I bought two farms on a public auction o...

Asked by stevan botma on 22-04-2024 01:07:35
Question posted in the General Law category relating to Eastern Cape

I bought two farms on a public auction on 3 MAY 2022 .The sale in execution was held by HTA Auctioneers under instruction of Absa Bank in terms of a power of attorney  following a settlement agreement for an amount of R6 million that was made an order of the Kimberley High Court on 19 May 2021 and was signed by Absa and the previous owners of the 2 farms namely krugersputtrustees. After the auction before signing the contract I complaint to the auctioneer about the onesidedness of the contract,but he told me that I cannot do anything about it as it was a standard Absa contract and I wil have to sign it. By example,the property is sold voetstoots and the sellershall not be liable for any defects,patent,latent or otherwise in the property.The purchaser agrees that the seller does not make any warranties or representations,whether express or implied,regarding vacant occupation and possession.Absa and the K TRUSTEES were already in ligitation with each other since 2012.I bought the properties with private loans and on 27 May 2022 possession and risk was passed to me.Then the trouble started. The 10 sunpumps became 2. Before the auction the auctioneer told me that the previous owner wil show me the properties,but he only showed me a part of one farm and no animals were in sight. Two weeks after the auction there was 200 cattle,120 sheep , 70 Gemsbok and a lot of Springbok. The trustees do not pay any rent and did not want to sign a loan agreement. Instead they tried to delay the transport of the properties in my name and the attorneys of Absa were also dragging feet. Five months after the auction Absa discovered that the original deed of transport was lost. On 28 November 2022 my attorney gave notice to the trustees that there unlawful occupation wil have to end before 31 Jan 2023 as registration of the properties in my name wil take place before that date. Then the attorneys of the trustees,Martin van Vuuren with the help of Farm Rescue, brought an application that the settlement between the trustees and Absa be set aside on the ground that the principal trustee did not know that he should have told the other trustees that he take a loan at Absa against the trust. That caused that the Deeds Office in Kimberley brought a caveat against the transfer of the properties in my name. On 13 March the caveat was uplifted in the high court and on 24 April 2023 the registration of the properties were done in my name. On 19 April 2024 the case of the trustees to set aside the settlement and my case for eviction was postponed. Is there any chance that I can hold Absa responsible for the financial mess that just dont get an end.

Message from the Lawyer

Posted by Att. Patrick on 22-04-2024 10:54:48

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship.

Unfortunately no, you can't hold ABSA Bank liable for your damages, primarily because ABSA Bank is simply the judgment creditor in the matter who caused the auction to take place.  The auction was held by the sheriff. The sheriff receives the proceeds from the sale and the sheriff signs the transfer documents - not ABSA Bank. The sheriff then distributes the proceeds as per the Court Order, and ultimately ABSA Bank receives some of the money. 

There is no real legal connection between ABSA Bank and the going-ons at the property. 

You will need to wait for the application to set aside the settlement agreement to be determined, and then you must take control of the property. 

Ultimately, you should be earning interest on your deposit that you've given to the sheriff. You should also be earning some interest on the balance of purchase price (if you've paid the balance) to the conveyancing attorneys. So you shouldn't have "lost" out on anything. 

If you eventually get the property, you would benefit from any appreciation in value of the property. 

Your only option (if you want to take it) is to see if you can cancel the sale agreement (which was concluded in the auction) and get your money back. 

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