Case Law

IMMOVABLE PROPERTY

1) High Court Cape Town

Case no. 26018/2010

In the matter between:

ABSA Bank Limited (Applicant) V

Sheriff Simon’s Town (Respondent)

Can the bank set off the purchase price and not pay the sheriff where it is the purchaser? No.

2) High Court Pretoria

Case no. 35220/2013

In the matter between:

ABSA Bank Limited (plaintiff) V

Sheriff Roodepoort (Sheriff)

How to prepare a distribution account with a specific reference of S118(3) of the municipal systems Act.

3) Mag Court Mitchells Plain

Case no. 3081/2008

In the matter between:

ABSA Bank Limited V

M A GOOL

Attachment of an immovable does not lapse after 12 months (Mag Court Judgement).

4) High Court Western Cape

Case no. 20806/2010

In the matter between:

ABSA Bank V

Universal Pulse Trading

Termination of auction Sheriff may not, once bidding has begun without reserve terminate auction on oral instructions.

5) High Court Western Cape

Case no. 1150/2015

In the matter between

ABSA Bank limited (Applicant) V

Amber Sunrise Properties (Respondent)

Does the amended rule 46A apply retrospectively? No.

6) High Court Western Cape

Case no. 18088/2015

In the matter between:

Charles Williams (1^st Applicant) V

Sheriff Kuilsriver North (2^nd Respondent)

Does Rule 46A have a retrospective effect?

7) Constitutional Court

Case no. CCT 283/16

In the matter between:

Chantelle Jordaan (1^st Applicant) VS

City of Tshwane Metropolitan Municipality (1^st Respondent)

On the transfer of an immovable, the new owner is not liable for the debts of the previous owner under S118(3) of the municipal systems Act 32 of 2000.

8) High Court Free State

Case no. 905/2018

In the matter between:

D C G Hancock (1^st Applicant) V

Sheriff Bethlehem (3^rd Respondent)

Rule 46A subrule 9(c), (d) and (e) interpretation of reserve price. Has the court the discretion in determining a reserve price.

9) High Court Cape Town

Case no. 15678/2012

In the matter between:

Denver Langenhoven (Applicant) V

Sheriff Simon’s Town (1^st Respondent)

Can the condition of sale be amended after the sale? No.

10) Supreme Court SA

Case no. 604/06

In the matter between:

Desmond Menqa (1^st Appellant) V

Patrick Markom (1^st Respondents)

S66(1A) of the Maj Court Act. Warrant of attachment on immovable is invalid if issued by clerk of the court without judicial oversight.

11) High Court JHB

Case no. 16117/11

In the matter between:

Edkins (Applicant) V

Sheriff JHB South (6^th Respondent)

Can an immovable sold in execution be transferred where the previous owner published a notice of intention to surrender in terms of S (4)(1) of the insolvency Act. 24 of 1936 prior to transfer? No

12) Supreme Court JHB

Case no. 740/12

In the matter between:

Jacobus Petrus Fourie (1^st Appellant) V

Graham Vernon Edkins (Respondent)

Notice of surrender of estate stops transfer.

13) High Court Polokwane

Case no. 2919/2016

In the matter between:

Gert Hendrik (1^st Applicant) V

Sheriff Bochum (2^nd Respondent)

The court can condone a failure- service to the wrong deed’s office-as this failure -non-compliance not prejudice the others.

14) High Court Pietermaritzburg

Case no. 1907/11

In the matter between:

Ismail Hoosen (1^st Applicant) V

Sheriff Chatsworth (3^rd Respondent)

How does the court deal with an immovable where the improvements are not property advertised?

15) High Court East London

Case no. 283/2010

In the matter between:

Lettita Momafaku Ndema (Applicant) V

Sheriff East London (2^nd Respondent)

Rule 31(5)(D) high court rules – Judgement granted by the registrar is void.

16) High Court Pretoria

Case no. 29378/14

In the matter between

Lukas Marthinus (1^st Applicant) V

Sheriff Cullinan (1^st Respondent)

Can a sheriff cancel a sale of an immovable once he has started in the absence of written instructions by the execution creditor? Yes

17) Constitutional Court SA

Case no. 99/08

In the matter between:

Machele (1^st Applicant) V

Mailula (1^st Respondent)

Is the right of housing to a matter to be dealt with by the Constitutional Court? Yes.

18) High Court Pietermaritzburg

Case no. 9880/2013

In the matter between:

Merchantile Bank Limited (Applicant) V

Sheriff Inada (1^st Respondent)

Where there is no reserve and the plaintiff fails or refuses to bid, can the plaintiff set aside a sale on the bases that the accepted bid was too low? No.

19) Constitutional Court SA

Case no. CCT 74/03

In the matter between:

Maggie Jaftha (Appellant) V

Stephanus Schoeman (1^st Respondent)

How do you read S66 (1)(a) and 67 of the Maj Court Act. With section 26 of the SA Constitution.

20) High Court Pretoria

Case no. 12133/2011

In the matter between:

Standard Bank Limited (Plaintiff) V

Natha Denise (Respondent)

Does the registrar have the authority to declare immovable property specially executable? No.

21) Supreme Court Wynberg

Case no. 6787/94

In the matter between:

Shurrie V

Sheriff Wynberg

Sale and execution is valid where a winding-up application is disclosed but no order granted as yet.

22) Supreme Court

Case no. CA520/2003

In the matter between:

Shoprite Checkers (Appellant) V

Sheriff Humansdrop (2^nd Respondent)

Can a sale be subject to the consent of the judgement creditor be in conflict with Rule 46? Yes.

23) High Court Pretoria

Case no. 20773/2016

In the matter between:

Sheriff Palm Ridge (Applicant) V

Mahlodi Mokoena (1^st Respondent)

Can a sheriff cancel a sale where the bidder is unable to perform at the auction? No, the cancelation must proceed to court via a R46(11) application.

24) High Court Cape Town

Case no. 9815/2011

In the matter between:

Sheriff kuilsriver (1^st Applicant) V

The registrar of deeds, Cape Town (1^st Respondent)

Does an immovable attachment issued in the Mag Court lapse after 1 year? It does not lapse after a year if there was no preferent claim.

25) Court Durban

Case no. 1965(4) SA 670 (D)

In the matter between:

Ormerod V

Deputy Sheriff Durban

Rule 45(8) authorities the attachment and sale and execution of a judgement debtors claim against his bank rising out of his relationship with the bank as its customer and no order of court is required for their purpose.

26) High Court Mahikeng

Case no. M 153/2016

Joel Mosenye Makubalo (1^st Applicant) V

Sheriff Rustenburg (2^nd Respondent)

S129(3) of the national credit Act- where an account is settled before the full purchase price is made, the sale may be cancelled.

STATE LIABILITY ACT

1) Constitutional Court SA

Case no. CCT 53/09

In the matter between:

Minister of Justice (Applicant) VS

Dingaan Hendrik Nyathi (Respondent)

How do you attach against the State (State Liability Act).

CCMA/LABOUR COURT

1) Labour Court JHB

Case no. JA94/2015

In the matter between:

CCMA (Appellant) V

Sheriff Kwamhlanga (3rd Respondent)

Section 143 of the labour relations act, does not justify that the registrar of the Labour Court Should issue a writ of execution?

2) Labour Court Cape Town

Case no. C 39/2013

In the matter between:

Cellucity (PTY) LTD (applicant) V

CWU OBO Peters (Respondent)

When does an arbitration award become prescribed? It does not.

3) Labour Court JHB

Case no. J1807/15

In the matter between:

MBS Transport (Applicant) V

Sheriff Kwamhlanga (4^th Respondent)

Does the Labour Court have the jurisdiction to stay writs issued by the CCMA? No.

4) Labour Court JHB

Case no. J89/15

In the matter between:

Windybrow Theatre (Applicant) V

‘Sheriff JHB Central (2^nd respondent)

Does the labour court have jurisdiction to order a former employee to pay back moneys already distribution by the sheriff? No.

SERVICE

1) High Court Grahamstown

Case no. 1072/2020

In the matter between:

Magricor (PTY) LTD (Applicant) V

Border Seed Distributors CC (Respondent)

What is expected on service in terms of Rule 4(1)(A)(V), on cooperation or company.

2) High Court Pretoria

Case no. 13700/2012

In the matter between:

Standard Bank Limited (Plaintiff) V

Caster Transport (1^st Defendant)

Court has pointed out that any person on whom a process has been served must be treated with respect and referred to as Mr, Mrs or Miss and not girl or boy.

3) High Court JHB

Case no. 9130/2011

In the matter between:

First Rand Bank Limited (plaintiff) V

Powell (defendant)

Domicile Service on the outer door, Principle door, gate and main gate.

CONDONATION

1) High Court JHB

Case no. 26048/2014

In the matter between:

Panayioutou Andreas (Applicant) VS

Shoprite Checkers (PTY) LTD

How does the court view an application of condonation.

REVIEW

1) Labour Court SA

Case no. J 820/21

In the matter between:

Symeg Trading Proprietary Limited (Applicant) V

Sheriff Roodepoort South (4^th Respondent)

How does a court deal with a review application?

rescission

1) Labour Court Cape Town

Case no.CW3/2003

In the matter between:

Tony Gois V

Van Zyl

Does a rescission in the labour court stop a warrant? Yes.

2) High Court JHB

Case no. 49918/2009

In the matter between:

ABSA Bank Limited (applicant) V

Hester Maria Botha (Sheriff JHB West) (7^th Respondent)

How to attach a motor vehicle.

3) High Court Pretoria

Case no. A56/2019

In the matter between:

ABSA Bank Limited (Applicant) V

Sheriff Bela-Bela (3^rd Respondent)

How to serve a domicilium process.

4) Constitutional Court

Case no. CCT 03/16

In the matter between:

ABSA Bank Limited (Applicant) V

Christina Martha Moore (1^st Respondent)

How to deal with a fraudulent mortgage.

5) High Court KZN

Case no. 366/2005

In the matter between:

Anand (Applicant) VS

Citibank (1^st Respondent)

Can an attachment of an incorporeal (moneys in a trust account) be attached with an ordinary warrant of execution.

6) Supreme Court

Case no. 1072/2022

In the matter between:

BG Bojosinyane (Appellant) V

Sheriff Michael Smith (1^st Respondent)

Can a sheriff demand a deposit, refuse to release returns pending payment in the absence of authority of S14(7) of the Mag court Act? No.

7) Gauteng Court

Case no. 17119/15

In the matter between:

Erstwhile Tenants V

Lewray Investments

Does a rescission suspend a court order? No see rule 45A

8) Court

Case no. 253/02

In the matter between:

Memory Instiutute SA (Appellant) VS

Albert Hansen (1^st Respondent)

How does an anton piller order work?

9) Supreme Court SA

Case no. 150/2021

In the matter between:

Petrus Johannes Bestbier (1^st Appellant) V

Nedbank Limited (Respondent)

Are trust beneficiaries and their employees entitled to the constitutional safeguards of Rule 46A of the high court? No.

10) Supreme Court SA

Case no. 710/11

In the matter between:

SA Congo Oil Company (PTY) LTD (Appellant) VS

Identityguard International (PTY) LTD (Respondent)

The court considered whether it is a requirement of rule 45(12) that the sheriff should attach a debt in accordance with the procedure set out in Rule 45(8). Yes.

11) High Court Pretoria

Case no. 67151/2013

In the matter between:

Minister of Justice (Applicant) VS

John Herman (1^st Respondent)

This case deals with the naming of jurisdiction and the retirement age of sheriffs.

12) High Court SA

Case no. 21734/02

In the matter between:

Sheriff Boksburg (Applicant) V

Bhekinkoski Mbuyisa (respondent)

Deals with a number of questions regarding deviations of form 21.

13) Court

Case no. 1845/08

In the matter between:

Mccreath V

Wolmarans

Can a Legal practitioner rely on his mistake to cancel a sale in execution? In this case, the mistake was the belief that there was a reserve price. No.

14) Eastern Cape Court

Case no. 1958(2) SA 315(E)

In the matter between:

Van Straten V

Van Niekerk

Deals with attachment of cheques.

15) High Court JHB

Case no. 34819/2013

In the matter between:

Peniel Development (PTY) LTD (1^st Applicant) V

Isak Smolly (1^st Respondent)

An appeal suspends a judgement. A review, recission, correction does not.