Bernert v Swanepoel and Others (28623/09) [2009] ZAGPJHC 121; 4 All SA 440 (GSJ) (21 July 2009)

Bernert v Swanepoel and Others (28623/09) [2009] ZAGPJHC 121; 4 All SA 440 (GSJ) (21 July 2009)

The application was dismissed because the applicant relied on an order (Mathopo J, 11 March 2009) that was in direct conflict with a prior order (Nthai AJ, 1 September 2008) confirming the liquidation and the liquidator's powers. The applicant failed to disclose the existence of the prior order to Mathopo J, amounting to material non-disclosure and misleading the court. This conduct warranted rescission of Mathopo J's order. The basis for the applicant's urgent relief thus fell away, and the application was misconceived. The applicant's conduct, including the use of improper tactics and derogatory language, justified a punitive costs order against him.

Citation
[2009] ZAGPJHC 121
Parties
Applicant: Rico Bernert; Respondent: K W J Swanepoel; Respondent: Jaco Roos Attorneys; Respondent: Tutor Trust (Pty) Ltd; Respondent: Venditor Auctioneers; Respondent: Van Heerden Van Staden Attorneys; Respondent: Dr Frans Gerber; Respondent: The Registrar of Deeds; Respondent: The Body Corporate River Glades Estate
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 July 2009
Case Number
28623/09
Procedural Posture
Urgent Application / Application for Urgent Interdict and Rescission of Prior Order
Outcome
Application dismissed; prior order rescinded; punitive costs awarded against applicant.
Judges
Van Oosten
Legal Topics
Urgent Interdict, Rescission of Order, Locus Standi, Ownership Dispute, Liquidation Procedure
Civil Procedure Land and Property Urgent Interdict Rescission of Order Locus Standi Ownership Dispute Liquidation Procedure

Case Brief

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Parties

Rico Bernert

Applicant

K W J Swanepoel

Respondent

Jaco Roos Attorneys

Respondent

Tutor Trust (Pty) Ltd

Respondent

Venditor Auctioneers

Respondent

Van Heerden Van Staden Attorneys

Respondent

Dr Frans Gerber

Respondent

The Registrar of Deeds

Respondent

The Body Corporate River Glades Estate

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict and Rescission of Prior Order

Legal Issues

  1. 1 Whether the applicant is entitled to urgent relief preventing the sale and transfer of Unit 98, Riverglades.
  2. 2 Whether the order granted by Mathopo J on 11 March 2009 should be rescinded due to conflicting prior orders and non-disclosure.
  3. 3 Whether the applicant had locus standi to bring the application.

Ratio Decidendi

The application was dismissed because the applicant relied on an order (Mathopo J, 11 March 2009) that was in direct conflict with a prior order (Nthai AJ, 1 September 2008) confirming the liquidation and the liquidator's powers. The applicant failed to disclose the existence of the prior order to Mathopo J, amounting to material non-disclosure and misleading the court. This conduct warranted rescission of Mathopo J's order. The basis for the applicant's urgent relief thus fell away, and the application was misconceived. The applicant's conduct, including the use of improper tactics and derogatory language, justified a punitive costs order against him.

Court Disposition

Application dismissed; prior order rescinded; punitive costs awarded against applicant.

Orders

  • The application is dismissed.
  • The order including all subsequent additions and/or amendments thereto and/or rectification thereof granted by Mathopo J on 11 March 2009 in case number 23127/05 is set aside.