Confuscore (Pty) Limited v Ehlers N.O and Others (2919/2016) [2019] ZALMPPHC 2 (1 February 2019)

Confuscore (Pty) Limited v Ehlers N.O and Others (2919/2016) [2019] ZALMPPHC 2 (1 February 2019)

The court found that the Third Respondent had established exceptional circumstances justifying the operation and execution of the judgment pending appeal. The Third Respondent had purchased the farms for R31,000,000.00, financed by a substantial loan, and was being prevented from exercising its ownership and occupational rights, resulting in irreparable financial harm and loss of income. The Applicants, having lost ownership through sale in execution and being virtually insolvent, were not conducting any feasible farming and would not suffer irreparable harm if the order was granted. The court concluded that the requirements of section 18(1) and (3) of the Superior Courts Act were met,...

Citation
[2019] ZALMPPHC 2
Parties
Applicant: Gert Hendrik Ehlers N.O; Applicant: Daniel Matthys Christoffel Ehlers N.O; Applicant: Daniel Frederick Ehlers N.O; Respondent: Land and Agricultural Development Bank of South Africa; Respondent: The Sheriff of the High Court, Bochum; Respondent: Corfuscore (Pty) Limited; Respondent: Registrar of Deeds, Polokwane; Respondent: ABSA Bank Limited
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
1 February 2019
Case Number
2919/2016
Procedural Posture
Urgent Application / Application Under Section 18 of the Superior Courts Act for Operation and Execution of Judgment Pending Appeal
Outcome
Application granted. The judgment and order of 16 August 2018 shall operate and be executed pending the outcome of the application for leave to appeal and any appeal noted.
Judges
E M Makgoba
Legal Topics
Suspension of Judgment, Exceptional Circumstances, Irreparable Harm, Sale in Execution, Ownership Transfer
Civil Procedure Land and Property Suspension of Judgment Exceptional Circumstances Irreparable Harm Sale in Execution Ownership Transfer

Case Brief

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Parties

Gert Hendrik Ehlers N.O

Applicant

Daniel Matthys Christoffel Ehlers N.O

Applicant

Daniel Frederick Ehlers N.O

Applicant

Land and Agricultural Development Bank of South Africa

Respondent

The Sheriff of the High Court, Bochum

Respondent

Corfuscore (Pty) Limited

Respondent

Registrar of Deeds, Polokwane

Respondent

ABSA Bank Limited

Respondent

Procedural Posture

Urgent Application / Application Under Section 18 of the Superior Courts Act for Operation and Execution of Judgment Pending Appeal

Legal Issues

  1. 1 Whether the judgment and order of 16 August 2018 should operate and be executed pending the outcome of the application for leave to appeal and any appeal noted.
  2. 2 Whether exceptional circumstances exist justifying deviation from the automatic suspension of the judgment under section 18 of the Superior Courts Act.
  3. 3 Whether the Third Respondent will suffer irreparable harm if the order is not granted and whether the Applicants will suffer irreparable harm if the order is granted.

Ratio Decidendi

The court found that the Third Respondent had established exceptional circumstances justifying the operation and execution of the judgment pending appeal. The Third Respondent had purchased the farms for R31,000,000.00, financed by a substantial loan, and was being prevented from exercising its ownership and occupational rights, resulting in irreparable financial harm and loss of income. The Applicants, having lost ownership through sale in execution and being virtually insolvent, were not conducting any feasible farming and would not suffer irreparable harm if the order was granted. The court concluded that the requirements of section 18(1) and (3) of the Superior Courts Act were met,...

Court Disposition

Application granted. The judgment and order of 16 August 2018 shall operate and be executed pending the outcome of the application for leave to appeal and any appeal noted.

Orders

  • The judgment and order of this Court granted on 16 August 2018 shall operate and be executed pending the outcome of the application for leave to appeal including any appeal noted, if at all.
  • The Third Respondent is exempted from furnishing security in terms of Rule 49(12) of the Uniform Rules of Court.