Changing Tides 17 (Pty) Ltd v Dilley and Others (35357/2009) [2015] ZAGPPHC 60 (11 February 2015)

Changing Tides 17 (Pty) Ltd v Dilley and Others (35357/2009) [2015] ZAGPPHC 60 (11 February 2015)

The court found that the applicant was entitled to have the property declared specially executable. The previous execution order granted by the Registrar was void following the Gundwana decision, requiring a fresh application. The respondents were properly notified and given ample opportunity to oppose and present relevant circumstances, but failed to do so. Their technical objections regarding notice format, section 129 compliance, and authority of the deponent were dismissed as lacking merit. The respondents did not demonstrate any exceptional circumstances or prejudice sufficient to outweigh the applicant's right to enforce its security. The court held that the applicant's right to...

Citation
[2015] ZAGPPHC 60
Parties
Applicant: Changing Tides 17 (Pty) Ltd; Respondent: Elizabeth Jakoba Dilley; Respondent: Selby Peter Prinsloo; Respondent: Unice Aldean Prinsloo
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 February 2015
Case Number
35357/2009
Procedural Posture
Urgent Application / Application for Declaration of Property as Specially Executable Following Default Judgment and Subsequent Constitutional Developments.
Outcome
Application granted. Property declared specially executable. Costs awarded on attorney and client scale.
Judges
C J van der Westhuizen
Legal Topics
Special Executability, Mortgage Bond Enforcement, Default Judgment, Section 129 Notice, Rule 46 Uniform Rules, Constitutional Right to Housing
Civil Procedure Banking and Finance Special Executability Mortgage Bond Enforcement Default Judgment Section 129 Notice Rule 46 Uniform Rules Constitutional Right to Housing

Case Brief

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Parties

Changing Tides 17 (Pty) Ltd

Applicant

Elizabeth Jakoba Dilley

Respondent

Selby Peter Prinsloo

Respondent

Unice Aldean Prinsloo

Respondent

Procedural Posture

Urgent Application / Application for Declaration of Property as Specially Executable Following Default Judgment and Subsequent Constitutional Developments.

Legal Issues

  1. 1 Whether the applicant is entitled to have the property declared specially executable following a default judgment granted by the Registrar prior to the Gundwana decision.
  2. 2 Whether the use of the short form notice of motion was procedurally permissible in the circumstances.
  3. 3 Whether the respondents have placed sufficient circumstances before the court to prevent execution against their primary residence.

Ratio Decidendi

The court found that the applicant was entitled to have the property declared specially executable. The previous execution order granted by the Registrar was void following the Gundwana decision, requiring a fresh application. The respondents were properly notified and given ample opportunity to oppose and present relevant circumstances, but failed to do so. Their technical objections regarding notice format, section 129 compliance, and authority of the deponent were dismissed as lacking merit. The respondents did not demonstrate any exceptional circumstances or prejudice sufficient to outweigh the applicant's right to enforce its security. The court held that the applicant's right to...

Court Disposition

Application granted. Property declared specially executable. Costs awarded on attorney and client scale.

Orders

  • It is declared that ERF 5288 EERSTERUST EXTENSION 6 TOWNSHIP, REGISTRATION DIVISION J.R., PROVINCE GAUTENG, MEASURING 315 SQUARE METRES, HELD BY DEED OF TRANSFER NO. T74564/2007, is specially executable.
  • The Registrar of the above Honourable Court is authorised to issue a Warrant of Attachment in respect of the property.