Endeto Engineering CC v Bezuidenhout and Another (59474/2016) [2016] ZAGPPHC 713 (17 August 2016)

Endeto Engineering CC v Bezuidenhout and Another (59474/2016) [2016] ZAGPPHC 713 (17 August 2016)

The court found that the applicant had established circumstances indicating the first respondent was disposing of her only assets with the intention of defeating the applicant's claim. The respondent's failure to provide undertakings, attend pre-trial conferences, or respond to correspondence, coupled with her admission that the properties were her only assets, supported the inference of a deliberate attempt to frustrate execution. The respondent's reliance solely on points of law without filing an answering affidavit meant the applicant's allegations stood uncontroverted. The requirements for a preservation order as set out in Knox D'Arcy and Carmel Trading were satisfied, justifying the...

Citation
[2016] ZAGPPHC 713
Parties
Applicant: Endeto Engineering CC; Respondent: Juliana Bezuidenhout; Respondent: Kego Mining (Pty) Ltd; Respondent: Wynand Prinsloo van Eeden Attorneys; Respondent: Registrar of Deeds, Nelspruit
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 August 2016
Case Number
59474/2016
Procedural Posture
Urgent Application / Interim Interdict Pending Final Determination of Action
Outcome
Application granted; interim interdict issued preserving sale proceeds pending final determination of the main action.
Judges
C J van der Westhuizen
Legal Topics
Interim Interdict, Preservation of Assets, Suretyship, Abuse of Process
Civil Procedure Commercial and Corporate Interim Interdict Preservation of Assets Suretyship Abuse of Process

Case Brief

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Parties

Endeto Engineering CC

Applicant

Juliana Bezuidenhout

Respondent

Kego Mining (Pty) Ltd

Respondent

Wynand Prinsloo van Eeden Attorneys

Respondent

Registrar of Deeds, Nelspruit

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Final Determination of Action

Legal Issues

  1. 1 Whether the applicant is entitled to an interim interdict preserving proceeds from the sale of immovable property pending final determination of the main action.
  2. 2 Whether the applicant has established that the respondent is wasting or secreting assets with the intention of defeating creditors' claims.
  3. 3 Whether the requirements for a preservation order as set out in Knox D'Arcy v Jamieson and Carmel Trading Co Ltd v Commissioner SARS have been met.

Ratio Decidendi

The court found that the applicant had established circumstances indicating the first respondent was disposing of her only assets with the intention of defeating the applicant's claim. The respondent's failure to provide undertakings, attend pre-trial conferences, or respond to correspondence, coupled with her admission that the properties were her only assets, supported the inference of a deliberate attempt to frustrate execution. The respondent's reliance solely on points of law without filing an answering affidavit meant the applicant's allegations stood uncontroverted. The requirements for a preservation order as set out in Knox D'Arcy and Carmel Trading were satisfied, justifying the...

Court Disposition

Application granted; interim interdict issued preserving sale proceeds pending final determination of the main action.

Orders

  • The third respondent is directed to retain the sum of R595,155.19 and an additional amount of R100,000.00 from the funds to be paid into its trust account by the second respondent, or for the benefit of the second respondent, in lieu of the purchase price to be paid by the second respondent to the first respondent...
  • The aforesaid amounts are to be retained in an interest bearing account, opened in terms of section 78(2) of the Attorneys Act, 53 of 1979.