Absa Bank Ltd v Van Eeden and Others

• Jurisdiction: South Africa

Absa Bank Ltd v Van Eeden and Others
2011 (4) SA 430 (GSJ)

2011 (4) SA p430

Citation	2011 (4) SA 430 (GSJ)
Case No	49918/2009
Court	South Gauteng High Court, Johannesburg
Judge	Willis J
Heard	October 28, 2010; January 19, 2011; March 10, 2011
Judgment	March 22, 2011
Counsel	G Meyer for the applicant.; No appearance for the first to sixth respondents.; F Saint for the seventh respondent.

Flynote : Sleutelwoorde D

E Execution — Sale in execution — Notice — Motor vehicle — Sheriff must give notice to 'title holder' and 'owner' as defined in National Road Traffic Act 93 of 1996.

Headnote : Kopnota

A sheriff must give notice of the intention to sell a motor vehicle in execution to both the 'title holder' and 'owner', as defined in the National Road Traffic Act 93 of 1996. F (Paragraph [39] at 439F.)

Cases Considered

Annotations:

Reported cases

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) (2005 (1) BCLR 78): G referred to

Jones and Others v Trust Bank of Africa Ltd and Others 1993 (4) SA 415 (C): referred to

Joosub v JI Case SA (Pty) Ltd (now known as Construction & Special Equipment Co (Pty) Ltd) and Others 1992 (2) SA 665 (N): referred to

Jubb v Sheriff, Magistrate's Court, Inanda District, and Others; Gottschalk v Sheriff, Magistrate's Court, Inanda District, and Others H 1999 (4) SA 596 (D): referred to

Kaleni v Transkei Development Corporation and Others 1997 (4) SA 789 (TkS): referred to

Menqa and Another v Markom and Others 2008 (2) SA 120 (SCA): considered

Messenger of the Magistrate's Court, Durban v Pillay 1952 (3) SA 678 (A): referred to I

Progress Shippers (Pty) Ltd v Van Staden 1963 (1) SA 87 (T): referred to

Rossiter and Another v Rand Natal Trust Co Ltd and Others 1984 (1) SA 385 (N): referred to

Sookdeyi and Others v Sahadeo and Others 1952 (4) SA 568 (A): dictum at 571H – 572B applied J

2011 (4) SA p431

South African Broadcasting Corporation v Avusa Ltd and Another 2010 (1) SA 280 (GSJ): A referred to

Sowden v Absa Bank Ltd and Others 1996 (3) SA 814 (W): referred to

Standard Bank of South Africa Ltd v Prinsloo and Another (Prinsloo and Another Intervening) 2000 (3) SA 576 (C) ([2000] 1 All SA 145): referred to

Trust Bank of Africa Ltd v Imperial Garage and Filling Station 1963 (1) SA 123 (A): referred to B

Van der Walt v Kolektor (Edms) Bpk en Andere 1989 (4) SA 690 (T): referred to.

Statutes Considered

Statutes

The National Road Traffic Act 93 of 1996, s 1: see Juta's Statutes of South Africa 2009/10 vol 4 at 2-272 – 2-273. C

Case Information

Application for the setting-aside of a sale in execution.

G Meyer for the applicant.

No appearance for the first to sixth respondents. D

F Saint for the seventh respondent.

Cur adv vult.

Postea (March 22). E

Judgment

Willis J:

[1] The applicant has approached the court by way of motion proceedings for an order setting aside the sale in execution held on 14 September 2009 in terms of which a 2007 model Nissan X-trail 2.5 SEL (R55) was sold to the fifth respondent, Langlaagte Truck & Car CC (Langlaagte). F The applicant also seeks an order that Langlaagte return the vehicle to the applicant against payment, by the seventh respondent, the sheriff, to Langlaagte, of the moneys which Langlaagte had paid to the sheriff at the sale in execution. Both the applicant and the sheriff have made it clear that they consider this case to be one of critical public importance. G

[2] The execution creditor and debtor have also been cited as respondents, as have the Minister for Safety and Security, the National Commissioner of the South African Police Service, and the City of Johannesburg (Metropolitan Police Department, Police Administration and Licensing Services), by reason of their potential interest in the matter. H The applicant has been explicit in its desire that this should be treated as a test case. Of the respondents, only the sheriff opposed the relief sought. Her defence was that she or her deputy had fully complied with the Magistrates' Courts Rules relating to the sale in execution, and had done all that could reasonably have been expected of them, in terms of taking steps to safeguard the interests of persons such as the applicant. The I matter was referred to oral evidence. On 10 March 2011 I granted the order which appears at the end of this judgment. I indicated that I would deliver my judgment, giving my reasons later. These are they.

[3] The applicant is the owner of the vehicle. In August 2007 in Roodepoort the applicant entered into an instalment sale agreement with J

2011 (4) SA p432

Willis J

A Lynette van Eeden, the first respondent, in terms of which it sold the vehicle to her. The transfer of ownership of the vehicle from the applicant to the first respondent was subject to the suspensive condition that the first respondent pay the applicant the full amount owing in terms of the agreement. The first respondent failed to maintain regular monthly B instalments, as was required in terms of the agreement.

[4] The applicant served a notice in terms of s 129 of the National Credit Act 34 of 2005 (the NCA) upon the first respondent on 6 August 2009. The first respondent having failed to respond to the notice, the applicant issued summons against her for the usual relief in such instances, which C included confirmation of the cancellation of the agreement and the return of the vehicle to the applicant. The applicant was awaiting default judgment against the first respondent when the sheriff sold the vehicle to the fifth respondent at a sale in execution, for R69 500. The execution creditor was not the applicant, but the sixth respondent, who had instituted action against the first respondent in the Randburg magistrates' D court and obtained judgment against her.

[5] In her answering affidavit, the sheriff outlined the following sequence of events: (i) the sheriff's office received a letter from an attorney, acting on behalf of the judgment creditor, on 8 July 2009, in which the sheriff was instructed to proceed to attach property of the first respondent, the E judgment debtor, and to sell same in execution; (ii) a copy of the warrant of execution was attached to the letter, as well as a rule 38 indemnity; (iii) the letter addressed to the sheriff pertinently required that the sheriff proceed to the first respondent's premises to effect an attachment and remove any vehicles situated thereat; (iv) although the first respondent F had chosen 17 Moray Street, Bryanston, as her domicilium citandi et executandi, the sheriff's deputies, as instructed by the execution creditor, went to 88 Maluti Drive, Northcliff, where they did not speak to or encounter the first respondent, but someone else, one Rudie de Wet, from whom they demanded payment to satisfy the writ; and (v) Mr De Wet G indicated that he was unable to pay the amount claimed, whereupon the deputies attached three vehicles, including the one which has given rise to this application.

[6] During the hearing of oral evidence, both Mr Sarel van Deventer, the deputy director, vehicle registration and licensing for the Gauteng H provincial government, employed in the department of roads and transport, and Mr Karlie Heidt, the head of licensing in the department of transport in the City of Johannesburg, testified on behalf of the applicant.

[7] Messrs Van Deventer and Heidt testified that the document upon I which the sheriff had relied in her answering affidavit was one which was used to obtain a clearance certificate from the South African Police Service. This certificate would merely indicate that there had been no reports to the police that the vehicle had been stolen or robbed. They confirmed that their official computerised records had a register, for all licensed vehicles in the province and the city, respectively, of the 'title J holder' (the person whom lawyers would ordinarily call the owner — ie a

2011 (4) SA p433

Willis J

person in the position of the applicant), as well as the 'owner' (the person A whom lawyers would normally call the bona fide possessor, the person who drives around in the vehicle as if owner and who is looked to for the payment of fines, licences, etc). I deal with the definitions of 'owner' and 'title holder' in the National Road Traffic Act 93 of 1996 in paras [20] and [21] below. B

[8] These two witnesses said it would be a simple matter for the sheriff or her deputies to apply to the respective departments in both the province and the city, on a standard form, for information as to the 'title holder' and the 'owner' of a vehicle. This is provided for in terms of reg 64 of the prevailing regulations promulgated in terms of the National C Road Traffic Act. The fee was small — about R60. They said they were confident that their departments would be willing to negotiate sensibly with the sheriffs for some kind of fair and equitable system to provide access to this information, such that the sheriffs would not be left 'out of pocket'. D

[9] They both emphasised that it was of the utmost importance, for the sake of good order in the province and the city, that sheriffs should ascertain such facts, relevant to title, before holding sales in execution, which could result in embarrassment, inconvenience and financial loss for entirely innocent parties. E

[10] The 'police clearance certificate', which was issued in respect of this vehicle on 21 September 2009, contains disturbing inaccuracies and glaring omissions. This certificate was issued in response to the sheriff's request for...