South Africa: Western Cape High Court, Cape Town

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Benjamin v Leisengang and Another (27987/2010) [2011] ZAWCHC 244 (27 May 2011)

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JUDGMENT DELIVERED ON THIS 27^th DAY OF MAY 2011

FORTUIN, J: INTRODUCTION:

[1] This is the return day of a rule nisi granted by Fourie J on an urgent basis on 31 December 2010.

[2] The rule nisi reads as follows:

"1. This application is heard as a matter of urgency as contemplated by the provisions of Rule 6 (12) and that the applicant's failure to comply with the Uniform Rules of this Honourable Court with regard to service, lime periods and forms is condoned.

2. That a rule nisi be issued in terms of which the respondents and or any other interested party are called upon to appear before this Court on Tuesday, 8 February 2011 at 10hOO, or so soon thereafter as counsel may be heard to give reasons, if any, why a final order should not be granted in the following terms:

2.1 interdicting and restraining the second respondent from evicting the applicant, and Hesmadin Hassan Sonday ("Sonday") and all other occupiers residing at Erf 158518, Cape Town at Claremont, more commonly known as 9 Durham Road, Harfield Village, Claremont, Cape Town (the Property) in terms of the order granted by the magistrate's court for the district of Wynberg under Case no 18377/10 on 11 October 2010, alternatively on 26 November 2010, pending the finalization of the proceedings to be brought by the applicant and, or, alternatively by Kamal Paulsen ("Paulsen)" to:

2.1.1. reviewing and setting aside the steps taken by Paulsen, the applicant and Sonday to alienate and effect transfer of the Property to the applicant and Sonday,

2.1.2. reviewing and setting aside the steps taken by FirstRand Bank Limited, the applicant and Sonday to lend such monies to the applicant and Sonday

1166/2008. It is further common cause that the property was sold in execution to the first respondent in January 2010.

[12] It is the applicant's case that the sale in execution is null and void, because it violates the principle of legality and the Sherriff, therefore, had no authority to transfer ownership of the property to the first respondent, who did not acquire ownership despite registration of the property in his name.

[13] The first respondent's case is that the property was transferred to him on 14 June 2010 and that he is a bona fide purchaser and therefore s70 of the Magistrate's Court Act 32 1944 applies, and the sale is impregnable.

THE SALE IN EXECUTION WHICH GAVE RISE TO THE TRANSFER OF THE PROPERTY TO THE FIRST RESPONDENT

[14] During November or December 2009, the second respondent left a notice at the Property which stated that the Property was to be sold in a sale in execution (the second Sale in execution) on 21 January 2010

[15] The applicant submitted that all the preceding transactions were fraudulent and the interdict should be made final to allow him to show that the basis on which the sale of execution was granted was unlawful.

URGENT APPLICATION IN THIS COURT

[16] The first respondent submitted inter alia that:

1.3.3 declaring the Property to be executable.

1.4. review and set aside the sale of the Property to the first respondent on Thursday. 21 January 2010,

1.5. review and set aside the transfer of the Property from the name of the applicant and Sonday to the first respondent on 15 June 2010,

1.6. review and set aside the Order of the Magistrate's court for the district of Wynberg on 11 October 2010, alternatively on 26 November 2010 under Case no 18377/2010.

2. A copy of this judgment is to be served on First Rand Bank Limited

3. The proceedings contemplated in prayer 32 1 above shall be instituted by the applicant and or by Kamal Paulsen not later than 20 (twenty) court days from the date of this order.

4. The first respondent is to pay the applicant's costs of this application.

FORTUIN, R