Coetzer v Quad Ostrich Farming (Pty) Ltd (3052/2020) [2020] ZAFSHC 190 (14 October 2020)

Coetzer v Quad Ostrich Farming (Pty) Ltd (3052/2020) [2020] ZAFSHC 190 (14 October 2020)

The court held that, although the notarial bond and agreement to perfect conferred rights on the applicant, judicial sanction was required to avoid any challenge based on invalidity or unconstitutionality, particularly in light of the respondent's refusal to cooperate and the imminent sale of the property by a third-party creditor. The applicant's approach to court was justified by the respondent's conduct and the risk of prejudice. The rule nisi previously granted was confirmed, with a minor amendment to the referenced annexure, as the applicant had properly made out a case for urgent relief and the perfection of security under the notarial bond.

Citation
[2020] ZAFSHC 190
Parties
Applicant: Jacobus Nicolaas Coetzer; Respondent: Quad Ostrich Farming (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
14 October 2020
Case Number
3052/2020
Procedural Posture
Urgent Application / Final Confirmation of Rule Nisi After Urgent Interim Relief
Outcome
Rule nisi confirmed; applicant granted relief to perfect security under the notarial bond.
Judges
C Nekosie
Legal Topics
Notarial Bond Perfection, Security by Means of Movable Property Act, Parate Execution, Urgent Interdict, Real Rights in Movable Property
Civil Procedure Commercial and Corporate Notarial Bond Perfection Security by Means of Movable Property Act Parate Execution Urgent Interdict Real Rights in Movable Property

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Parties

Jacobus Nicolaas Coetzer

Applicant

Quad Ostrich Farming (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Final Confirmation of Rule Nisi After Urgent Interim Relief

Legal Issues

  1. 1 Whether the applicant was entitled to approach the court on an urgent basis to perfect security under a notarial bond.
  2. 2 Whether judicial sanction is required for the applicant to take possession of the movable property subject to the bond.
  3. 3 Whether the respondent's conduct justified urgent relief and confirmation of the rule nisi.

Ratio Decidendi

The court held that, although the notarial bond and agreement to perfect conferred rights on the applicant, judicial sanction was required to avoid any challenge based on invalidity or unconstitutionality, particularly in light of the respondent's refusal to cooperate and the imminent sale of the property by a third-party creditor. The applicant's approach to court was justified by the respondent's conduct and the risk of prejudice. The rule nisi previously granted was confirmed, with a minor amendment to the referenced annexure, as the applicant had properly made out a case for urgent relief and the perfection of security under the notarial bond.

Court Disposition

Rule nisi confirmed; applicant granted relief to perfect security under the notarial bond.

Orders

  • The rule nisi granted in paragraph 9 of the Court Order dated 19 August 2020 is confirmed.
  • Reference in paragraph 9.1 of the aforesaid Court Order to annexure 'C' is amended to read annexure 'A'.