RULE 46A – AMENDING THE RESERVE PRICE
Changing Tides 17 (Pty) Ltd NO v Kubheka [2022] ZAGPJHC 59
Four cases were placed before the Judge in chambers. The purpose of the applications was to seek, in terms of Rule 46A(9)(c)-(d) the amendment of the reserve price set in terms of the original application for foreclosure. The relief was sought in the absence of the bringing of an application, without resort to a hearing in open court, and without service of the documents on the judgment debtor.
Fisher J discusses Rule 46A and the setting of reserve prices in foreclosure applications; and what should be done if the reserve price is not achieved. The four cases are examples of an attempt to interpret the Rule in a way that allowed for a revisiting of the reserve price with as little trouble and expense to the creditor as possible and with limited regard to the rights of the homeowner.
The cases did not constitute applications and were irregular steps. The Judge declined to entertain them in Chambers or at all and made no order in respect of any of them.
Important guidance is given in a useful court summary at the start of the judgment. This includes that reconsideration of the reserve price should be sought by way of application in open court and not by approach to a Judge in Chambers, as well as the requirements for such an application. There is also useful guidance on the service of foreclosure applications, such as when a tenant or spouse is served.
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NUISANCE FROM LAND OWNED BY STATE
Redefine Properties v Government of RSA [2022] 29258-2021 (GP)
Redefine Properties owns property adjacent to what used to be a vacant piece of land and shares a common boundary. Redefine complains about the condition and human activities on the adjacent property by some unlawful occupiers. It seeks that the national government, the owner of that property, be directed to evict the unlawful occupiers in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), alternatively remove the nuisance. The adjacent property has no access to running water, sewage disposal or any other amenities. Redefine considers the living conditions to be a health hazard, nuisance and fire hazard.
Manamela AJ discusses the risks of Redefine’s tenant cancelling the lease because of the risks; the government’s contentions that the activities are nothing more than common refuse recycling activities prevalent in all central business districts; their contention that the applicants should have approached the City of Johannesburg, the police or the traffic department to lodge a complaint. The court discusses ownership of land, particularly by the State, and the responsibilities that come with it; and nuisance.
The government is ordered to remediate the nuisance on the adjacent property within 60 days and to take reasonable steps to prevent the nuisance from re-occurring in the future.
The government is directed to pay the costs of the application on the scale of attorney and client.
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PREFERENTIAL PROCUREMENT REGULATIONS INVALID
Minister of Finance v Afribusiness NPC [2022] ZACC 4
The Minister promulgated the 2017 Procurement Regulations, in terms of which organs of State may elect to apply a specified list of pre-qualification criteria to advance certain groups, and only tenderers who comply with such criteria would be eligible to tender. Afribusiness sought to challenge the regulations, but the High Court found that the designated groups did not exclude bidders based on race, that the Minister did not act beyond his powers and that the promulgation of the regulations was rational, reasonable, and fair. The High Court dismissed the application. The Supreme Court of Appeal, however, held that the regulations were inconsistent with the Preferential Procurement Policy Framework Act and were thus invalid. The Minister appealed to the Constitutional Court.
Madlanga J,for the majority, discusses the procurement of goods and services by organs of State in terms of s 217 of the Constitution; that it can neither be necessary nor expedient for the Minister to make regulations that seek to achieve that which can already be achieved in terms of s 2(1) of the Procurement Act; and that the Minister cannot arrogate to himself a power that he does not have under the Procurement Act.
The appeal is dismissed.
* Note that Mhlantla J, for the minority, was of the view that the Minister did not act beyond his powers and that the regulations were valid, so would have upheld the appeal.
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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