Botha t/a Johnny's Construction and Another v Kabelo Investments (Pty) Ltd t/a Central Timer and Truss (5512/2016) [2018] ZAFSHC 8 (8 February 2018)

Botha t/a Johnny's Construction and Another v Kabelo Investments (Pty) Ltd t/a Central Timer and Truss (5512/2016) [2018] ZAFSHC 8 (8 February 2018)

The court found that, although there was uncertainty regarding the receipt of funds from Quthing Construction, the constitutional right to adequate housing and the need to consider reasonable alternatives to execution were not sufficiently weighed by the court a quo. The court held that, in matters involving the execution of a primary residence, applicants should be afforded the benefit of the doubt regarding alternative means of satisfying the debt. The differentiation between the two properties, as suggested by the respondent's counsel, was considered appropriate. Consequently, the court concluded that there was a reasonable possibility that another court might reach a different...

Citation
[2018] ZAFSHC 8
Parties
Applicant: Johnny Botha t/a Johnny's Construction; Applicant: A C Botha; Respondent: Kabelo Investments (Pty) Ltd t/a Central Timer and Truss
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
8 February 2018
Case Number
5512/2016
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment Declaring Properties Executable
Outcome
Leave to appeal against the judgment and order declaring the applicants' properties executable is granted.
Judges
J.J.F. Hefer
Legal Topics
Leave to Appeal, Sale in Execution, Right to Adequate Housing, Section 26 Constitution, Primary Residence Execution
Civil Procedure Constitutional Law Leave to Appeal Sale in Execution Right to Adequate Housing Section 26 Constitution Primary Residence Execution

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Johnny Botha t/a Johnny's Construction

Applicant

A C Botha

Applicant

Kabelo Investments (Pty) Ltd t/a Central Timer and Truss

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment Declaring Properties Executable

Legal Issues

  1. 1 Whether leave to appeal should be granted against the order declaring the applicants' properties specifically executable.
  2. 2 Whether the applicants and their family members' right to adequate housing under Section 26 of the Constitution was sufficiently considered.
  3. 3 Whether alternative means of satisfying the judgment debt were available and properly evaluated.

Ratio Decidendi

The court found that, although there was uncertainty regarding the receipt of funds from Quthing Construction, the constitutional right to adequate housing and the need to consider reasonable alternatives to execution were not sufficiently weighed by the court a quo. The court held that, in matters involving the execution of a primary residence, applicants should be afforded the benefit of the doubt regarding alternative means of satisfying the debt. The differentiation between the two properties, as suggested by the respondent's counsel, was considered appropriate. Consequently, the court concluded that there was a reasonable possibility that another court might reach a different...

Court Disposition

Leave to appeal against the judgment and order declaring the applicants' properties executable is granted.

Orders

  • Applicants are granted leave to appeal against the judgment and order dated 23 February 2017.
  • The costs in regard to the application for leave to appeal are costs in the appeal.