Kaleni v Transkei Development Corporation and Others

• Jurisdiction: South Africa
• Judge: Miller J
• Judgment Date: 02 May 1996
• Citation: 1997 (4) SA 789 (TkS)
• Docket Number: 2108/95
• Hearing Date: 02 May 1996
• Counsel: M R Madlanga for the applicant No appearance for the first, third and fourth respondents G J J Beukes for the second respondent
• Court: Transkei Supreme Court

Miller J:

This Court issued a rule nisi calling upon the respondents to show cause why an order in the following terms should not be granted: D

1.

That the sale in execution conducted by the third respondent on 16 November 1995 be declared invalid and set aside.

2.

That the third and fourth respondents be interdicted and restrained from effecting transfer of the immovable property known as erf 154, situate in the municipality and E district of Engcobo, to the second respondent or to any other person.

3.

That the first respondent pay the costs of this application and the remaining respondents only pay such costs in the event of opposing this application.

The application is opposed by the second respondent. F

It is common cause that on 4 August 1994 the first respondent obtained judgment by default against the applicant for payment of the sum of R135 539, and that pursuant thereto immovable property belonging to the applicant, being situate at erf 154, Engcobo (hereinafter referred to as 'the premises'), was sold in execution by the third respondent to the second respondent on 16 November 1995 for the sum of R295 000. G

The premises were placed under judicial attachment by the third respondent on 25 May 1995 and the sale in execution was duly advertised in the Daily Despatch newspaper, the Government Gazette and by means of a notice of sale on the notice board of the local H magistrate's court. In all such advertisements the premises were described as being a

'certain piece of land being erf No 154 situate in the municipality and district of Engcobo, Tembuland, measuring two thousand seven hundred and thirteen (2 713) square metres'.

The applicant contends that the sale of the premises falls to be set aside on two grounds, I namely that the notices which advertised the sale in execution are defective and irregular in that they failed to give an adequate description of the premises upon which there are improvements consisting of five shops and that the third respondent did not comply with the provisions of Rule 46(3) of the Rules of Court in that a written notice of the sale was not served upon her or the fourth respondent. J

Miller J

Rule 46(7)(b) provides as follows: A

'The execution creditor shall, after consultation with the sheriff, prepare a notice of sale containing a short description of the property, its situation and street number, if any, the time and place for the holding of the sale and the fact that...