and that the remaining
extent be transferred to the insolvent estate of Mr Wiggill and the
second Mrs Wiggill,
whose estate was surrendered in March 2002. The
trustee of the insolvent estate sold Erf […] at a public
auction free of
any encumbrance.
[23] However,
ownership of Erf […] had not yet been transferred. It was
still registered in the name of Mr Wiggill. The trustee
argued that
upon dissolution of the marriage Mrs Wiggill obtained only a personal
right against Mr Wiggill to give effect to the
settlement agreement;
and that she had no real right in respect of Erf […] because
Mr Wiggill’s second joint estate
was sequestrated before
transfer of the property into her name. Likewise, Mrs Wiggill’s
parents only acquired a personal
right to have the real right of
usufruct registered in their favour.
[24]
The court of first instance reasoned that one of the natural
consequences of a marriage in community of property was that both
spouses immediately became co-owners of their previously separate
estates, which became the joint estate, regardless of in whose
name
the assets were held. On dissolution of the marriage the reverse
followed automatically. Therefore, so it held, on divorce
Mrs
Wiggill’s share vested in her and registration of her portion
in her name was a mere formality.
[25]
Hartzenberg J endorsed this view and stated that the court below was
‘quite correct to equate the process of subdivision
with the
transfer of the properties into the names of the parties’, and
that those steps were mere formalities to give effect
to their
intention. The learned judge said that in a case where parties
enter into a settlement agreement regarding the division
of their
assets which is made an order of court in terms of
s
7
of
the Divorce
Act, the
division
of the joint estate would be regulated by that agreement and the
parties would be bound by it. He cited an example of spouses
married
in community of property who owned two fixed properties and agreed
that each would receive one property, and concluded
that ownership of
the respective properties would vest in the parties immediately once
the settlement agreement was made an order
of court. This,
Hartzenberg J said, accords with the common law as expounded
in
Rosenberg
. Registration
of transfer of the properties in the names of the respective spouses
was not a prerequisite for ownership to
vest in them, since our
system of deeds registration was a negative one, which did not
necessarily reflect the true state of affairs. The
court
concluded that Mrs Wiggill was the owner of an unencumbered Portion 1
and was entitled to the cancellation of the bond over
it and transfer
of the property into her name.
[26] The court,
however, erred. To begin with, its reliance on
Rosenberg
was
misplaced. In that case this court, with reference to
Voet
(23
2 68), held that for the sake of completeness, the registrar of deeds
required a wife, who after her husband’s death
wished to deal
with her half share in land, to first receive transfer. That practice
however did not alter the principle that dominium
of the land passed
by reason of the community of property. However,
in
Greenberg
this court held that the position under
our modern system of administering deceased estates was that a
legatee does not acquire
dominium of immovable property immediately
on the death of the testator. Instead, the legatee acquires a vested
right to claim
delivery of the legacy from the testator’s
executor at some future date. The legatee acquires dominium in the
property only
once it is transferred to him by the executor When
community of property is terminated (by death), the survivor is not
on
such termination automatically and immediately vested with
dominium of half of the assets of the joint estate, but merely the
right
to claim from the executor half of the net balance of the joint
estate after winding- up. As Van Schalkwyk points out,
the
common law position set out in
Rosenberg
no longer
forms part of our law; and further that
Rosenberg
dealt
with the dissolution of marriage by death, not divorce, and there is
no common law authority applying the principle
also in the case of
divorce.
[27]
Fundamentally however, the court in
Corporate
Liquidators
overlooked
the common law principles of co-ownership, as well as the requirement
in
s
26
of
the
Deeds
Registries Act that
co-ownership
in land is only terminated on attestation (registration) of deeds of
partition transfer by the registrar, when ownership
is conveyed to
the respective owners of the land. Spouses married in community
of property automatically become bound co-owners
of immovable
property in their joint estate. Upon termination of the joint
estate of Mr and Mrs Wiggill on divorce, the bound
co-ownership was
replaced by free co-ownership until such time as the subdivision of
Erf […] was effected. It is only upon
attestation of the deeds
of partition transfer by the registrar that free co-ownership is
replaced by individual ownership. At
that point ownership of portion
1 of Erf […] would have vested in Mrs Wiggill – a right
that could, in the circumstances,
only have been validly constituted
by registration.
Thus,
Mrs Wiggill obtained only a personal right to subdivision and
transfer of portion 1 of Erf […].
The court therefore erred in holding that the subdivision of Erf [..]
was a mere formality.
[28]
…
[29] For these reasons,
and to the extent that it held that dominium of immovable property
vests immediately in a spouse in accordance
with a settlement
agreement that is made an order of court, and that transfer of such
property is not required for dominium to
vest,
Corporate
Liquidators
was
wrongly decided. It follows that the court a quo erred by
relying on this case in holding that upon the granting
of the divorce
order, ownership of Mr Haynes’ half share in the property
vested immediately in Mrs Haynes; and in its interpretation
of
s
16
of
the
Deeds
Registries Act.
”
(my
underlining).
25.
I accept that the respondents agreed that the “property will be
retained and be registered
in the name of the Defendant who shall
then be responsible for all debts in respect of such property”
and that the first
defendant applied for the mortgage over the
property well knowing that he has ceded all his rights in the
property to the second
respondent.
26.
The second respondent, however, did nothing to ensure that the
property be registered in
her name and was at all instances aware of
the fact that the first respondent was still a registered owner. She
was also aware
of the fact that their settlement agreement was never
made an order of court and therefore it could only have force
inter
partes.
27.
In
Hlongwane
and Others v Moshoaliba and Others
[5]
three sisters appealed against the dismissal of their application to
have the sale and transfer of and registration of a mortgage
bond
against their family house set aside. Even though the sisters
knew they could have been registered as co-owners with
their brother
Dennis, they allowed their family house to be registered in only
their brother’s name. Their brother
sold the property
without their consent and Standard Bank registered a mortgage bond
against the property on behalf of the new
owner.
28.
The full court held as follows:
“
[45] There
seems to be no doubt from a moral point of view that what Dennis did
was not fair, and thus the situation in which
the appellants find
themselves in deserves some sympathy. There is also no doubt from the
appellants’ papers that this is
a matter of significant
personal importance.
[46] However,
in law what needs to be considered is whether the agreement which the
appellants concluded with Dennis and the
subsequent transfer of the
house into his name brought about valid and enforceable transfer. The
same applies to the transfer of
the property into the name of the
first respondent and the registration of the mortgage bond
simultaneously with the transfer.
[47] The
appellants in their papers do not make out any case that there was
any defect in the agreement they concluded with
Dennis. The agreement
and the transfer on their version were done with their consent. They
agreed to have the property transferred
into the name of their
brother. No endorsement was entered on the title deed to
restrict his rights to transfer the property
or to deal with it in
any other way as a registered owner. He was thus legally
competent to transfer the property, and Ms
Moshaoliba was legally
competent to acquire the property.
[48] In
light of the above, the conclusion reached by the court below that
“de facto,” there was no defect in the
title,”
cannot be faulted. It was also correct in my view to say that the
misconduct on the part of Dennis after the transfer
of the property
into his name cannot give rise to defects in the title, but rather it
likely gives rise to a claim in damages.
[49] The
appellants on their version knew from the advice of the officials
that the property could be jointly registered into
their names. They
consciously elected, being fully aware of their rights, to have the
property registered in the name of Dennis.
They did not insist
on an appropriate endorsement of the title deed. Their agreement
effectively replaced their right to
ownership with the personal
right. This means in selling the house he effectively breached his
personal obligation to his sisters,
the appellants.
[50] It is
evidently clear from the papers that the intention was to transfer
the house without the transfer being tainted.
It accordingly follows
in applying the abstract theory of transfer that the requirements of
a valid real agreement were satisfied
and thus the transfer to
the
bona fide
purchaser was valid and enforceable
and accordingly the property cannot be vindicated.
[51] The
terms of the agreement that the property was to be the family house
do not assist the case of the appellants in two
aspects. The first
being that there is no evidence that the first respondent was aware
of the agreement or that it had been brought
to her attention before
purchasing the property. The second aspect is that the agreement was
registered in the Title Deed to make
the public aware of the
restriction on the property.
[52] The
complaint by the appellants that the department erred in registering
the property without including the notion of
“Family House”
in the deeds registry does not assist the case of the appellant.
There was, in this respect never a
procedural attack on the
procedural validity of the finding that the property should be
registered in the name of Dennis.
[53] The
same applies to the comment by the department that it could not
alienate the house nor bequeath any party the property
in the face of
the “Family House Rights Agreement.” I have already
mentioned somewhere else in this judgment
that this notion was
nothing but a personal arrangement between the siblings. It does not
elevate that arrangement above the real
right of ownership in the
immovable property, registered through the transfer process.
[54] The
comment, more importantly, does not assist the case of the appellants
because once the determination and the registration
processes were
completed the official of the department became
funtus
officio.
In the circumstances, the advice of the department
was misconceived particularly when regard is had to the fact that the
Act
makes no provision for the concept of a “Family House.”
[55] The
validity of the decision of the Director-General to transfer and
register the property in the name of Dennis, was
never attacked in
any proceedings, be it to appeal or review. It accordingly follows
that the factual position arising from that
decision and the legal
consequences cannot be ignored.
[56] It
can thus be inferred that before making the declaration that Dennis
had met the requirements to be granted the ownership
of the property
and that it be transferred into his name, the Director-General
complied with the requirements of
s 2
read with
s 3
of the Act. In
other words, the determination made was published in the prescribed
manner with an indication that the determination
was subject to an
appeal by any aggrieved person including the appellants. It should
also be noted in this respect that the appellants
did nothing to
challenge the fact that in transferring the property the “restriction
family housing” was not included
and they instituted these
proceedings nine years after Moshoaliba purchased the house.”
29.
The first respondent did not have the second respondent’s
permission to apply for
a mortgage bond over the property, however,
the settlement agreement only provided her with a personal right
against the first
respondent for the transfer of the property and if
she suffered any damages due to his conduct a claim for damages.
30.
I therefore grant the following order:
ORDER.
1.
The hypothecated property:
ERF […]
G[..] UNIT [..]
TWONSHIP
REGISTRATION DIVISION J.R., PROVINCE OF NORTH WEST
MEASURING 325
(THREE HUNDRED AND TWENTY-FIVE SQUARE METERS)
HELD
BY DEED OF GRANT […]
be
declared specially executable in terms of
Rule 46(A)
(8) that the
property may be sold by the Sheriff.
2.
The immovable property is declared specially executable in terms of
rule 46(8)(d)
and the immovable property may be sold with a reserve
price of R130 000, 00.
3.
the registrar is authorized to issue a writ of execution against the
immovable
property, in terms of
Rule 46(1)
read with
Rule 46(A).
4.
That the first respondent pays the costs of the execution of the said
property.
5.
That the respondents (Mr and Ms C[…]) jointly and severally
pay the costs
of suit on a party and party scale.
ACTING
JUDGE JF BARNARDT
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION OF
THE HIGH COURT, PRETORIA
Delivered: This judgment
was prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation
to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines.
The date for hand-down is deemed
to be 27 May 2021.
APPEARANCES
For
the applicant: Adv J van der Merwe
Instructed
by:
Tim du Toit & Co Inc.
For
the first respondent: Mr C[...]
In
person
For
the second respondent (occupier) Ms N Moses
Nicole
Moses Inc.
Date
of hearing: 9 March 2021
Date
of Judgement: 27 May 2021
[1]
2019
(2) SA 117
(SCA) par. 16 -17
[2]
2019
(2) SA 117
(SCA)
par
18 -20.
[3]
2007(2)
SA 520 (T)
[4]
Saflii
(7462/2009)
[2012] ZAWCHC 32
(29 March 2012)
[5]
Saflii
(A5009/2017) [2018] ZAGPJHC 114 (2 February 2018)