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[2016] ZAGPPHC 313
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Tagana and Another v Firstrand Bank Limited and Others (67930/2015) [2016] ZAGPPHC 313 (6 May 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
6/05/2016
CASE
NO.: 67930/2015
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
NTULI,
AARON
TAGANA First
applicant
NTULI,
SIBONGILE
PAULINE Second
applicant
and
FIRSTRAND
BANK
LIMITED First
respondent
SHERIFF
OF THE HIGH COURT, PRETORIA
NORTH
EAST Second
respondent
VAN
NIEKERK,
HENDRIK Third
respondent
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
During April 2005 the first respondent afforded the applicants a
mortgage loan to enable them to purchase property known as Portion
2
of Erf […] Villieria Township Registration Division J.R.,
Province of Gauteng.
2.
However, the applicants defaulted on their obligations in terms of
the loan agreement and the first respondent foreclosed on
the
mortgage loan during July 2008 and obtained judgment by default
against the applicants on 30 September 2008.
3.
Ultimately, on 9 June 2015 and pursuant to the aforementioned
judgment, the Sheriff sold the property in execution to the third
respondent.
4.
The
applicants thereafter applied for an order declaring that the loan
agreement had been reinstated and setting aside the sale
in execution
of the aforesaid property. The first respondent resisted this
application on the premise of the judgment of the Supreme
Court of
Appeal in
FirstRand
Bank et al v Nomsa Nkata.
[1]
5.
When the matter was called on Tuesday, counsel for the applicants
indicated that the Constitutional Court had in a recent judgment,
in
the aforementioned case, overturned the judgment of the Supreme Court
of Appeal. Counsel for the first respondent sought that
the matter
stands down to enable him to obtain clear instructions from the first
respondent in view of the said recent judgment.
6.
There was no appearance on behalf the second and third respondents.
7.
When the matter was re-called, counsel for the applicants and first
respondent were agreed that the applicants were entitled
to an order
declaring that the loan agreement had been reinstated and agreed that
the date of reinstatement was 13 May 2013.
8.
Counsel for first respondent conceded that in view of the
re-instatement of the loan agreement, the applicants were entitled
to
an order setting aside the sale in execution of the aforementioned
property in line with the judgment of the Constitutional
Court
referred to above.
9.
There was no agreement in respect of the issue of costs. Counsel for
the applicants indicated that he had been and still acts
pro bono
for the applicant.
10.
I do not intend making an order in respect of costs.
I
grant the following order.
(a) By agreement it is
declared that the loan agreement which was concluded between the
first and second applicants and the first
respondent on 17 April 2005
was re-instated by the applicants in terms of
section 129(3)
of the
National Credit Act, No. 34 of 2005
on 13 May 2013;
(b) The sale in execution
on 9 June 2015 of the immovable property namely Portion 2 of Erf […]
Villieria Township Registration
Division J.R., Province Gauteng
situated at the street address 435-Twenty First Avenue, Villieria,
Pretoria by the second respondent
to the third respondent is declared
void and set aside.
There
will be no order as to costs.
C
J VAN DER WESTHUZEN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION
On
behalf of Applicant: R
Wilson
Instructed
by: Stan
Fanaroff & Associates
On
behalf of First Respondent: A
P Ellis
Instructed
by: PDR
Attorneys
[1]
(213/24)
[2015] ZASCA 44
(26 March 2015)