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[2016] ZAGPPHC 637
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Absa Bank Limited v Dennison and Others (2152/2011) [2016] ZAGPPHC 637 (29 July 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
29/7/16
CASE
NO: 2152/2011
In
the matter between -
ABSA
BANK
LIMITED APPLICANT
and
DENNISON,
DIXIE
STEPHEN FIRST
RESPONDENT
DENNISON,
PRISCILLA ISABELLA SECOND
RESPONDENT
THE
SHERIFF OF THE HIGH COURT,
BRITS THIRD
RESPONDENT
THE
PECANWOOD ESTATE HOMEOWNERS
ASSOCIATION
NPC FOURTH
RESPONDENT
JUDGMENT
VILAKAZI,
AJ:
[1]
For ease of reference I refer to the parties in this matter as
follows: I refer to the applicant as ABSA, the Fourth Respondent
as
Pecanwood Homeowners Association.
[2]
This is an application to set aside a sale in execution. The basis of
the application is that a Mr Jacobus Opperman, an administrative
clerk in the employment of its attorneys of record in this matter
failed to furnish ABSA with a statement of the arrear levies.
This
omission caused it not to make an informed decision in calculating
its bidding price.
[3]
On 30 April 2013, the applicant (ABSA) brought an application to set
aside the sale Erf […] Pecanwood Extension 1 1 Township
(the
immovable property)it purchased at a sale on execution on 13 January
2012 on the ground that the sale was induced by the mistake.
In
support of its application ABSA relied on the affidavit deposed to by
Johannes Marthinus Opperman Oelofson Engelbrecht (Engelbrecht)
a
director of ABSA's attorneys of record which it had instructed to
collect the amount owing under the mortgage bond registered
over the
immovable property. Engelbrecht's firm also represented ABSA at the
sale in execution conducted by sheriff on 13 January
2012.
[4]
The application is opposed by Pecanwood Homeowners Association on
various grounds. Besides opposing the application on the merits
Fourth Respondent (Pecanwood) has also raised a number of points in
/imine which will be addressed later in this judgment. Not
only does
Pecanwood oppose the application it has also filed a counter
application in which it seeks the following relief:
1. A declaratory order
that the conditions of sale are valid and binding on ABSA and that
ABSA must act in accordance with the sale
in execution.
2. ABSA be directed to
act in accordance with its obligations in terms of the conditions of
sale including payment of transfer duties,
cost of transfer, arrear
rates and other charges including the amount due and owing by ABSA to
Pecanwood as at date of transfer
which is necessary to effect
transfer of this immovable property being an undeveloped stand.
3. That ABSA be directed
to take transfer against the back drop of compliance of the sale
conditions to take transfer.
4. In the alternative to
aforesaid relief and in the event that the court does not grants
orders as aforesaid that ABSA be directed
to make payment of the
outstanding levies and charges due to Pecanwood up to date of the
transfer of property.
5. In the further
alternative to the aforesaid relief and only in the event that court
does not grant an order as aforesaid that
the Sheriff of court be
directed to comply with rule 46(11) of the rules of court read
together with clause 8 of the conditions
of sale.
6. That it be declared
that ABSA is liable for the loss sustained by Pecanwood by reason of
its default.
[5]
As I have pointed out at the beginning of this judgment that
Pecanwood is opposing the application, before dealing with the
merits
of its opposition, it I convenient to dispose of Pecanwood' s
preliminary points.
[6]
Pecanwood raised the following preliminary points:
6.1 Firstly that ABSA has
no cause of action, and that the error is not a just error that
entitles them to walk away from the sale.
It was contended by counsel
on behalf of Pecanwood that tis oversight by Mr Opperman of his
failure to submit the arrear levies
to ABSA bank is not an error in
the execution of the court rules justifying cancellation of the sale.
For this submission it relied
in the case of McCreath v Wolmarans NO
and Others
2009 (5) SA 451
(ECG).
[7]
On the other hand ABSA contended that due to Opperman's mistake it
incorrectly calculated its bidding figures as a result of
his failure
to submit to ABSA the arrear levies allegedly owed to Pecanwood by
the Denisons. It was submitted on behalf of ABSA
that the aforesaid
omission by Mr Opperman to relay this requisite information was a
justus
error was reasonable.
[8]
I agree with counsel for ABSA that the facts in the McCreath case are
distinguishable from the present and in any event. In
McCreath the
main issues between the parties is that the bank' s attorney who
completed the sale on its behalf contended that he
had made a bona
fide mistake in respect of the court rules applicable to the sale in
execution which in terms of a clause in the
agreement entitled the
bank to lawfully cancel the agreement. The court held that the bank '
s attorney ignorance of the conditions
of sale and court rules did
not constitute an error in execution of the court rule. I am of the
view that the McCreath case is
not a case on point. I also hold the
view that this point in
limine
that ABSA has no cause of
action should not have been raised as a point in
limine
because
it is a point that goes to the merits of the dispute.
[9]
The second point in
limine
is non-joinder. It was contended on
behalf of Pecanwood that ABSA should have joined in CJ Lourens in the
application seeking to
set aside the sale. Pecanwood does not
specifically state the basis of joining Lourens as a party.
[10]
I am of the view that Lourens in concluding the sale in execution on
13th January 2012 was pursuing ABSA ' s interest. Attached
to the
conditions of sale, it is expressly stated that he signed in a
capacity as a duly authorised agent of ABSA, his principal.
He had no
legal interest in the matter and has nothing to gain or lose in the
outcome of the setting aside of the sale. There is
no substance to
this point and it falls to be dismissed.
[11]
Consequently the points in
limine
cannot be sustained.
[12]
I now proceed to deal with the merits.
[13]
The issue therefore is whether ABSA is entitled to resile from the
sale on the basis of the allegations on which it relies.
The issue
arises from the following background facts which are common cause. On
8 June 201 O Pecanwood issued summons against First
Respondent and
Second Respondent (the Dennisons) for the payment of the sum of R305
481 .41 in respect of levies and related charges
owing to it in
respect of the immovable property. Pecanwood subsequently sought and
obtained the default judgment against the Dennisons
in the sum of
R305 481 .41, costs of suit on an attorney and client scale plus
interest of 1 5.53 per annum from date of issue
of summons, being the
8 June 2010, to date of payment both days inclusive.
[14]
On 22 February 201 1 ABSA issued summons against the Dennisons
seeking payment of the sum of R 544 671,65, plus interest on
the sum
of R544 671 ,65 at the rate of 93 per annum calculates and
capitalised monthly in arrears from 4 December 2010, to date
of
payment , and costs to be taxed on attorney and client scale. Its
claim was based on a loan agreement it concluded with the
Dennisons
in terms of which it lent and advanced to them a sum of R 1 730 000,
payment of which was secured by a mortgage bond
which was registered
over the immovable property.
[15]
On 29 August 201 1 ABSA took default judgment against the Dennisons
for the payment of the sum of R544 671 .65 plus interest
and costs
pursuant to a mortgage bond. ABSA also obtained an order declaring
the immovable property be specially executable. Pursuant
to that
order ABSA arranged for the sale of the immovable property through
the auction by the sheriff on 13 January 2012. Prior
to the date of
the holding of a sale in execution, Pecanwood as one of the
Dennisons' s judgment creditors wrote to ABSA ' s attorneys
of record
notifying that the levies in the amount of R 1 184 179 .32 in respect
of the immovable property was outstanding and that
this amount the
amount Pecanwood sought to recover from the proceeds of sale in
execution of the property. Pecanwood furnished
this information to
Opperman, an administrative clerk in the employ of ABSA ' s attorneys
of record. This is the information which
ABSA contends it did not
take into account in bidding for the property at an auction conducted
by the Sheriff. It alleges Opperman
did not furnish it with a
statement of outstanding levies in respect of the property he
obtained from Pecanwood and this resulted
in it not factoring the
outstanding levies in its bid for the property. It is this error
which ABSA contends constitutes a valid
ground for its decision to
withdraw from the sale in execution.
[16]
On 29 August 201 1, ABSA took judgment pursuant to a mortgage bond
for monetary payment of R 544 671 , 65 with interest calculated
on
R544 671 .65 at the rate of 93 per annum calculated and capitalised
monthly in arrears, from 4 December 20 l0 and this immovable
property
was declared specially executable.
[17]
Pursuant to that order, the immovable property was sold in execution
on 13 January 2012. The conditions of the sale which are
relevant for
this purpose of this judgment are as follows:
Clause
5: Should a bona fide error be committed by the Plaintiff's Attorney
or the Sheriff in respect of the Execution of the Court
rules either
in the attachment or sale in execution of the property, this sale can
be cancelled forthwith and the property be put
up for auction again.
Such error shall not be binding on the sheriff or the plaintiff ' s
attorney or the plaintiff and neither
the purchaser of the immovable
property or any other person shall have any claim whatsoever against
the aforesaid parties.
Clause
7.1 : The purchaser shall on the day of sale pay a deposit of l0%(
ten per centum) on the purchase price, the sheriff's fees
in the
amount of 63 ( six per centum) of the proceeds of sale up to a price
of R30 000.00 (Thirty Thousand Rand) and thereafter
3.53 (Three comma
five per centum) of the balance of the purchase price up to a maximum
fee of R 8 750 00 (Eight Thousand Seven
Hundred and fifty Rand)
subject to a minimum of R440 (Four Hundred and Forty Rand) in cash.
Clause
7. 3: "...The purchaser shall be liable for the payment of
interest to the execution creditor at the rate of 93 per
annum
compounded monthly on the amount of the award to the execution
creditor in the plan of distribution as from date of sale
to date of
registration of transfer.
Clause
7.4 ' The purchaser shall pay all transfer duties, costs of transfer,
and arrear rates, taxes and other charges necessary
to effect
transfer upon request by attorney for the execution creditor '
Clause
8: "If the purchaser fails to carry out any of his obligations
under the conditions of sale, the sale may be cancelled
by a Judge on
the report of the sheriff and due notice to the purchaser, and the
property may again be put up for sale, and the
purchaser shall be
responsible for any loss sustained by reason of his default and the
purchaser forfeit all amounts already paid
by the purchaser as
rouwkoop to the execution creditor, which loss may on application of
any aggrieved creditor whose name appears
on the distribution
account, be recovered from him under judgment of the judge pronounced
summarily on a written report by the
sheriff, after such purchaser
shall have received notice in writing that such report will be laid
before the Judge for such purpose,
and if he is already in possession
of the property the sheriff may, on 7 (seven) days ' notice apply to
a Judge for an order ejecting
him or any person claiming to hold
under him there from. The purchaser chooses as his domicilium citandi
et executandi the address
set out against his land hereunder"
Clause
10' the purchaser may obtain transfer after he has complied with all
the provisions of condition 7. With registration of
transfer any
claim for interest shall lapse."
[18]
Pecanwood Homeowners Association sued Second Respondent and Third
Respondent (the Dennisons) for payment of R l74 000 in respect
of
arrear levies and other charges which they alleged it owed. The
Dennisons did not defend the action and Default Judgment was
granted.
[19]
Pecanwood opposes the application and further filed a counter
application in which amongst others they seeking specific performance
to be ordered against ABSA and the Sheriff of court. This counter
application will be dealt with later in my judgment.
[20]
The basis of their objection is on the following grounds:
[21]
In its Answering Affidavit it disputes that failure by Opperman, an
administrative clerk in the employment of ABSA 's attorneys
of record
to furnish ABSA with the arrear levy figures due to it is a bona fide
mistake, entitling it to set aside the sale it
entered it with
Sheriff on 1 3 January 2012.
[22]
It further avers that the so called mistake by ABSA ' s attorneys as
duly authorised agent is attributable to ABSA
[23]
The bona fide mistake claimed by ABSA ' s agent does not fall within
the ambit of the rules of court, nor the parameters of
the conditions
of sale
[24]
ABSA concluded the sale with their eyes wide opened and consequently
they are bound by the conditions of sale.
[25]
It further avers that ABSA had knowledge prior to the sale in
execution that it had obtained judgment against the Dennisons
for
arrear levies and charges in respect of this property and was further
informed by email on 7 December 201 1 of the outstanding
amount.
[26]
It further avers that at a sale in execution sheriff of court
mentioned the arrear levies due and payable by the Dennisons.
[27]
It further avers that the email dated 2 December 201 1 , addressed to
it by the said Opperman stated as follows:
[28]
"We act on behalf of ABSA Bank Limited. We are in the process of
arranging a sale in execution of the abovementioned title
unit. For
us to continue with the sale that will take place in January 2012, we
need the outstanding levies of the abovementioned
ASAP
to
enable us to provide ABSA Bank Limited therewith."
[29]
"ABSA needs the information to prepare a bidding figure for the
sale and execution. Once the sale has taken place, our
conveyancing
team will contact you for levy clearance figures and which amount
will then be paid by the sale in execution purchaser."
[30]
It further relies on clause 7.4 that the sale in execution conditions
which provides that the purchaser shall be responsible
for arrear
rates and other charges necessary to effect transfer constitutes a
stipulation alter which was accepted by Pecanwood
confers real right
to it. Secondly the email by a Mr Opperman addressed to them which
states that once the sale has taken place,
the conveyancing team will
contact them for levy clearance figures and which amount will then be
paid by the sale in execution
purchaser amounted to a stipulation
alteri
which they accepted. As per the aforesaid clause in the
conditions of sale ABSA is indebted to Pecanwood in the sum of R 2 1
1 7
443.84 as at November 2014.
[31]
In response thereto ABSA avers in its Replying papers that the said
Mr Opperman having failed to provide ABSA with the arrear
levies
figures could not bind ABSA to pay the arrear levies to Pecanwood. It
further avers that Mr Opperman did not have authority
to make such a
representation on behalf of ABSA.
[32]
It was the submission of ABSA that to hold it liable on the
representation made by its agent on the basis of ostensible
authority,
it has to be established that the agent had authority to
act as he had done under this circumstances.
[33]
ABSA denies that the email by Mr Opperman dated 6 December 2011,
amounts to an assurance that the sale in execution purchaser
is
non-consequential as he did not have the authority to undertaking
such on its behalf.
[34]
ABSA disputes that clause 7. 4 in the conditions of sale, which
states that the purchaser shall be liable for the transfer
costs
necessary to effect transfer, constitutes a contract for the benefit
of a third party in this matter, namely Pecanwood. Counsel
for ABSA
submits that in order for a valid agreement to come to fruition, the
intention to contract must be present. In this regard
counsel for
ABSA relied on the case of
Robinson V Randfontein Estates Gold
Mining
Co
Ltd 192
1 AD 168.
The court
held that an assurance given without
animus contrahendi
which
amounted to a general promise and consequently the contractual
undertaking is unenforceable in law.
[35]
For Pecanwood to succeed in the stipulation
alteri
argument,
the benefit on which they are alleging they have the right to
intervene is dependent on the validity of the sale in execution.
This
sale was concluded between the sheriff of court and ABSA at an
auction.
[36]
Hypothetically in the event that I am persuaded by Pecanwood's
reliance on the stipulation
alteri
is correct in their
submission that it has accepted the stipulation when they sent the
email on 7 December 2012, which enclosed
the statement of arrear
levies allegedly owed by the Dennisons, this defence will only avail
them if the cancellation application
by ABSA is dismissed.
[37]
In my view it has to prove the following the following in order to
succeed in their stipulation
alteri
argument:
(i) That there is a
benefit;
(ii) That benefit is
derived from a valid contract;
(iii) The agreement of
sale in execution must be found to be valid.
[38]
In
Eldacc (Pty) v Bidvest Properties (Pty) Ltd (201
1) ZASCA
144
Cloete JA stated in a contract to benefit a third party
relied on
Crookes
NO &
Another v
Watson and others 1
956 (1) SA
277
(A)
Schreiner
JA said at 291 B-F 'In the legal sense, which is alone is here
relevant, what is not very appropriately styled a contract
for the
benefit of a third person is not simply a contract designed to
benefit a third person, it is a contract between two persons
that is
designed to enable a third person to come in as a party to a contract
with one of the two. The typical contract for the
benefit of a third
person is one where A and B make a contract in order that C may be
enabled, by notifying A to become a party
to a contract between
himself and A. What contractual rights exist between A and B pending
acceptance by C and how far after such
acceptance it is still
possible for contractual relations between A and B to persist are
matters on which differences of opinion
are possible, but broadly
speaking the idea of such transactions is that B drops out when C
accepts and thenceforward it is A and
C who are bound to each other.'
Ponnan AJA said
in Pieterse v Shrosbree
No
and
Others 2005(1) SA 309 (SCA)
at para 9 and 10 said "In
such a case, the policy holder
(stipu/ans )
contracts with the
insurer (the
promittens )
that an agreed offer would be made
by the insurer to a third party (the beneficiary) with the intention
that on acceptance of the
offer by beneficiary a contract will be
established between the beneficiary and the insurer. What is required
is an intention on
the part of the original contracting parties to
the benefit upon acceptance by the beneficiary would confer rights
that are enforceable
at the instance of the beneficiary against the
insurer; for that intention is at the very heart of the
stipulatio
alteri . ( Ellison Kanh ' Extension clauses in insurance contracts (
1952)
69 SAU
53 at
56) . Thus the beneficiary, by adopting
the benefit, becomes a party to the contract (See
Total South
Africa (Pfy) Ltd v Bekker
NO
1992 (1) SA 6
1 7
(A) at 625
D-G) .
On the death of the insured,
provided the nomination has not been revoked during the insured' s
lifetime, any claim to the policy
proceeds by the beneficiary against
the insurance company would be based on the contract of the insurance
between the deceased
and the insurance company. It is to the
insurance company and no one else that the beneficiary would have to
look for payment."
[39]
My understanding of the reasoning in the Eldacc case is that there
must be a valid contract or a valid insurance policy for
the
nominated beneficiary to claim entitlement to the benefits thereof.
It follows without saying that if the insurance policy
is invalid
either at your instance that is the insured or at the instance of the
insurance company, whatever benefits the beneficiary
derives will
depend on the validity of the contract.
In
this matter before me it is ABSA's contention that the contract it
concluded with Sheriff of court was induced by mistake. The
question
is whether the explanation given by ABSA is reasonable? The key in
this argument of stipulation
alteri
is whether the sale in
execution was induced by error. If I accept that the conclusion of
the sale in execution was induced by error
then the stipulation is
alteri
argument fails.
[40]
Against this background and with reference to Christie' s 'The Law of
Contract in South Africa' 61h edition, page 328 is of
the view that a
party to a contract who can go further than this and can show that at
the time of the contract he personally was
labouring under a
misapprehension has a better claim to the laws attention if he seeks
escape liability under the contract. His
claim in effect is that the
court should apply a subjective test to the formation of the contract
and relieve him from liability
either because due to his unilateral
mistake, there was, subjectively no agreement at all or because in
the circumstances it would
not be fair to hold him to the contract.
This claim must always meet with the reply that as a general rule the
court must apply
an objective test and enquire whether the mistaken
party has so conducted himself as to give the other party reasonably
to believe
that he was contracting with him on certain terms, if so,
he is bound, whatever the subjective state of mind. That is the
general
rule, and our law of unilateral mistake has been developed in
a series of decisions on whether or not this general rule should
apply. This relationship between unilateral mistakes is made clear in
two appellate decision cases. In
George v Fairmead (Pty) Ltd
1958 (2) SA 465
(A) 467
Fagan CJ said:
"When can an error
be said to be
justus
for the purpose of entitling a man to
repudiate his apparent consent to a contractual term? As I read the
decisions, our courts
in applying the test, have taken into account
the fact that there is another party involved and have considered his
position. They
have in effect, said: has the first party-the one who
is trying to resile- been to blame in the sense that by his conduct
he has
led the other party as a reasonable man, to believe that he
was binding himself. If his mistake is due to a misrepresentation,
whether innocent or fraudulent, by the other party, then, of course
it is the second party who is to blame and the first party is
not
bound."
[41]
I am satisfied that the explanation by Mr Engelbrecht, ABSA '
attorney is reasonable, and ABSA has discharged the onus of showing
that the mistake was a reasonable one justifying release from the
contract. This mistake relates to a material matter justifying
ABSA
to escape from the contract because there was no fault on its part. I
am of the view that the explanation by ABSA ' s attorney
of record is
reasonable and consequently the sale should be set aside.
[42]
I am now turning to deal with Pecanwood counter application in which
it seeks specific performance and seeks the following
relief:
a. A declaratory order
that the conditions of sale are valid and binding;
b. In the alternative, an
order directing ABSA to effect payment to Pecanwood Homeowners
Association of outstanding levies and charges
due and payable to it;
c. In the further
alternative, an order directing the Sheriff of court to comply with
Rule 46(11)(b) and declaring that ABSA is
liable for the loss
sustained by Pecanwood Homeowner Association by reason of the default
of ABSA.
[43]
For the counter application by Pecanwood to succeed it will have to
prove that a case has been made out on its argument on
its reliance
on a stipulation argument.
[44]
I am of the view that In respect of its relief to enforce ABSA ' s
compliance with the terms of the sale of this 's counter
application
falls away, due to the fact that I have ruled that the sale should be
set aside.
[45]
In respect of the order directing that ABSA must pay the outstanding
levies, if the sale is cancelled the sheriff of court
cannot force
the purchaser to pay the levies. Pecanwood contended that the title
deed in respect of this property provides a condition
which states
that the property shall not be transferred without a clearance
certificate issued by it confirming that all amounts
owing by such
owner to the association has been paid. It was submitted on behalf of
Pecanwood that this title deed condition constitutes
a real right
enforceable against any third party.
[46]
In response thereto ABSA contends that this condition in the title
deed, even if it constitutes a real right, simply translates
that
Pecanwood can prevent transfer being registered in favour of a
purchaser unless the levies are settled. It was further submitted
that this financial obligation is attached to the property.
[47]
I am of the view that the submission by ABSA has merit that payment
of the levies is attached to the property. It is my finding
that it
is premature for Pecanwood to rely on clause 7.4 of the conditions of
sale. Pecanwood cannot use the stipulation in clause
7.4 in the
condition of sale to force ABSA to take transfer in the instance
where it is seeking a relief setting aside a sale.
This title deed
condition read together with the aforesaid clause should be invoked
or triggered when a transferee takes transfer.
This is an equivalent
of a
section 1
18
(3) of the
Local Government Municipal Systems Act
No. 32 of 2000
read with
section 1
18
(2) . Pecanwood cannot use the
title deed condition attached to this property to force ABSA to take
transfer. My understanding of
the thrust of ABSA ' s contention is
that its case is a 2-stage process.
[48]
Pecanwood contends that it relies on the conditions of sale clause
7.4. I am of the view that reliance by Pecanwood on the
aforesaid
clause at the stage of cancellation by ABSA will only assist them if
ABSA fails to pay f or the legal costs associated
with taking
transfer of this property. ABSA in a nutshell argues that it does not
want to be bound by this contract.
[49]
In my view, the answer to this question is that the contract should
be cancelled and I conclude that this is the end of this
matter.
[50]
In respect of a declaratory order directing sheriff to comply with
rule 46(11)(b) of the Uniform Rules of Court, and directing
the
sheriff to recover its loss it allegedly suffered as a result of
default by ABSA. Pecanwood for its contention relies on clause
8 in
the conditions of sale which states that the purchaser shall be
responsible for any loss sustained by reason of his default.
It
further contends that it considers itself as an aggrieved creditor
whose name appears on the sheriff's distribution list. In
response
thereto counsel for ABSA argues Pecanwood is not on sheriff's list of
distribution of account. It was submitted on behalf
of ABSA that
sheriff did not place it on terms and neither can it place itself on
terms.
[51
] Finally in my view, that Section 46(11)(b) would be applicable if
sheriff makes an in-chamber application to the Judge on
his report to
cancel the sale by reason of default by the purchaser and requesting
the property to be put on the sale in execution
again and further
seeks to hold the purchaser liable for the loss incurred and
associated with putting the property in the sale
in execution again.
It is my view that in the matter before me, the purchaser is seeking
to cancel the sale and therefore Pecanwood
cannot invoke the
provisions of section 46(11)(b). This contention by Pecanwood is
misplaced and is without substance. In this
present case, Pecanwood
cannot invoke the provisions of rule 46(11)b, where the purchaser is
seeking to cancel the sale. This rule
would apply if the sale was
sought to be cancelled by sheriff of court by reason of default by
the purchaser.
[52]
As a result of my determination that ABSA is entitled to set aside
the sale the Sheriff of court cannot force the purchaser
in this
instance, ABSA, to pay the levies. If the any loss that Pecanwood
might have suffered, I am of the view that nothing prevents
it from
executing the judgment it obtained against the Dennisons in 2010.
Whatever loss allegedly sustained by Pecanwoon, I fail
to understand
what is so difficult for it to execute the judgment obtained against
the Dennisons. Furthermore any prejudice if
any that might be
suffered by it as a consequence of the sale being set aside can be
ameliorated by pursuing their claim and executing
judgment obtained.
[53]
There were other arguments advanced by counsel to the parties, which
in my respectful view have no merit and some case authorities,
which
I find were not on point. My failure to deal with them is not out of
disrespect for counsel.
[54]
In respect of ABSA's main application, the sale in execution
concluded on 13 January 2012 between the Sheriff of court and
ABSA in
respect of the property described as:
Erf
[…] Pecanwood Extension 1 1 Township,
Registration
Division J.Q, the Province of North - West,
In
extent 522 (Five Hundred and twenty two) Square Metres
Which
took on 13 January 2012 is hereby set aside.
[55]
I will now deal with the costs of ABSA's main application. In
exercising my discretion I am depriving ABSA a costs order on
the
basis that it is ABSA that is seeking an indulgence setting aside the
sale because of the mistake committed by its attorneys.
I am of the
view that it is not fair and equitable to punish Pecanwood for the
mistake of ABSA's attorneys. I further hold the
view that Pecanwood's
opposition of the cancellation application was not unreasonable.
Their claim was not fictitious. The party
that has created the
problem is ABSA's attorneys as this mistake emanated from their
office.
[56]
In light of the above, ABSA is ordered to pay the costs of this
application.
The
order
[57]
I make the following order :
1. The application for
the sale in execution of the immovable property described as Erf […]
Pecanwood Extension 1 1 Township
is hereby set aside.
2. The Applicant (ABSA)
is ordered to pay the costs of its main application.
3. The Fourth Respondent
(Pecanwood Estate Homeowners Association) counter application is
dismissed with costs.
________________________
T.D.
VILAKAZI
ACTING
JUDGE OF THE HIGH COURT
DATE
HEARD: 27 OCTOBER
2015
JUDGMENT
DELIVERED: 29 JULY 2016
COUNSEL
FOR APPLICANT: J .A SWANEPOEL
INSTRUCTED
BY: SMIT SEWGOOLAM INCORPORATED
COUNSEL
FOR FOURTH RESPONDENT: C. WOODROW
INSTRUCTED
BY: A.J VAN RENSBUR G INCORPORATED