Naidu v Standard Bank of South Africa Limited

• Jurisdiction: South Africa
• Judge: Madondo DJP
• Judgment Date: 22 December 2017
• Docket Number: 3201/2016
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 09 November 2017
• Citation: 2017 JDR 2080 (KZD)

Madondo DJP

[1]

The applicants seek an order setting aside the sale in execution of a property situated at 33 Howard Avenue, Glenwood (the property), which took place on 16 March 2016.

[2]

The applicants ground their application, firstly, on that they did not receive the notice of sale; secondly, the description of the property in the notice of sale was inadequate and therefore not in compliance with the provisions of Rule 46(7) (b) of the Uniform Rules of Court; and thirdly, that the purchase price for which the respondent sold the property was below its market value, as a consequence, the applicants contend that the sale in execution of the property was invalid.

FACTUAL BACKGROUND

[3]

The applicants are co-owners of the property in question. During 2007 the applicants and the respondent entered into a home loan agreement in terms of which the respondent loaned and advanced to the applicants the amount of R2 052000. In order to secure the debt of the applicants the respondent registered a mortgage bond over the property in its favour.

2017 JDR 2080 p2

Madondo DJP

[4]

The essential terms of the loan agreement were, firstly that the applicants had to repay the loaned amount to the respondent with interest over a period of time in monthly instalments. Secondly, should the applicants fail to pay any amount by due date, the full amount then owing would become due and payable and the respondent would be entitled at its option, to institute proceedings against the applicants for the recovery of the amount owed and for an order declaring mortgaged property executable.

[5]

The applicants failed to make payments in terms of the loan agreement and the respondent issued summons against them. The applicants, notwithstanding the fact that they were defending the matter, consented to judgment on 8 August 2011. As a result, the respondent obtained judgment against them by consent. In terms of that judgment the applicants undertook to pay the full outstanding arrears on or before 8 August 2011, failing which the respondent should proceed with the execution of the judgment, which would include an order declaring the property specifically executable.

[6]

The applicants failed to honour their undertaking. However, during November 2014 the applicant lodged an urgent application for an order staying the sale in execution. The court directed them to bring rescission application within 30 days from the date of the order. The applicant failed to comply with the court order and they eventually abandoned the rescission application. The applicants had last made payment on 18 March 2014 and they remain in occupation of the property. The amount in arrears is R683687-89, and the balance on the mortgage is R2 124 236.69.

[7]

Subsequently a further sale in execution was arranged for 16 March 2016, and on this date the respondent purchased the price at R1 690 000. The respondent did not evaluate the property and they applicants contend that the respondent sold the property for the purchase price which was below its market value. The respondent concedes that the property was not evaluated and avers that that was due to the obstructive conduct of the applicants in that they denied its valuer access on to the property.

2017 JDR 2080 p3

Madondo DJP

[8]

The applicants contend that as there had been non-compliance with the provisions of Rule 46, which according to the applicants constituted a material defect in the process, the sale in execution in question should be declared null and void.

[9]

The respondent alleges that the applicants filed a valuation affidavit without any formal application to court for leave to file such affidavit as envisaged in Rule 6(5)(e). The respondent submits that the court can only allow further affidavits where there is good reason to do so.

[10]

The applicants did not file a replying affidavit and had failed to file a consolidated index. The respondent had therefore taken upon itself to file an index, paginate the papers and place the matter on the opposed roll for hearing.

ISSUE

[11]

The issue, for determination is whether or not the sale in execution of 16 March 2016 was valid.

[12]

The applicants ground their...