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[2015] ZAGPPHC 27
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Nkadimeng v Firstrand Bank Limited and Others (12203/2010) [2015] ZAGPPHC 27 (3 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No: 12203/2010
Date heard: 03
February 2015
Date of judgment: 03
February 2015
Not reportable
Not of interest to
other judges
In the matter
between:
NGOANATSOMANE
NOAH
NKADIMENG
......................................................
Applicant/Judgment
debtor
And
FIRSTRAND BANK
LIMITED
.......................................................................
Respondent/Judgment
creditor
THE SHERIFF,
POLOKWANE
........................................................................................
Second
Respondent
ANDRE
PIENAAR
.................................................................................................................
Third
Respondent
MARITZA
PIENAAR
..........................................................................................................
Fourth
Respondent
REGISTRAR OF
DEEDS,
PRETORIA
...............................................................................
Sixth
Respondent
JUDGMENT
A.M.L. PHATUDI J:
[1] At the
commencement of the hearing, it has been placed on record that the
respondents do not opposed the relief sought by the
applicant but for
the development of jurisprudence with regards to the interpretation
of the word “execution” as stipulated
in section
129(4)(b) of the National Credit Act.
[2]
The
lis
between
the parties is as a result, been brought to an end. For purposes of
the
lis
between
the parties in
casu,
determination
and interpretation of the word “execution” as worded in
section 129(4)(b) is
moot.
[3] The applicant is
not interested in such determination but for the relief sought as
encapsulated in the draft order. Where disputes
between the parties
have been settled, there exists no discretion for the court to
exercise.
[4] The matter has
been set down for three days. Both parties engaged services of two
counsel. The complexity of the matter required
such employment of two
counsel.
[5] Having heard
counsel for both the applicant and the respondent, I find that the
order of costs of two counsel is justified.
I therefore make the
following order:
Order:
The draft order
marked “X” as handed up by the applicant is hereby made
an order of court
A.M.L. Phatudi
Judge of the High
Court
On behalf of the
applicant: Bosman Smit & Pretorius Attorneys
C/O Du Preez
Attorneys
The Works
258 Brooklyn Road
Menlo Park
Pretoria
Adv. A.J.H. Bosman
Adv. C.J. Bosman
On behalf of the 1
st
Respondent: PDR Attorneys
Hatfield Bridge
Office Park
c/o Richard & Stanza
Bopape Street
Hatfield
Pretoria
Adv. P.G. Cilliers
SC
Adv. J.L. Myburgh
THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
On the 3rd day of
February 2015 before Phatudi J
CASE NO: 12203/2010
In the matter
between:
NGOANATSOMANE
NOAH
NKADIMENG
...................................................
Applicant
/ Judgment Debtor
and
FIRSTRAND BANK
LIMITED
............................................................
First
Respondent / Judgment Creditor
THE SHERIFF,
POLOKWANE
........................................................................................
Second
Respondent
ANDRE
PIENAAR
.................................................................................................................
Third
Respondent
MARITZA
PIENAAR
..........................................................................................................
Fourth
Respondent
REGISTRAR OF
DEEDS,
PRETORIA
................................................................................
Fifth
Respondent
After hearing
counsel for the Applicant and counsel for the Respondent the
following is ordered:
1. It is declared
that the Credit Agreement, comprising:
1.1 The mortgage
bond agreement (B30194/08); and
1.2 The Home Loan
Agreement, dated 27 October 2007 (Annexures “A” and “B”)
to the Applicant is reinstated
in terms of
Section 129(3)
of the
National Credit Act 34 of 2005
;
2. The judgment
granted by the above Honourable Court on 19 October 2010 and the
warrant of attachment ceased by operation of law
to have any force or
effect;
3. It is declared
that the sale in execution of the property by public auction on 12
March 2014 to the Third and Fourth Respondents
was invalid and that
the said sale in execution of the property is set aside;
4. The First, Second
and Fifth Respondents are restrained from causing transfer of the
property into the name of the Third and Fourth
Respondents;
5. The First
Respondent is ordered to pay the costs of the application inducting
costs of two counsel.
BY ORDER
THE REGISTRAR