IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

							CASE NO: 20806/2010
 
 In the matter between
 
ABSA BANK 							Applicant

and
 
UNIVERSAL PULSE TRADING				1st Respondent 

ANEEN ESTELLE MOSCA				2nd Respondent
THE SHERIFF OF THE HIGH COURT,
MALMESBDRY						 3rd Respondent 

GABRIeL JACOBS VENTER				4th  Respondent
 
IVUBU INVESTMENTS (PTY) LTD			5th  Respondent
 
For the Applicant 
Adv. J.W. Jonker 
Attorney Heyns and Partners
 
For the 1st  to 3rd Respondent 
No appearance
 
For Ihe 4th Respondent 
Adv. L. Zazeraj
Attorney Brits & Mat thee Attorneys
 
For the 5th Respondent
Adv. A.B. Rossouw SC 
Attorney Jaco Roos Attorneys

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 20806/2010
In the matter between:

and
UNIVERSAL PULSE TRADING FIGURES 45

■

Judgment handed down on 8 June 2011
S Olivier AJ

1. This is an application where the applicant seeks the cancellation of a sale in execution of immovable property by the third respondent, the Sheriff of the High Court, Malmesbury, to the fourth respondent, Mr Venter. The sale in execution was without reserve.
2. The applicant had instituted action and obtained default judgment on 25 February 2010 against the first and second respondents for payment of the amount of R3 176 585,57 and declaring their immovable property executable.
3. In compliance with Uniform Rule of Court 46(4)(b),  the sheriff was given written instructions to proceed with the sale. The sheriff, pursuant to the provisions of rule 46 of the Uniform Rules of Court, scheduled the sale in execution of the property for 10h00 on 29 July 2010.
4. Prior to the designated date for the sale in execution, the applicant and fifth respondent concluded a deed of sale in terms of which the property was sold to the fifth respondent for an amount of R1,6 million.
5. Due to a miscommunication within the offices of the applicant's, the sale in execution was not cancelled and it duly commenced at 10h00 on 29 July 2010. The applicant had, in fact, also instructed an attorney (Mr Roothman) to represent the applicant at the auction and mandated him to bid up to an amount of R1,366 million. After the commencement of the auction mr Roothman in fact made a bid of R1 million. At that stage he was phoned by a representative of the applicant (Ms Kiewiet) and instructed to cancel the sale. Mr Roothman realized that he could not do so and suggested that Ms Kiewiet rather instruct the sheriff herself and handed the phone to the sheriff. The sheriff informed Ms Kiewiet that the bidding had already commenced and that he had received a bid and therefore the auction had to proceed. Ms Kiewiet thereafter instructed Mr Roothman to keep on bidding in terms of his mandate. The final bid was granted in favour of the fourth respondent.

'When the sheriff attaches and selis the property in execution he does not act as an agent of the judgment creditor or the judgment debtor but does so as an executive of the law."

11. What then is the position of the sheriff, where bidding has already commenced, when he is instructed to terminate the auction? It seems to me that the answer is found in the common law - as there is no provision to be found either in the Uniform Rule of Court 46, or in the conditions of sale.

"Where the sale is without reserve, the putting up of the article is the offer; each bid is an acceptance. The agreement of sale thus concluded is subject to a condition that if a higher bid be not made within a reasonable time, the sale shall be effective. The condition is negative and suspensive, failing if a higher bid be made, and being fulfilled if no higher bid be forthcoming. And the knocking down or fall of the hammer is merely a declaration by the seller's agent (the auctioneer) that the suspensive condition is fulfilled and that the contract is complete.

"An auction is a form of competitive bargaining with the object of a contract of sale resulting carried out in accordance with certain rules. These rules are the conditions of sale. They are framed by the seller to represent that the terms upon which he is prepared to submit his property to competition. They are, so to speak, the rules of the game and they bind all the players."

16. The inescapable conclusion, in my view, is that it was no longer open to the sheriff to stop the auction.

18. In my view the sheriff was quite correct in refusing to accede to the request directed at him by the applicant.

"Rule 46(4) provides for the execution creditor to issue written instructions to the sheriff to proceed with a sale. Once that instruction is carried out or discharged, the force of the instruction is spent. What remains for the execution creditor is only the right to receive proceeds of the sale in execution. Nothing empowers him to withdraw such executed instruction, and the sheriff therefore did not act in breach of rule 46(4)."

25. In the premises the interim interdict falls to be discharged and the application to be dismissed with costs, which costs are to include costs which previously stood over or were reserved.