REPUBLIC OF SOUTH AFRICA

IN   THE   HIGH   COURT   OF   SOUTH   AFRICA,
                GAUTENG   LOCAL   DIVISION,   JOHANNESBURG

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

      ……………………..              ………………………...
                DATE			 SIGNATURE

                                                 CASE NO: 2009/3673

In the matter between:

THE SHERIFF OF THE HIGH COURT,

JOHANNESBURG EAST	                                                      Applicant                                                  

And

CHETTY: NAYANDRAN						First Respondent

CHETTY: LYNETTE MUNSAMI					Second Respondent

CHOPDAT: HABEEBAH						Third Respondent

FIRSTRAND BANK LIMITED (trading inter alia as 

FNB HOME LOANS) (formerly FIRST NATIONAL BANK

Of SOUTHERN AFRICA LIMITED)				Fourth Respondent

IN RE:

FIRSTRAND BANK LIMITED (trading inter alia as

FNB HOME LOANS (formerly FIRST NATIONAL BANK

OF SOUTHERN AFRICA LIMITED)

And

CHETTY: NAYANDRAN						First Defendant

CHETTY: LYNETTE MUNSAMI					Second Defendant
							     
	   __________________________________________________________           ____

                                     J U D G M E N T ______________________________________________________                 _____

MBONGWE, AJ

[1]	The applicant, who is the Sheriff and officer of this Court, launched this
application in terms of the provisions of Rule 46 (11) of the Rules of the Court 
and seeks an order cancelling a sale in execution of an immovable property
that was concluded on the 23rd January 2014 between him and the third 
respondent. He also seeks ancillary relief, inter alia, an order authorising him
to retain the deposit of R46 100.00 paid by the third respondent for the
purpose of recouping costs incurred on an attorney and own client scale as
well as for the settlement of amounts that may be due to other parties
consequent to the cancellation of the sale.

[2]	This application comes before this Court unopposed owing to the third
respondent’s failure to serve and file an answering affidavit subsequent to his
service and filing of a notice of opposition on the 23rd May 2014. The applicant
has cited three other respondents: the first and second respondents, who 
are the erstwhile owners of the property concerned and judgement debtors,
and the fourth respondent, the bank in whose favour a mortgage bond over 
the property was registered in 2007 and the judgement creditor. There are no
costs sought against the first, second and fourth respondents. It is alleged 
that the fourth respondent waived its right to service of this application on it.

[3]	Prior to considering the merits of this application, I deem it necessary, in the 
	light of the circumstances of this case, to reiterate the purpose and intention 
           of the provisions of Rule 46(11). These are to expedite the sale of attached 
	immovable property primarily for the benefit of the judgement creditor and 
	other interested parties. While it is not the purpose of this rule, an expeditious 
	sale of attached immovable property may incidentally curtail a continued 
           growth of  the  financial burden already faced by the judgement debtor in
           respect of the property.

[4]	In considering an application in terms of Rule 46(11), the Court is reliant on 
	the report by the Sheriff. Consequently, it is imperative that the Sheriff 
	discloses all relevant facts in the founding affidavit particularly where, as is the
case here, orders for the cancellation of prior sales had been granted. In this 
regard it is noted that more often than not the Sheriff, amongst the prayers 
sought, seeks an order authorising him to retain the deposit that had been 
paid by the purchaser for the purposes already stated above. The Court will 
naturally be reluctant to grant any subsequent application in terms of Rule 
46(11) unless the Sheriff :

4.1	has declared in the founding affidavit that he had served the previous 
cancellation order on the respondent affected thereby and attached 
proof of such service; 

           4.2	has declared and attached all relevant proof, including a taxed bill of 
                  	costs, of the costs he had deducted from the deposit he had previously 
                  	retained, where the sale concerned had occurred more than twelve 
                  	months prior to the one sought to be cancelled or  where another sale 
                  	had been concluded prior to the lapse of the period of twelve months;
  
          4.3	has attached  proof of payment of any balance due to the previous
                  	respondent (purchaser).

        It follows that an application for an order cancelling a sale of immovable 
        property in terms of Rule 46(11) will not be granted unless the Sheriff can show 
        that he is not keeping more than one deposit that had been paid in respect of 
        the same property.

[5].	Although in respect of the previous applications in this case the Court had  
        	granted only orders of cancellation of the sales in execution, but remained 
silent on the prayers for the retention by the applicant of the deposit he had 
received, copies of  those orders should have been served on the parties 
affected thereby for them to  appreciate the process and be able to follow up 
on the balance of the deposits they had paid to the Sheriff.

[6]	Subsequent to the fourth respondent obtaining a default judgment against
       	the first and second respondents in June 2010 for the payment of the total 
       	balance due on the property in the sum of R1 463 044.82 and an order 
       	declaring the property described as Portion 1 of Erf 280 Lombardy East 
       	Township, Registration Division I.R, The Province of Gauteng measuring
       	2024m2 and held under Deed of Transfer T104560/2007 specially executable, 
       	the applicant eventually attached the property on the 15 February 2011.

[7]	The applicant has alleged that he had published the notices of sale in 
      	execution of the immovable property by public auction scheduled for the 25th 
      	January 2014 in both the Government Gazette and the Citizen Newspaper 
      	(Paragraph 11 of the founding affidavit), but no proof of such publications is
      	attached to the founding affidavit. The property was sold to the third 
      	respondent on the 23rd January 2014. The relevant conditions of sale now  
      	sought to be cancelled were signed by the third respondent on the 23rd 
      	January 2014 and by the applicant seemingly on the 3rd January 2014. 
      	Further, the allegations in paragraphs 10 and 11 of the founding affidavit 
      	are misleading for creating a false impression that  the sale to the third 
      	respondent was the first since the property was attached on  the 15th February 
      	2011. Documentation in the court file, which include previous cancellation 
      	orders, show that this particular property had been sold at least thrice since its 
      	said attachment and prior to it being sold to the third respondent as follows:

7.1	sold to a Lebea V.T on the 4th November 2011. There is no document 
	in the file showing what the purchase price was nor the amount of the 
           deposit that was paid. However, the fact that this particular sale was 
           cancelled by an order of this Court on the 13th December 2011 
           suggests that a valid agreement of sale had been concluded and the 
           required 10% deposit  and commission paid ;

7.2	sold to Ingolex Proprietary Limited on the 19th July 2012 for the amount
of R630 000.00 and a deposit of R63 000.00 and the Sheriff’s 
commission paid. This sale was cancelled by an order of this Court on 
7 December 2012 on application by the Sheriff;

7.3	sold to Ismail Dawood Jassat and Muhammad Chothia on the 11th 
		April 2013 for R630 000.00. A deposit of R63 000.00 and the 
		applicant’s commission was paid (Paragraphs 13 and 14 of the then 
		founding affidavit in support of the application for an order for the 
	          cancellation of the said sale). In addition to seeking an order for the 
                     cancellation of that sale, an order was sought for the applicant to 
	          	retain the deposit for the purpose already stated earlier in this 
	          	judgment. There is neither a document showing that this application 
		was ever set down and heard nor a Court Order in the file relating to 
                     	the outcome of the application in this particular instance.

[8]	It is noted that the original court file got lost at some stage and could not be 
traced and that the present file is a duplicate reconstructed by the applicant’s  
attorneys. However, the loss of that file and contents is of no consequence in 
the present application and to the sales referred to in the preceding paragraph 
as they occurred after the duplicate file had been opened.

[9]	Of further and primary concern to this Court is the absence in the court file of 
       	any proof that bills of costs were taxed in respect of the previous applications 
       	and cancellation orders. This is despite the Sheriff’s prayers in those
applications that he be authorised to keep each deposit paid for at least 
       	twelve months or until a subsequent sale of the property. The cancellation 
       	orders in the file were granted longer than twelve months ago and there had
        	been subsequent sales of the property. It is, consequently, uncertain whether 
        	the Sheriff  has ever  accounted fully to the relevant respondents for the 
        	deposits he had retained. I find that this situation cannot be allowed to persist 
        	and ought to be eradicated for it opens the Rule 46(11) procedure to abuse.
For this reason I direct that a copy of this judgment be served on the Board of 
        	Sheriffs.

[10]	In the present application the property was sold to the third respondent on 
        	the 23rd January 2014 for the sum of R461 000.00. A deposit of R46 100.00 
        	together with the Applicant’s commission was paid on the same date 
        	(Paragraph 13 and 14 of the founding affidavit). The balance of the purchase 
        	price in the amount of R414 900.00 was paid by the third respondent on the 
        	26th February 2014 (Paragraph 16).

[11]	The applicant’s ground for seeking cancellation of the sale agreement is the
        	third respondent’s failure to pay the estimated amount of R142 612.00 due
        	to the Municipality as well as the transfer costs of R13 604.00 in terms of the
        	conditions of sale. The applicant further seeks an order authorising him to 
        	retain the deposit of R46 100.00 paid from which to recoup his costs on an
        	attorney and own client scale, inter alia. It is curious that the applicant is silent
        	on how he intends to deal with the balance of the purchase price in the sum of 
        	R414 900.00.

[12]	With regard to payment of the Municipal balance estimated at R142 612.00, I
        	do not believe that the Sheriff has done his best  to comply with his 
obligations in terms of the conditions of sale as he alleges. Stating an 
        	estimated amount in clause 4.8.1 is, in my view, not sufficient particularly 
        	when regard is had to the provisions of Section 118(3) of the Local 
        	Government Municipal Systems Act 32 of 2000 in terms of which the third 
        	respondent becomes liable to pay only the debt due to the Municipality which 
        	was incurred during the period of two years prior to the date the request for a 
        	clearance certificate is made. The estimation by the Sheriff falls short of 
        	meeting the provisions of the said section. It is, in my view, the duty of the 
        	Sheriff or judgment creditor to request a clearance certificate from which the 
        	exact amount owing appears for  inclusion in the conditions of sale as 
required. The importance of establishing the debt to the Municipality and the 
period during which it was incurred was as recently as the 8th September 
2014 reiterated in the judgment of the Gauteng Division of the High Court in 
        	PERREGRINE JOSEPH MITCHELL v CITY OF TSHWANE METROPOLITAN 
        	MUNICIPAL  AUTHORITY, CASE NO. 48313/2013 (unreported). In the result, 
I find that the estimated balance due to the Municipality renders the provisions 
of clause 4.8.1 of the conditions of sale invalid. Thus this application stands to 
fail.

[13]	It is also important in this judgment to state that the alleged yet unconfirmed 
         	waiver by the fourth respondent of the right to be served with this 	
application constitutes non-compliance with the rules especially as the fourth
         	respondent is a major role player in this case.

[14]	Consequent to the findings in this judgment, the following orders are made:

1.	The application is dismissed.

2.	The applicant is ordered to serve a copy of this judgment on the
                   	respondents and, in respect of the third respondent, to also serve 
                   	proof of the exact amount due to the municipality and call upon the 
                   	third respondent to settle such amount and transfer costs within 30 
                   	days from the date of service  on him of this judgment  which date shall 
                   	also serve as the date on which the conditions of sale became effective 
                   	for purposes of determining  any breach of  the conditions of sale.

3.	The applicant is ordered to submit to the Registrar of this Court an 
affidavit with relevant proof relating to the deposits held by him in 
                  	respect of the sales in execution concluded on the 4th of November 
                  	2011, 19 July 2012 and 11 April 2013.

4.	It is ordered that a copy of this judgment be served on the Board of 
Sheriffs.

5. 	The applicant is ordered to pay the costs of this application.

                                 ________________________________        
                    		M. MBONGWE, AJ
 ACTING  JUDGE  OF  THE  HIGH  COURT  OF  SOUTH
 AFRICA, GAUTENG  LOCAL  DIVISION, JOHANNESBURG	

APPEARANCES
Counsel for the Applicant		:   Adv. M. De Oliveira
Attorneys for the Applicant		:   Van Hulsteyns Attorneys, Johannesburg
Date of hearing			:   22nd September 2014
Date of judgment			:   27th November 2014