Bam v Holtzhausen and Others (2024-097438) [2025] ZAGPPHC 601 (21 February 2025)

Bam v Holtzhausen and Others (2024-097438) [2025] ZAGPPHC 601 (21 February 2025)

The court found that the order of the Magistrates' Court was granted in violation of the peremptory provisions of section 47(1) of the Superior Courts Act, as no consent was obtained from the Judge President before the applicant, a sitting judge, was joined to the proceedings. The applicant has a direct and substantial interest in the matter as a property owner, and the ongoing execution of the order causes her irreparable harm. The requirements for an interim interdict under Rule 45A were satisfied, including a prima facie right, ongoing harm, and the balance of convenience favouring the applicant. The court held that the order should be stayed pending the outcome of the rescission...

Citation
[2025] ZAGPPHC 601
Parties
Applicant: Noluntu Nelissa Bam; Respondent: Andre Theodore Holtzhausen; Respondent: Mont Reyn Body Corporate; Respondent: Jan Gabriel Du Toit; Respondent: Lee Ju Hee; Respondent: Charlize Engelbrecht; Respondent: Arne Bert Engelbrecht; Respondent: Vicky De Nysschen; Respondent: Aurent Oosthuizen (nee’ Green); Respondent: Dorothea Regina Du Toit; Respondent: Corne Du Toit; Respondent: Daleen Pierini; Respondent: Jacobus Christoffel Erasmus
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 February 2025
Case Number
2024-097438
Procedural Posture
Stay Application / Application for Stay of Magistrates' Court Order Pending Rescission
Outcome
Application granted. The Magistrates' Court order of 14 August 2024 is stayed pending rescission proceedings.
Judges
Mfenyana
Legal Topics
Stay of Execution, Sectional Title Schemes, Joinder, Superior Courts Act Section 47, Interim Interdict
Civil Procedure Land and Property Stay of Execution Sectional Title Schemes Joinder Superior Courts Act Section 47 Interim Interdict

Case Brief

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Parties

Noluntu Nelissa Bam

Applicant

Andre Theodore Holtzhausen

Respondent

Mont Reyn Body Corporate

Respondent

Jan Gabriel Du Toit

Respondent

Lee Ju Hee

Respondent

Charlize Engelbrecht

Respondent

Arne Bert Engelbrecht

Respondent

Vicky De Nysschen

Respondent

Aurent Oosthuizen (nee’ Green)

Respondent

Dorothea Regina Du Toit

Respondent

Corne Du Toit

Respondent

Daleen Pierini

Respondent

Jacobus Christoffel Erasmus

Respondent

Procedural Posture

Stay Application / Application for Stay of Magistrates' Court Order Pending Rescission

Legal Issues

  1. 1 Whether the Magistrates' Court order of 14 August 2024 should be stayed pending rescission proceedings.
  2. 2 Whether section 47(1) of the Superior Courts Act required consent of the Judge President before proceedings involving a judge as a party.
  3. 3 Whether the applicant has established the requirements for an interim interdict under Rule 45A.

Ratio Decidendi

The court found that the order of the Magistrates' Court was granted in violation of the peremptory provisions of section 47(1) of the Superior Courts Act, as no consent was obtained from the Judge President before the applicant, a sitting judge, was joined to the proceedings. The applicant has a direct and substantial interest in the matter as a property owner, and the ongoing execution of the order causes her irreparable harm. The requirements for an interim interdict under Rule 45A were satisfied, including a prima facie right, ongoing harm, and the balance of convenience favouring the applicant. The court held that the order should be stayed pending the outcome of the rescission...

Court Disposition

Application granted. The Magistrates' Court order of 14 August 2024 is stayed pending rescission proceedings.

Orders

  • The order granted by the Pretoria Magistrates' Court dated 14 August 2024 is stayed pending the application for rescission to be instituted by the applicant within 30 days of this order.
  • The first respondent shall pay the costs of this application including the costs of two counsel where so employed.