Eastern Cape Development Corporation v Mpongwana

• Jurisdiction: South Africa
• Judge: Somyalo JP, Van Zyl J, Majiki AJ
• Judgment Date: 23 June 2008
• Docket Number: 615/2007
• Court: Transkei Division
• Hearing Date: 13 June 2008
• Citation: 2008 JDR 0850 (Tk)

Van Zyl J:

[1] Pursuant to a judgment granted in favour of the appellant against the first respondent in the Magistrates' Court for the district of Mthatha for the payment of the sum of R36 794.71, the first respondent's immovable property, being erf 1374, was attached and advertised to be sold at a sale in execution that took place on 11 May 2007.

[2] On the day of the sale in execution the first respondent approached the Court a quo ('the Court') as a matter of urgency in terms of Rule 6(12)

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Van Zyl J

of the Rules of Court seeking a rule nisi calling upon the appellant and the second and third respondents to show cause why an order in the following terms should not be granted:

'2.1

That the sale in execution of the immovable property known as Erf 1374, otherwise known as No. 63-4th Avenue, Norwood in the Municipality and district of Umtata be and is hereby set aside;

2.2

That the Second Respondent be and is hereby interdicted and restrained from transferring the property aforesaid from the Applicant to any other juristic or natural person;'

The appellant further in paragraph 3 of the notice of motion sought an order that paragraphs 2.1 and 2.2 of the rule nisi operate as an interdict pending the finalisation of the application.

[3] It is common cause that the application (to which I shall hereinafter refer to as 'the main application') was heard on 11 May 2007 and in the absence of the appellant and the second and third respondents. On the papers placed before it the Court in terms of Rule 6(12) granted the first respondent leave for the matter to be heard as one of urgency and condoned his failure to strictly comply with the Rules of Court. The Court further made the following order:

'2.

That the rule nisi do hereby issue calling upon the Respondents to show cause, if any, to this Honourable Court on Thursday, 31st May 2007 or so

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Van Zyl J

soon thereafter as the matter may be heard why an order in the following terms should not be granted:

2.1

that the sale in execution of the immovable property known as Erf 1374, otherwise known as No. 63-4th Avenue, Norwood in the Municipality and district of Umtata schedule for Friday, 11th May 2007 be and is hereby stayed pending finalization of this application.

2.2

that in the event of sale having already occurred, the second respondent be and is hereby interdicted and restrained from in any manner whatsoever proceeding and setting in motion the process of registering the said property in the name of whoever shall have bought the property at the sale;

2.3

that the applicant be and is hereby ordered to bring an application for rescission of the default judgment that was entered against Applicant on 19th December 2006 within ten day of the grant of this Order.

3.

That paragraph 2.1 and 2.2 above shall operate as an interim interdict pending the finalization of this application.'

[4] After the papers that were filed in the main application and the order of the Court were served on the appellant, the appellant on 15 May 2007 delivered the following notice:

'Be Pleased To Take Notice That an application will be made to the above honourable Court on 17th day of May 2007 at 10h00 or so soon as the matter may be heard for-:

(1)

The reconsideration of the entire court order dated 11th May 2007 alternatively;

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Van Zyl J

(2)

The setting aside of prayer No. 2.3. of the court order dated 11th May 2007.'

[5] The said notice was accompanied by an affidavit with the heading 'AFFIDAVIT IN SUPPORT OF AN APPLICATION FOR THE RECONSIDERATION OF A RULE NISI ISSUED ON THE 11 MAY 2007'. In the said affidavit the deponent, making reference to the provisions of Rules 6(12)(c) and 12(8), requested the Court to set aside the whole of the order that was granted in favour of the first respondent on 11 May 2007, alternatively, to only reconsider the granting of the relief in paragraph 2.3 of the said order. The basis for asking this relief was essentially that the first respondent, when he launched...