Eldaro Trading (Pty) Ltd v Meraka Lesotho (Pty) Ltd (1092/2016) [2016] ZAFSHC 78 (19 May 2016)

Eldaro Trading (Pty) Ltd v Meraka Lesotho (Pty) Ltd (1092/2016) [2016] ZAFSHC 78 (19 May 2016)

The court found that the requirements for an order to attach property to found or confirm jurisdiction were not met at the time the order was granted. The property sought to be attached was not owned by the respondent nor within the jurisdiction of the court. The applicant failed to disclose pending liquidation proceedings in Lesotho, which could have affected the outcome. The subsequent substitution of attached property with cash in the attorneys' trust account was a direct consequence of an invalid attachment order. The court held that the order granted by Chesiwe A.J. was incapable of being given effect to and was academic and futile. Accordingly, the order was set aside and the...

Citation
[2016] ZAFSHC 78
Parties
Applicant: Eldaro Trading (Pty) Ltd; Respondent: Meraka Lesotho (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 May 2016
Case Number
1092/2016
Procedural Posture
Urgent Application / Application for Reconsideration and Setting Aside of Ex Parte Order
Outcome
Application for reconsideration and setting aside of the ex parte order is granted. The order dated 8 March 2016 is set aside. Applicant to pay the costs of the respondent, including costs of one counsel.
Judges
N.M. Mbhele
Legal Topics
Attachment Ad Fundandam Jurisdiction, Ex Parte Applications, Authority to Institute Proceedings, Disclosure of Material Facts, Costs Orders
Civil Procedure Attachment Ad Fundandam Jurisdiction Ex Parte Applications Authority to Institute Proceedings Disclosure of Material Facts Costs Orders

Case Brief

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Parties

Eldaro Trading (Pty) Ltd

Applicant

Meraka Lesotho (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration and Setting Aside of Ex Parte Order

Legal Issues

  1. 1 Whether the requirements for an order to attach property to found or confirm jurisdiction were met.
  2. 2 Whether the applicant disclosed all material facts in the ex parte application.
  3. 3 Whether the deponent was authorised to launch the application on behalf of the applicant.

Ratio Decidendi

The court found that the requirements for an order to attach property to found or confirm jurisdiction were not met at the time the order was granted. The property sought to be attached was not owned by the respondent nor within the jurisdiction of the court. The applicant failed to disclose pending liquidation proceedings in Lesotho, which could have affected the outcome. The subsequent substitution of attached property with cash in the attorneys' trust account was a direct consequence of an invalid attachment order. The court held that the order granted by Chesiwe A.J. was incapable of being given effect to and was academic and futile. Accordingly, the order was set aside and the...

Court Disposition

Application for reconsideration and setting aside of the ex parte order is granted. The order dated 8 March 2016 is set aside. Applicant to pay the costs of the respondent, including costs of one counsel.

Orders

  • The order of this Court dated 8 March 2016 under case number 1092/2016 is set aside.
  • The Applicant to pay the costs of this application including the costs of one Counsel.