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[2016] ZAGPPHC 755
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Bernabei v Bernabei; In re: Sheriff Johannesburg East v Kumalo (23325/2010) [2016] ZAGPPHC 755 (24 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 23325/2010
DATE:
24 AUGUST 2016
In
the matter between:
MARCO
BERNABEI
..................................................................................................................
Plaintiff
And
EMMA
BERNABEI
.................................................................................................................
Defendant
In
re:
SHERIFF
JOHANNESBURG
EAST
......................................................................................
Applicant
And
KUMALO
GLADNESS
........................................................................................................
Respondent
JUDGMENT
MOTHLE
J
1.
This is an application in terms of Rule
46(11) of the Uniform Rules of Court, wherein the Applicant seeks to
have cancellation of
a purchase and sale agreement arising out of an
execution sale.
2.
The Applicant seeks an order as follows:
2.1
“That the sale in
execution that took place on 30 April 2015, in
respect
of immovable property known as Section No. 8 as shown and more fully
described
on Sectional Plan No. SS 34……….
in the scheme known as Allan Ridge in respect of the land and
building or buildings situated at E
rf 6….., B………
T……
, Local Authority of City of
Johannesburg Metropolitan Municipality, of which section the floor
area, according to the said sectional
plan is 61 (sixty one) square
metres and an undivided share in the common property in the scheme
apportioned to the said section
in accordance with the participation
quota as endorsed on the sectional plan, in accordance with the sale
of execution issued by
the Registrar, be cancelled in terms of the
provisions of Rule 46(11) of the High Court Rules;
2.2
That the Respondent is
ordered to pay:
2.2.1
The costs of this
application; and
2.2.2
The costs incurred by the
Plaintiff in respect of the sale in execution by way of public
auction, which costs will include:
2.2.2.1
The costs of preparation and
scheduling of the sale in execution; and
2.2.2.2
The Sheriff commission
relating to the sale in execution;
2.2.3
Any other loss sustained by
the Plaintiff as a consequence of the Respondent’s default in
respect of her obligations relating
to the sale in execution
.
2.3
Authorising the Sheriff with
appropriate jurisdiction to evict the Respondent and/or any other
person who might occupy the property
that was sold in execution in
accordance with the provisions of the Practice Directive 6 of 2011;
2.4
Further and/or alternative
relief. ”
3.
It is a general practice of this
Division of the High Court that applications in terms of Rule 46(11)
are heard a Judge in
4.
It appears from the file and prayer 1 of
this application that the auction sale occurred in 2015. This
application has been presented
before other Judges before it came to
me.
5.
Upon receipt of the application, I
noticed that service had been effected on the Respondent’s
address by affixing the documents
on the entrance of her residence.
There was no indication whether she had received the application and
was aware of the relief
sought There was also no indication whether
she intends to oppose the application. I noticed that the agreement
contained her telephone
numbers and requested my clerk to contact her
and ascertain if she intends to oppose the application. Before I
could consider the
application, the Respondent came to the High Court
and informed my clerk that she does not oppose the application but
would like
to have a refund of her deposit, minus the necessary costs
that applicant has incurred. My clerk explained to her to file an
affidavit
and also serve it on the Applicant.
6.
I have now had sight of the Respondent’s
affidavit as well as e- mail annexures which reveal the following:
6.1
After purchasing the property on
auction, she could not get further financial assistance to complete
the transaction;
6.2
She had informed the Sheriff by e-mail
dated 4 May 2015, which e-mail is attached to her affidavit, that she
is unable to proceed
with the sale agreement and would like to have a
refund of the deposit;
6.3
In her affidavit before me, she deposes
to the fact that she needs the refund urgently pay for her daughter’s
school fees.
She further deposes to the fact that she has never taken
occupation of the property.
7.
It seems to me that the Respondent, on
her own version, does not oppose the cancellation of the purchase and
sale agreement pursuant
to the sale in execution. The only concern
she raises is a claim for a refund of her deposit. Further,
considering that this transaction
took place in May 2015, it is now
more than a year and this matter has not been finalised.
8.
It would seem that generally the process
of refunding the purchaser what is due after all costs have been
considered in a collapsed
sale in execution, are very often a subject
of considerable delay. The relief sought by the Respondent in this
matter calls for
an expeditious process, considering the delay that
has already occurred in this matter.
9.
Having regard to what is stated above, I
make the following
order:
1.
The sale in execution which took place
on 30 April 2015 in respect of the immovable property described in
prayer 1 of the notice
of application is hereby cancelled;
2.
The deposit paid by the Respondent as
part of the purchase price shall be held in trust by the sheriff and
be dealt with as shall
be directed by the Court hearing this
application;
3.
The Applicant is ordered to quantify the
costs incurred in respect of the sale in execution, which costs
should include;
3.1
The costs of preparation and scheduling
of the sale in execution;
3.2
The Sheriffs commission relating to the
sale in execution;
3.3
Any loss sustained by the Plaintiff
and/or the Applicant as a consequence of the Respondent’s
default in not proceeding with
the sale in execution;
4.
The quantification of these amounts must
be stated in an affidavit by the Applicant, including all necessary
documentation in support
thereof, which affidavit must be delivered
(served and filed) within 10 calendar days from the date of this
order;
5.
The Respondent may deliver an opposed
affidavit in respect of the said amounts within 10 calendar days from
receipt of the Applicant’s
affidavit and thereafter the
Applicant may reply thereto within 10 calendar days.
6.
This application is referred to open
Court for adjudication and the Registrar of this Court is directed to
provide a preferential
date in the opposed roll, being not later than
2016. The applicant must obtain the date of hearing from the
Registrar and notify
the Respondent of the date in writing and also
by telephone, not later than 15 days before the hearing;
S
P MOTHLE
Judge
of the High Court
Gauteng
Division
Pretoria