Bester v Claasen and Another (6686/2007) [2015] ZAFSHC 50 (5 March 2015)

Bester v Claasen and Another (6686/2007) [2015] ZAFSHC 50 (5 March 2015)

The court found that the applicant's right of occupation and use over the property, although personal and non-transferable, was capable of being attached and sold in execution. South African law accepts that a debtor's right, title, and interest in incorporeal things may be attached and sold. The agreement between the parties did not intend for the right to be registered as a real right, and the right was enforceable only against the first respondent. The practical implication is that the purchaser of such a right acquires it only for the duration of the applicant's life, as it lapses upon his death. The applicant failed to substantiate any impropriety in the sale or in the first...

Citation
[2015] ZAFSHC 50
Parties
Applicant: Michiel Daniël Bester; Respondent: Evert Bakkes Claasen; Respondent: The Sheriff of the High Court, District of Heilbron
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 March 2015
Case Number
6686/2007
Procedural Posture
Review Application / Application to Set Aside Warrant of Execution, Attachment, and Sale in Execution
Outcome
Application dismissed with costs.
Judges
Naidoo
Legal Topics
Attachment and Sale in Execution, Personal Servitude, Real Vs Personal Rights, Warrant of Execution
Civil Procedure Land and Property Attachment and Sale in Execution Personal Servitude Real Vs Personal Rights Warrant of Execution

Case Brief

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Parties

Michiel Daniël Bester

Applicant

Evert Bakkes Claasen

Respondent

The Sheriff of the High Court, District of Heilbron

Respondent

Procedural Posture

Review Application / Application to Set Aside Warrant of Execution, Attachment, and Sale in Execution

Legal Issues

  1. 1 Whether the applicant's personal right of occupation and use over the property could lawfully be attached and sold in execution.
  2. 2 Whether the sale in execution and the warrant of execution were valid and lawful.
  3. 3 Whether the first respondent acted improperly in purchasing the right at the sale in execution.

Ratio Decidendi

The court found that the applicant's right of occupation and use over the property, although personal and non-transferable, was capable of being attached and sold in execution. South African law accepts that a debtor's right, title, and interest in incorporeal things may be attached and sold. The agreement between the parties did not intend for the right to be registered as a real right, and the right was enforceable only against the first respondent. The practical implication is that the purchaser of such a right acquires it only for the duration of the applicant's life, as it lapses upon his death. The applicant failed to substantiate any impropriety in the sale or in the first...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.