Changing Tides (Pty) Ltd v Danster and Another (359/2013) [2015] ZANCHC 20 (29 May 2015)

Changing Tides (Pty) Ltd v Danster and Another (359/2013) [2015] ZANCHC 20 (29 May 2015)

The court found that the applicant had established a proper case for declaring the property specially executable. The respondents failed to place sufficient relevant circumstances before the court to warrant the exercise of discretion in their favour. The alleged agreement to suspend execution was rejected as improbable and contradicted by documentary evidence. The Sheriff’s nulla bona returns were accepted as proof that no movable assets were available to satisfy the debt. Even if the respondents’ claims regarding movables were accepted, their value would be insufficient to extinguish the debt. The respondents’ financial position and payment history indicated they would not be able to...

Citation
[2015] ZANCHC 20
Parties
Applicant: Changing Tides (Pty) Ltd; Respondent: Ferdinand Ali Danster; Respondent: Gertrude Trudy Danster
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
29 May 2015
Case Number
359/2013
Procedural Posture
Civil Application / Application for Order Declaring Immovable Property Specially Executable After Default Judgment
Outcome
Application granted. The property is declared specially executable and the Registrar is authorized to issue a writ of execution. Costs awarded against the respondents on a party and party scale.
Judges
Erasmus
Legal Topics
Special Executability, Mortgage Bond Enforcement, Default Judgment, Nulla Bona Return, Constitutional Right to Housing
Civil Procedure Land and Property Special Executability Mortgage Bond Enforcement Default Judgment Nulla Bona Return Constitutional Right to Housing

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Parties

Changing Tides (Pty) Ltd

Applicant

Ferdinand Ali Danster

Respondent

Gertrude Trudy Danster

Respondent

Procedural Posture

Civil Application / Application for Order Declaring Immovable Property Specially Executable After Default Judgment

Legal Issues

  1. 1 Whether the applicant has established a proper case for declaring the respondents' primary residence specially executable.
  2. 2 Whether the respondents have movable assets sufficient to satisfy the judgment debt and avoid execution against immovable property.
  3. 3 Whether an agreement existed between the applicant and first respondent to suspend execution proceedings upon payment of instalments.

Ratio Decidendi

The court found that the applicant had established a proper case for declaring the property specially executable. The respondents failed to place sufficient relevant circumstances before the court to warrant the exercise of discretion in their favour. The alleged agreement to suspend execution was rejected as improbable and contradicted by documentary evidence. The Sheriff’s nulla bona returns were accepted as proof that no movable assets were available to satisfy the debt. Even if the respondents’ claims regarding movables were accepted, their value would be insufficient to extinguish the debt. The respondents’ financial position and payment history indicated they would not be able to...

Court Disposition

Application granted. The property is declared specially executable and the Registrar is authorized to issue a writ of execution. Costs awarded against the respondents on a party and party scale.

Orders

  • The property described as Erf 22656, situated in the Sol Plaatje Municipality and also known as 28 Owl Crescent, Kimberley is declared specially executable.
  • The Registrar is authorized to issue a writ of execution to give effect to such order.