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[2016] ZAGPPHC 1013
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Sheriff of Vereeniging v Awe and Another (40609/2012) [2016] ZAGPPHC 1013 (30 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE
NO: 40609/2012
30/10/2016
In
the matter between:
THE
SHERIFF OF
VEREENIGING
Applicant
And
OLANREWAJU
ISAAIAH AWE
First Respondent
MMAGESEKGWENG
JACQUILINE AWE
Second Respondent
In
re:
FIRSTRAND
BANK
LIMITED
Plaintiff
CHARMAINE
SARAH
GAULA
Defendant
JUDGMENT
MBONGWE,
AJ
INTRODUCTION
[1]
The applicant in this matter seeks an order in terms of Rule 46(11)
of the Rules of the Court for the cancellation of a sale
of immovable
property that had been attached in execution in execution of a
judgment and further ancillary relief. The application
was considered
in chambers.
REASONS
FOR THE RELIEF SOUGHT
[2]
The reasons for the relief sought is set out in a letter of demand
dated the 11 April 2016 addressed by or on behalf of the
applicant to
the respondent. The second and the third paragraphs of the said
letter, which is attached to the applicant's founding
affidavit, read
thus :
"In terms of condition 4.7 of the Conditions of Sale
in Execution of Immovable Property, the purchaser
shall be responsible for payment, within 7 days after having been
requested to
do so by the appointed conveyancer, as per clause 4.7.1:
4.7.1
"of all amounts required by the Municipality for the issue of
a
clearance Certificate in terms of Section
118(1) of the Local Government Municipal Systems Act, No. 32 of
2000,to the effect that
all amounts due in connection with the
immovable property for municipal service fees, surcharges on fees,
property rates and other
municipal taxes, levies and duties during
the two years preceding the date of application for the certificate
have been fully paid.."
The
third paragraph of the same letter reads thus:
"You have
breached the terms of the Conditions of Sale in Execution of
Immovable Property and you are hereby given notice in
terms of the
duly signed Conditions of Sale in Execution of Immovable Property,
specifically condition 8.1,to pay the rates and
taxes in the amount
of R60 984-61 ( SIXTY THOUSAND NINE HUNDRED AND EIGHTY FOUR RAND AND
SIXTY ONE CENT) plus interest at the rate
of 10.40% on the amount of
R180 000.00 ( ONE HUNDRED AND EIGHTY THOUSAND RAND),
nominal
annual compounded daily from 1:fh September 2015 up to and including
date of registration, as per condition 4.
7.
1
and 4.6, and in respect of condition 8.1 of the Agreement of Sale,
within 7 (SEVEN) days of receipt hereof, failing which the
seller
will cancel the agreement with you and claim damages from you, if
any."
INVALIDITY
OF THE CONDTIONS OF SALE
[3]
I have perused the document captioned "CONDTIONS OF SALE
IN EXECUTION OF IMMOVABLE PROPERTY" attached to this
application.
It appears to have been signed by the parties on the
13th August 2015. There are two paragraphs
4.7
appearing on paginated page 8; of relevance are the provisions of the
lower paragraphs 4.7, 4.7.1 and 4.7.2. These clauses, in
seriatim,
read as follow:
"4.
7 The purchaser is hereby informed of the following charges;
4.7.1
Arrear rates and taxes, will be provided to the sheriff prior to
sale
4.7.2
Arrear charges payable in terms of the Sectional Titles Act,
95
of 1996, will be provide to sheriff prior to sale.
"
The Sheriff and the purchaser note that the amount set forth in
this clause are
a
Reasonable
estimate only." (Sic)
[4]
It is worth mentioning that no figures/amounts are disclosed
in clauses 4.7.1 and
4.7.2. This renders the reference
to 'reasonable estimates only' superfluous and meaningless. The
amount, however, calculated, in
respect of alleged Municipal rates
due and owing in the sum of R60 984.61 is communicated for the first
time to the respondents
in the letter dated 11 April 2016, that is,
eight months after the Conditions of Sale purportedly became a
binding agreement between
the parties. This amount constitutes an
additional approximately 33% of the agreed purchase price and that
owing in terms of the
Sectional Titles Act remains undisclosed to the
respondents. The non- inclusion of these amounts in the conditions of
sale prior
to such document being signed renders the Conditions of
Sale invalid and unenforceable. (See Sheriff of the High Court,
Johannesburg
East v Chetty )
[4]
It is curious that the applicant does not state whether,
having paid the required 10% deposit and the sheriff's fees, the
respondents
have subsequently paid the balance of the purchase price.
In any event the sought cancellation of the sale in this application
is founded on the respondents' non- compliance with the invalid
provisions of clauses 4.7, 4.7.1 and 4.7.2. The relief sought is,
consequently, untenable.
[5]
It is a reality that the judgment creditors in applications of
this nature are represented by the sheriffs. It would be unjust for
such creditors to bear the brunt where the sheriff acts improperly in
the execution of his mandate given in terms of the rules
of the
court. These creditors ought to be allowed to recover debts due to
them and the rules were intended to facilitate such recoveries.
However, the sheriff cannot be spared for his failure to abide by the
principles applicable to the execution of his mandate; a
failure that
unfortunately affects members of the
public. It is
understandable why the respondents have not been able to fulfil their
obligations in terms of clause 4.7, as stated
above - the additional
amounts they only got to know about subsequent to signing the
Conditions of Sale.
[6]
In the result the following order is made;
1.
The sale in execution in this application is declared invalid and,
therefore, cancelled.
2.
The applicant is ordered to refund the respondents all monies they
paid in respect of the purported purchase of the immovable
property
concerned.
3.
The applicant is ordered to pay the costs.
_______________________
M
MBONGWE, AJ
ACTING
JUDGE OF THE HIGH COURT.