Van den Bos NO v Mohloki and Others
| Jurisdiction | South Africa |
| Citation | 2022 (2) SA 616 (GJ) |
Van den Bos NO v Mohloki and Others
2022 (2) SA 616 (GJ)
|
Citation |
|
|
Case No |
2020/11190 and 2020/11191 |
|
Court |
Gauteng Local Division, Johannesburg |
|
Judge |
Gilber AJ |
|
Heard |
September 2, 2021 |
|
Judgment |
September 2, 2021 |
|
Counsel |
N Lombard for the applicant. |
Flynote : Sleutelwoorde
Execution — Special executability — Whether creditor may obtain declaration of special executability on judgment obtained in Magistrates' Court — Uniform Rules of Court, rule 46A.
Headnote : Kopnota
In each of a pair of matters a creditor (an administrator of a body corporate) obtained judgments for arrear contributions from debtors (owners of sectional title units). The creditors had duly obtained writs of execution but the sheriff's returns indicated that no attachable movables could be found (see [4]).
Theron, on strength of the magistrates' courts' orders, the creditor applied to the High Court for declarations of special executability in respect of the debtors' immovable properties (see [6]). This under Uniform Rule of Court 46A.
The issue this raised was whether a High Court could grant such declarations on the back of judgments given in the magistrates' court where execution had been initiated in that court (see [7]).
The High Court held that there was no basis on which it could do so: not under its inherent jurisdiction in that there was no lacuna to fix (special executability was available in the magistrates' court) (see [13] and [22] – [23]); and not by way of process in aid, the requirements for which were unfulfilled (see [23]). Moreover, the creditor was bound to the forum he had chosen (see [24]).
The second issue was whether Uniform Rule 46A applied only to a primary residence (see [27]).
The court, on interpretation, held that the rule applied to all residential properties, but with additional requisites where the residence concerned was primary, and that here, even the lesser requirements in respect of a non-primary residence were not satisfied (see [28] – [30]).
Applications accordingly dismissed (see [32]).
2022 (2) SA p617
Cases cited
Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC) (2003 (2) BCLR 111; [2002] ZACC 31): dictum in para [20] applied
Bosman v Bredell 1932 CPD 385: referred to
Charugo Development Co (Pty) Ltd v Maree NO 1973 (3) SA 759 (A): referred to
Dreyer v Wiebols and Others 2013 (4) SA 498 (GSJ) ([2012] ZAGPJHC 247): referred to
Erstwhile Tenants of Williston Court and Others v Lewray Investments (Pty) Ltd and Another 2016 (6) SA 466 (GJ): referred to
Giant Properties (Pty) Ltd v Govender 2004 CLR 27 (W): dictum in paras [30] – [31] applied
Khoza and Others v Body Corporate of Ella Court 2014 (2) SA 112 (GSJ): referred to
Patel v Manika and Others 1969 (3) SA 509 (D): referred to
Pine Glow Investments (Pty) Ltd and Others v Brick-On-Brick Property and Others 2019 (4) SA 75 (MN): referred to
PMB Hardware Wholesalers CC v Yusuf 2003 (2) SA 73 (N): referred to
Standard Bank of South Africa Ltd and Others v Mpongo and Others 2021 (6) SA 403 (SCA): considered.
Rules of court cited
The Uniform Rules of Court, rule 46A.
Case Information
N Lombard for the applicant.
N Kubayi (attorney) for the first and second respondents.
Applications in the High Court for declarations of special executability on judgments obtained in the magistrates' court.
Order
Applications dismissed.
Judgment
Gilbert AJ:
[1] Can, and should, this court as a division of the High Court declare immovable property specially executable pursuant to orders granted in the magistrates' court? Further, does Uniform Rule 46A apply only in respect of execution against residential immovable property that are the primary residences of judgment debtors, or to all residential immovable property?
[2] The relevant facts for purposes of the judgment can be briefly stated.
[3] The applicant acts in his capacity as a court appointed administrator of the Panarama Place body corporate for a sectional title scheme established in terms of the Sectional Titles Act 95 of 1986. The sectional title scheme is situated in Berea, Johannesburg.
[4] The relevant respondents are registered owners of sections (units) in the sectional title scheme. The applicant acting in his capacity as administrator of the body corporate obtained orders by default against the relevant respondents in the Johannesburg Magistrates' Court for arrear contributions and other charges owing to the body corporate.
2022 (2) SA p618
Gilbert AJ
Attempts to execute on warrants of execution issued out of the magistrates' court were unsuccessful as no attachable movable assets belonging to the respondents could be found at the units, with the deputy sheriffs rendering nulla bona returns of service. Applications by the respondents in the magistrates' court for rescission of the default orders failed. The respondents have sought to appeal the refusal of the rescissions to the High Court. The applicant contends that the respondents are not pursuing those appeal proceedings with any vigour.
[5] The applicant seeks to paint a picture of the respondents being recalcitrant owners who have not paid their contributions and other charges owing to the body corporate for many years, and so much so that the judgment debts exceed the municipal values of the sectional title units. The respondents on the other hand seek to paint a picture of an administrator who does not genuinely seek to advance the interests of the body corporate and the sectional title owners, and who refuses to properly account for payments that he has received. It is unnecessary for me to decide which of these pictures is correct as I am bound to proceed on the basis that the orders granted in the magistrates' court stand until rescinded or set aside on appeal. Although the respondents, who were represented in the hearing before me by their attorney, Mr Kubayi, asserted that execution proceedings are stayed until the appeal proceedings in respect of the rescission applications have been determined, this is not so. [1]
[6] The applicant, relying upon the nulla bona returns of service rendered pursuant to the warrants of execution issued out of the magistrates' court, launched these present proceedings in the High Court to declare the units as immovable properties specially executable, and to authorise that writs of execution be issued in terms of Uniform Rule 46(1)(a).
[7] Before the hearing of the matter, I requested the parties to make submissions [2] whether the High Court has jurisdiction to, and should, declare immovable properties specially executable in relation to judgments granted in the magistrates' court. My concern was that it was not readily apparent to me that the High Court should be approached to
2022 (2) SA p619
Gilbert AJ
declare immovable property executable pursuant to orders granted in the magistrates' court and where the execution process had been initiated in the magistrates' court.
[8] I was informed by applicant's counsel that it was not unusual for this division of the High Court to grant such orders but that she was unable to locate any judgments squarely on point. I too was unable to find any judgments squarely on point.
[9] The applicant's primary submission was that this court did have jurisdiction to...
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