Cloete Murray N.O and Others v Ntombela and Others In re Ntombela and Another v Cloete Murray N.O and Others (3807/2020) [2022] ZAFSHC 160; [2022] 3 All SA 689 (FB) (24 June 2022)

Cloete Murray N.O and Others v Ntombela and Others In re Ntombela and Another v Cloete Murray N.O and Others (3807/2020) [2022] ZAFSHC 160; [2022] 3 All SA 689 (FB) (24 June 2022)

The court held that the decision of the liquidators not to perform in terms of the unexecuted contract for the sale of the property is potentially reviewable, particularly in light of constitutional considerations such as the right to housing and procedural fairness. The Rule 6(5)(d)(iii) notice filed by the respondents was premature because the Rule 53 process, which requires the provision of the record and the opportunity for the applicants to supplement their founding papers, had not been completed. The interlocutory application to set aside the Rule 6(5)(d)(iii) notice was granted provisionally, pending finalisation of the Rule 53 process. The court emphasised that all parties must...

Citation
[2022] ZAFSHC 160
Parties
Applicant: Cloete Murray N.O.; Applicant: Gert Lourens Steyn de Wet N.O.; Applicant: Magda Wilma Kets N.O.; Respondent: Madala Louis David Ntombela; Respondent: Sefora Hixsonia Ntombela; Respondent: Hugo & Terblanche Auctioneers; Respondent: Phehla Umsebenzi Trading 48 CC; Respondent: Panganathana Marimuthu; Respondent: Neermala Moodley; Respondent: Werner Cawood N.O.; Respondent: Johan Christiaan de Beer N.O.; Respondent: Vishal Junkeeparsad & Company Attorneys; Respondent: Merly Moonsammy Attorneys; Respondent: The Master of the High Court, Pretoria
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 June 2022
Case Number
3807/2020
Procedural Posture
Leave to Appeal / Application for Leave to Appeal From Interlocutory Order in Review Proceedings
Outcome
Leave to appeal granted to the Supreme Court of Appeal; costs to be costs in the appeal.
Judges
Opperman
Legal Topics
Reviewability of Liquidator Decisions, Rule 53 Procedure, Specific Performance, Right to Housing, Administrative Action, Interlocutory Relief
Civil Procedure Land and Property Constitutional Law Reviewability of Liquidator Decisions Rule 53 Procedure Specific Performance Right to Housing Administrative Action +1 more

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Parties

Cloete Murray N.O.

Applicant

Gert Lourens Steyn de Wet N.O.

Applicant

Magda Wilma Kets N.O.

Applicant

Madala Louis David Ntombela

Respondent

Sefora Hixsonia Ntombela

Respondent

Hugo & Terblanche Auctioneers

Respondent

Phehla Umsebenzi Trading 48 CC

Respondent

Panganathana Marimuthu

Respondent

Neermala Moodley

Respondent

Werner Cawood N.O.

Respondent

Johan Christiaan de Beer N.O.

Respondent

Vishal Junkeeparsad & Company Attorneys

Respondent

Merly Moonsammy Attorneys

Respondent

The Master of the High Court, Pretoria

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal From Interlocutory Order in Review Proceedings

Legal Issues

  1. 1 Is the decision of liquidators not to perform in terms of an unexecuted contract for the sale of immovable property reviewable under South African law.
  2. 2 Was the filing of the Rule 6(5)(d)(iii) notice by the respondents premature before completion of the Rule 53 review process.
  3. 3 Are the applicants entitled to access the record of proceedings and supplement their founding papers under Rule 53.

Ratio Decidendi

The court held that the decision of the liquidators not to perform in terms of the unexecuted contract for the sale of the property is potentially reviewable, particularly in light of constitutional considerations such as the right to housing and procedural fairness. The Rule 6(5)(d)(iii) notice filed by the respondents was premature because the Rule 53 process, which requires the provision of the record and the opportunity for the applicants to supplement their founding papers, had not been completed. The interlocutory application to set aside the Rule 6(5)(d)(iii) notice was granted provisionally, pending finalisation of the Rule 53 process. The court emphasised that all parties must...

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal; costs to be costs in the appeal.

Orders

  • The applicants are granted leave to appeal to the Supreme Court of Appeal.
  • Costs to be costs in the appeal.