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[2014] ZAGPPHC 127
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Mthimunye v Sheriff of the High Court Pretoria South West and Another (695/10) [2014] ZAGPPHC 127 (2 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 695/10
DATE:
2 MARCH 2014
In the matter
between:
OSCAR JABU
MTHIMUNYE
..................................................................
APPLICANT
And
THE SHERIFF OF
THE HIGH COURT
..................................
FIRST
RESPONDENT
PRETORIA SOUTH
WEST
LERATO
MASIGO
.............................................................
SECOND
RESPONDENT
IN RE:
ABSA BANK
LIMITED
............................................................................
PLAINTIFF
And
BGF
MARX
...........................................................................................
DEFENDANT
JUDGMENT
BAM J
1. On 25 January
2013 an order was granted by Matojane J in this court, cancelling a
sale in execution that was held by the Sheriff,
first respondent, on
23 August 2012.The applicant now applies for the rescission of that
order.
2. The salient facts
are as follows:
(i) On 23 August
2012, consequent upon a judgment for the execution of immovable
property, situated at 22 Lotus Gardens, at a sale
in execution held
by the Sheriff, the applicant purchased the property.
(ii) On 25 January
2013, upon an application by the Sheriff in terms of the provisions
of Rule 46(11) for the cancelling of the
said sale in execution, such
order was granted by Matojane J in chambers.
(iii) Subsequently,
on 4 April 2013, the Sheriff held another sale in execution and sold
the property to the second respondent.
3. The sole ground
upon which the applicant based this application is the allegation
that the order for the cancellation of the
sale was erroneously
granted by Matojane J, in that the application by the Sheriff was not
served on him and he had no knowledge
of the process.
4. In my view the
applicant faces the following problems:
(i) On 7 September
2012 a registered letter was posted to the applicant by the attorneys
representing the Sheriff, informing the
applicant that he has failed
to comply with paragraphs 6 and 8 of the conditions of sale, and that
in the event of the applicant
not complying with those conditions
within 7 days, the sale would be cancelled. The applicant admitted
that the document was sent
to the correct address, but denied having
received it. It is however admitted in the second respondent’s
answering affidavit
that the letter was returned to sender.
(ii) The second
respondent, in par 9.4 of her answering affidavit stated that on 4
April 2013 the applicant was present at the second
auction and that
he was aware that the first sale was cancelled. This was admitted by
the applicant.
(iii) Rule 46(11)
provides that a sale may be cancelled by a judge summarily on the
report of the sheriff after due notice to the
purchaser. The Rule
does not provide that the Sheriff should serve the application on the
purchaser. “Due notice” is
clearly sufficient.
(iv) On 7 January
2013 the Sheriff filed the application with the Registrar accompanied
by the required affidavit and supporting
documents, and on 25 January
2013 the application was granted.
(v) No irregularity
pertaining to the application in terms of Rule 46(11) appears from
the papers.
(vi) The applicant
did not state in his founding affidavit that the contents of the
application for the cancellation of the sale
lodged by the Sheriff
was wrong or misleading in any way.
(vii) The letter
dated 15 April 2013, attached as OJM3 to the applicant’s
founding affidavit, addressed by the applicant’s
attorneys of
record to MD Mitchell Attorneys, indicates that the applicant was at
that stage already aware of the cancellation
order granted by
Mtonjane J on 25 January 2013. This is consistent with the
applicant’s admission that he was indeed present
on 4 April
during the second sale and that he was on that day made aware of the
cancellation of the first sale.
5. This application
is apparently brought in terms of the provisions of Rule 42. It is
not accompanied by an application for condonation
or an affidavit
explaining the delay of almost three months. This issue was not
addressed in the applicant’s founding affidavit
at all.
6. Even if the
cancellation of the sale may be considered as an order of court that
can be set aside in terms of Rule 42, contrary
to what was decided by
Sutherland J in the South Gauteng High Court in the matter of
STANDARD BANK v NDLOVU and MNGADI, Case No
33229/2010, (from which
decision I may differ), the applicant failed to establish the
required grounds to succeed with his application.
7. Accordingly I
make the following order:
The application is
dismissed with costs.
A J BAM
JUDGE OF THE HIGH
COURT
28 March 2014