Corner Shop (Proprietary), Ltd v Moodley

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Roper J
• Judgment Date: 15 August 1950
• Citation: 1950 (4) SA 55 (T)
• Hearing Date: 27 July 1950

E Roper, J.:

This is an application for the provisional sequestration of the estate of the respondent, who opposes the application, without however filing any affidavits. The applicant company alleges a debt for goods sold and delivered, for which the respondent gave it a cheque which was dishonoured, and in respect of which judgment was F obtained in the magistrate's court at Witbank, the amount due in respect of the debt and costs being £427 4s. 3d. A writ of execution was taken out, and the applicant annexes to its petition three returns of service made by the messenger of the court of the district, and dated respectively the 11th April, 20th April and 22nd April, 1950. The G contents of these documents, which are all made out on similar printed forms, are of a somewhat confusing character. The printed portion of the form records that the messenger

'duly served the annexed warrant . . . . upon the defendant . . . . at the same time informing him of the nature and exigency thereof.'

In addition the documents set out, either in handwriting or in type, H certain instructions given to the messenger by the judgment creditor, and his notes upon those instructions. The return of the 11th April records an instruction in these terms:

'Please attach building, remove car T.W. 39. Debtor has other car. Remove that also. Sell in execution as soon as possible.'

The messenger's note thereupon is.

'Building is property of Mrs. A. P. Moodley. Car T.W. 39 was attached, but defendant informs me that same is on hire purchase agreement from Messrs. Solly's Garage, and he still owes about £500.'

Roper J

The return of the 20th April states that the messenger

'attempted to remove car. Solly's Garage took car back for amount of £700 which was still owing on T.W. 39.'

The return of the 22nd April records as instructions:

'Debtor must deliver T.W. 2521 immediately, failing which lodge charge of obstruction. Advertise and sell building and T.W. 2521.'

A The messenger's note upon this instruction is:

'The De Soto Sedan T.W. 2521 is not in defendant's possession, it is somewhere in Johannesburg. Attachment made of a new building on Stand No. 5, Asiatic Bazaar - say £500.'

In regard to the building attached on the 22nd April, the applicant B states in its petition that in an inter-pleader action heard in the magistrate's court it was held that the property was not executable in execution of the writ inasmuch as its lawful owner was the respondent's mother, the Mrs. A. P. Moodley referred to in the first of the returns.

C The applicant also alleges that the goods supplied by it to the respondent were used by him in the erection of certain business premises for his mother on the stand in question, and that in the course of cross-examination of the respondent in the inter-pleader proceedings it was elicited that he had received £1,500 from his mother for the erection of these buildings.

D In addition to setting out the history of its attempts to obtain execution of its judgment, the applicant alleges that on or about the 7th April, 1950, that is two days after the judgment had been taken against him, the respondent, in an interview, informed the applicant E that he was unable to meet his liabilities, but would endeavour to obtain a loan from friends, provided the applicant would grant him sufficient time...