De Lange v Smit and Others (12987/2013) [2013] ZAGPJHC 204 (29 June 2013)

De Lange v Smit and Others (12987/2013) [2013] ZAGPJHC 204 (29 June 2013)

The court found that the sale in execution of the applicant's right, title and interest in the accrual claim was set aside, as the circumstances surrounding the sale and subsequent conduct indicated procedural irregularity and potential abuse of process. The applicant retained locus standi to seek relief, as the sale did not divest her of all interests relevant to the proceedings, particularly regarding costs. The removal of the Second Respondent as referee was not warranted, as his failure to produce a report was due to lack of cooperation from both parties and not unwillingness or incapacity. The court ordered specific steps to bring the accrual determination to finality, including the...

Citation
[2013] ZAGPJHC 204
Parties
Applicant: De Lange, Hester Magaretha (formerly Smit, born Van der Walt); Respondent: Smit, Johannes Gottlieb; Respondent: Prakke, A E; Respondent: Coetzee, F W J, N.O. The Sheriff, Roodepoort
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 June 2013
Case Number
12987/2013
Procedural Posture
Civil Application / Application for Removal of Referee and Setting Aside of Sale in Execution
Outcome
The sale in execution of the applicant's accrual claim is set aside. The application for removal of the Second Respondent is dismissed. The applicant is ordered to pay R686,00 to Mr van Rensburg. The parties are ordered to provide asset schedules and cooperate with the referee for final determination.
Judges
Kolbe
Legal Topics
Accrual Claim, Sale in Execution, Locus Standi, Removal of Referee, Abuse of Process
Family and Children Civil Procedure Accrual Claim Sale in Execution Locus Standi Removal of Referee Abuse of Process

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Parties

De Lange, Hester Magaretha (formerly Smit, born Van der Walt)

Applicant

Smit, Johannes Gottlieb

Respondent

Prakke, A E

Respondent

Coetzee, F W J, N.O. The Sheriff, Roodepoort

Respondent

Procedural Posture

Civil Application / Application for Removal of Referee and Setting Aside of Sale in Execution

Legal Issues

  1. 1 Whether the applicant retains locus standi to seek removal of the referee after the sale in execution of her accrual claim.
  2. 2 Whether the sale in execution of the applicant's right, title and interest in the accrual claim was lawful or constituted an abuse of process.
  3. 3 Whether the Second Respondent should be removed as referee and replaced.

Ratio Decidendi

The court found that the sale in execution of the applicant's right, title and interest in the accrual claim was set aside, as the circumstances surrounding the sale and subsequent conduct indicated procedural irregularity and potential abuse of process. The applicant retained locus standi to seek relief, as the sale did not divest her of all interests relevant to the proceedings, particularly regarding costs. The removal of the Second Respondent as referee was not warranted, as his failure to produce a report was due to lack of cooperation from both parties and not unwillingness or incapacity. The court ordered specific steps to bring the accrual determination to finality, including the...

Court Disposition

The sale in execution of the applicant's accrual claim is set aside. The application for removal of the Second Respondent is dismissed. The applicant is ordered to pay R686,00 to Mr van Rensburg. The parties are ordered to provide asset schedules and cooperate with the referee for final determination.

Orders

  • The amendment to the notice of motion to claim alternative relief in addition to main relief is granted.
  • The sale in execution on 10 December 2010 of the applicant's right, title and interest in her accrual claim is set aside.