Hiralal v Naicker and Another

• Jurisdiction: South Africa
• Judge: Ntshangase J
• Judgment Date: 09 September 2008
• Citation: 2009 (1) SA 636 (D)
• Docket Number: 11974/2006
• Hearing Date: 21 May 2008
• Counsel: HDD Naidoo for the applicant. HRG Mossop for the first respondent. HJF Nicholson for the second respondent (counter-application).
• Court: Durban and Coast Local Division

Ntshangase J: C

[1] The applicant, in what I shall refer to hereafter as the main application, seeks an order directing the first and second respondents and all other persons who occupy through them to vacate the property situated at 36 Courtown Crescent, Erf 79, Avoca Hills, Registration D Division FU Province of KwaZulu-Natal (the property), failing compliance their eviction from such property.

[2] The first and second respondents oppose the application and, in a counter-application, seek an order interdicting and restraining the first respondent from selling, disposing of or in any way encumbering the E property which, they allege, was transferred in improper circumstances by the third and fourth respondents to the applicant (in the main application), the first respondent in the counter-application, be directed to do all things necessary 'to cancel the transfer of the property from the second respondent (sic) to the first respondent', and 'that the first, third and fourth respondents be and are hereby responsible for all costs F pertaining to the cancellation of the transfer of the property from the second respondent (sic) to the first respondent', and to pay the costs of the counter-application jointly and severally.

[3] The counter-application is opposed by the first as well as the second respondent, hereafter referred to as 'Ithala', on the basis that the G applicant has no locus standi to seek the relief he desires, and that the fourth respondent (the sheriff), as the proper person in terms of clause 7(a) of the conditions of sale of the property, read with rule 46(11) of the Uniform Rules of Court, to cause the sale to be cancelled for failure to comply with contractual obligations, did not do so, and that since the H first respondent had performed in terms of a valid and a binding contract, the property had already been sold and properly transferred and registered in his name.

[4] At the outset of proceedings counsel agreed that the counter-application be dealt with first, as the decision on the main application I rests thereon; if the counter-application succeeds or fails the main application in turn would fail or succeed.

[5] The basis for the relief claimed on the counter-application is the failure of the sheriff to cancel the sale when his entitlement to continue with it had been terminated by instruction from Ithala, the execution J creditor in the matter; alternatively, that as at 12 April 2006 the sheriff

Ntshangase J

did not have the written instructions from Ithala to proceed with the sale, A which was in breach of the provisions of rule 46(4) of the Uniform Rules of Court; and that the guarantee belatedly put up by the first respondent to secure the balance of the purchase price of the property was an occurrence in breach of the conditions of sale.

The sheriff's failure to cancel the sale and the effect of rule 46(4) B

[6] The applicant became owner of the property when he purchased it in 2003. This matter arises from its sale by the sheriff to the first respondent on 3 March 2006 following its attachment by writ issued on 23 August 2004 pursuant to a default judgment granted against the applicants in case 11347/2004 as a result of mortgage bond foreclosure proceedings by C Ithala against the applicants. On 15 June 2006 the property was registered in the name of the first respondent.

[7] It came to the knowledge of the applicant when he consulted one Mr Khumalo of Ithala, that the first respondent was the nominated D purchaser in respect of the property and that the first respondent had not furnished the requisite bank or building society guarantee to secure the balance of the purchase price within the period stipulated in clause 6(a) of the conditions of sale in execution. In another consultation of the applicants with one 'Mr Rudi Brunzlaff' (Rudi), the 'Head: Legal' of Ithala, an undertaking was made by Rudi in terms whereof Rudi E communicated to Nonhlanhla, also of Ithala:

Please instruct Ngidi & Ass to request the sheriff to cancel the sale in execution as the purchaser did not comply in terms of the conditions of sale.

Subsequent thereto, on 12 April 2006, the attorneys Ngidi-Gcolotela-Peter F Incorporated wrote to the sheriff to instruct the sheriff 'to urgently attend to the cancellation of the sale which took place on the 3rd March 2006'. It is not disputed that the sheriff received such communication. He subsequently received a letter from attorneys Bux and Associates on 19 April 2006 which in part reads:

We accordingly undertake to pay over the balance of...