Frost NO and Others v Vermaak (3754/2011) [2012] ZAECPEHC 36 (1 June 2012)

Frost NO and Others v Vermaak (3754/2011) [2012] ZAECPEHC 36 (1 June 2012)

The court found that the requirements for attachment ad confirmandam jurisdictionem were satisfied: the applicants had a prima facie cause of action, the respondent was a peregrinus, and the property was within the jurisdiction. The respondent's defence of res judicata was rejected because the prior Magistrates Court application was fatally defective, lacking a sworn affidavit as required by the rules, rendering the judgment a nullity. Even if the prior proceedings were valid, the issue before the magistrate concerned attachment, not the merits of the underlying claim. The defence of prescription is not relevant at this stage and must be raised by special plea in the main action....

Citation
[2012] ZAECPEHC 36
Parties
Applicant: Samuel Paul Frost N.O; Applicant: Sunette Frost N.O; Applicant: Karin Evelina Vermaak N.O; Applicant: Sonja Boshoff N.O; Applicant: Daniel Johannes Smit N.O; Respondent: Percival Orsmond Hugh Vermaak
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
1 June 2012
Case Number
3754/2011
Procedural Posture
Urgent Application / Return Day of Ex Parte Application for Final Order of Attachment Ad Confirmandam Jurisdictionem
Outcome
Application granted; rule nisi confirmed; order for attachment ad confirmandam jurisdictionem issued; costs awarded to applicants.
Judges
Chetty
Legal Topics
Attachment Ad Confirmandam Jurisdictionem, Res Judicata, Magistrates Court Rules, Affidavit Requirements
Civil Procedure Attachment Ad Confirmandam Jurisdictionem Res Judicata Magistrates Court Rules Affidavit Requirements

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Parties

Samuel Paul Frost N.O

Applicant

Sunette Frost N.O

Applicant

Karin Evelina Vermaak N.O

Applicant

Sonja Boshoff N.O

Applicant

Daniel Johannes Smit N.O

Applicant

Percival Orsmond Hugh Vermaak

Respondent

Procedural Posture

Urgent Application / Return Day of Ex Parte Application for Final Order of Attachment Ad Confirmandam Jurisdictionem

Legal Issues

  1. 1 Whether the applicants are entitled to an order for attachment ad confirmandam jurisdictionem of the respondent's immovable property.
  2. 2 Whether the respondent's defence of res judicata is sustainable given prior proceedings in the Magistrates Court.
  3. 3 Whether the prior Magistrates Court application was fatally defective due to non-compliance with affidavit requirements.

Ratio Decidendi

The court found that the requirements for attachment ad confirmandam jurisdictionem were satisfied: the applicants had a prima facie cause of action, the respondent was a peregrinus, and the property was within the jurisdiction. The respondent's defence of res judicata was rejected because the prior Magistrates Court application was fatally defective, lacking a sworn affidavit as required by the rules, rendering the judgment a nullity. Even if the prior proceedings were valid, the issue before the magistrate concerned attachment, not the merits of the underlying claim. The defence of prescription is not relevant at this stage and must be raised by special plea in the main action....

Court Disposition

Application granted; rule nisi confirmed; order for attachment ad confirmandam jurisdictionem issued; costs awarded to applicants.

Orders

  • The rule nisi is confirmed and an order is made for attachment ad confirmandam jurisdictionem of the following properties: (1) An undivided one third share of portion 4 of the Farm Geelhoute Boom No 21, Kouga Municipality, Division of Humansdorp, Eastern Cape, in extent 45.0799 hectares, held by Deed of Transfer No....
  • The respondent is ordered to pay the applicants' costs.