Case name (full citation)/Legislation:
ABSA Bank v Universal Pulse Trading Figures 45 (Pty) Ltd and Others [2011 (5) SA 80 (WCC)

Area of law:
Sale in execution

Brief facts/summary:
Facts: The Applicant sought to have a sale in execution of immovable property cancelled. The sale in execution was without reserve. The sheriff arranged for the auction and after bidding on the immovable property had commenced, the applicant called the sheriff and instructed them to terminate the auction. At that stage, the sheriff had already received one bid and the sheriff refused to terminate the auction and the property was thereafter sold.

The applicant stated that the sheriff’s failure to cancel the auction when instructed was a ‘reviewable irregularity.’ The applicant went on further to state that the sheriff had acted without any authority, thus rendering the sale in execution irregular and void.

Question asked was whether a sheriff has the power to terminate an auction after commencement?

Olivier AJ, stated that it was not open for a sheriff to do so and that an execution creditor could only stop a sale of execution by written instruction as required by Rule 46(4)(b) of the Uniform Rules of Court.

Further, when a bona fide bid is made at an auction, the advertised conditions of sale create a contractual relationship between the bidder and the auctioneer (the sheriff) to sell the property in accordance with those conditions.

The sale was therefore valid and the application was dismissed with costs.

Importance/value:
A sale of execution may only be cancelled by written instruction from the execution creditor and mere verbal instruction to cancel is insufficient.

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