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[2014] ZAGPPHC 403
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Sheriff of the High Court, Vanderbiljpark v Mukwena, In re; First Rand Bank Limited v Maqekeni (68847/2012) [2014] ZAGPPHC 403 (12 March 2014)
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
No: 68847/2012
DATE:
12 MARCH 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
THE
SHERIFF OF THE HIGH COURT,
VANDERBILJPARK
............................................................
Applicant
and
KENNETH
MUKWENA
................................................................................................
Purchaser/
Respondent
In
re:
FIRST
RAND BANK
LIMITED
...............................................................................................................
Plaintiff
and
WILLIAM
MZAEFÁNE
MAQEKENI
..................................................................................................
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
This is an application in terms of rule 46(11) for the cancellation
of a sale in execution.
LEGAL
PRINCIPLES:
[2]
I will first of all deal with the legal principles pertaining to the
relief claimed herein. Rule 46(11) reads,
inter
alia,
as
follows:
"46(
11)(a) if a purchaser fails to carry out any of his or her
obligations under the conditions of sale, the sale may be cancelled
by a judge summarily on the
report
of the sheriff
conducting
the sale, after due notice to the purchaser, and the property may
again be put up for sale.
(b)
The purchaser shall be responsible for any loss sustained by reason
of his or her default, which loss may, on the application
of any
aggrieved creditor whose name appears on the said sheriffs
distribution account, be recovered from him or her under judgment
of
the judge pronounced summarily
on
a written report
by
the said sheriff, after such purchaser shall have received notice in
writing that such report will be laid before the judge or
such
purpose.
(c
)
....."
(own emphasis)
[3]
In
Sheriff,
Habisa and Nongoma v Shobeda
2009
(6) SA 272
KZP, the court held that:
-
the rule does not contemplate a formal application by the sheriff;
-
the rule does not empower a judge to grant a cost order in favour of
the sheriff and
-
the question of loss can only be determined once the court is in
possesion of a report of the sheriff
FACTS:
[4]
The applicant seeks an order in the following terms:
"1.
The Sale in Execution which took place on
8th
November 2013
in
respect of the property described as
ERF
[...] L[...] TOWNSHIP, REGISTRATION DIVISION: I.Q. PROVINCE OF
GAUTENG, MEASURING: 223 (TWO HUNDRED AND TWENTY THREE) SQUARE
METRES,
HELD BY DEED OF TRANSFER T[
..]cancelled;
2.
The Purchaser be held liable for the loss sustained by reason of
their
(sic!)
default,
which loss may be recovered by the Applicant from the Purchaser by
order hereof;
3.
That the purchase be ordered to pay the cost of this application."
[5]
As stated
supra,
the
applicant did not file a report in terms of the provisions of rule
46(11)(a), but chose to appoint attorneys to launch the present
application. The course chosen by the applicant has resulted in the
incurring of unnecessary costs, which costs will not form part
of any
loss to be recovered from the respondent.
[6]
No facts are contained in the application to justify an order in
terms of rule 46(11 )(b) and consequently I am not in a position
to
grant the relief claimed in prayer 2 of the notice of motion.
ORDER
I
make the following order:
1.
An order is granted in terms of prayer 1 of the notice of motion.
2.
Prayer 2 is postponed
sine
die.
3.
Prayer 3 is dismissed.
JANSE
VAN NIEUWENHUIZEN J
JUDGE
OF THE NORTH AND SOUTH GAUTENG HIGH COURT
PRETORIA