Futshane v King Sabata Dalidyebo Municipality and Others (1529/2013) [2014] ZAECMHC 38 (14 November 2014)

Futshane v King Sabata Dalidyebo Municipality and Others (1529/2013) [2014] ZAECMHC 38 (14 November 2014)

The court held that the application under case number 941/2012, having been struck from the roll, is dormant and not pending; thus, the defence of lis alibi pendens does not apply. Even if the matter were pending, the present application differs in cause of action and relief, as it addresses additional writs and warrants issued after the earlier application and raises the absence of a court order declaring the property executable—a jurisdictional defect not present in the earlier matter. The court further noted that lis alibi pendens is not an absolute bar and, in any event, would exercise its discretion to allow the present application to proceed in the interests of justice and equity....

Citation
[2014] ZAECMHC 38
Parties
Applicant: Nonzwakazi Futshane; Respondent: King Sabata Dalindyebo Municipality; Respondent: The Municipal Manager, KSD Municipality; Respondent: The Sheriff of the High Court, Mthatha; Respondent: Registrar of Deeds, Mthatha
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
14 November 2014
Case Number
1529/2013
Procedural Posture
Urgent Application / Opposed Motion; Determination of Lis Alibi Pendens and Merits
Outcome
Application granted; lis alibi pendens defence dismissed; relief sought by applicant granted; costs awarded against first and second respondents.
Judges
R W N Brooks
Legal Topics
Lis Alibi Pendens, Warrants of Execution, Sale in Execution, Judicial Discretion, Immovable Property Execution
Civil Procedure Land and Property Lis Alibi Pendens Warrants of Execution Sale in Execution Judicial Discretion Immovable Property Execution

Case Brief

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Parties

Nonzwakazi Futshane

Applicant

King Sabata Dalindyebo Municipality

Respondent

The Municipal Manager, KSD Municipality

Respondent

The Sheriff of the High Court, Mthatha

Respondent

Registrar of Deeds, Mthatha

Respondent

Procedural Posture

Urgent Application / Opposed Motion; Determination of Lis Alibi Pendens and Merits

Legal Issues

  1. 1 Whether the defence of lis alibi pendens bars the present application.
  2. 2 Whether the warrants of execution and writs issued against the applicant's immovable property are unlawful due to lack of a court order declaring the property executable.
  3. 3 Whether the applicant is entitled to the interdictory and ancillary relief sought.

Ratio Decidendi

The court held that the application under case number 941/2012, having been struck from the roll, is dormant and not pending; thus, the defence of lis alibi pendens does not apply. Even if the matter were pending, the present application differs in cause of action and relief, as it addresses additional writs and warrants issued after the earlier application and raises the absence of a court order declaring the property executable—a jurisdictional defect not present in the earlier matter. The court further noted that lis alibi pendens is not an absolute bar and, in any event, would exercise its discretion to allow the present application to proceed in the interests of justice and equity....

Court Disposition

Application granted; lis alibi pendens defence dismissed; relief sought by applicant granted; costs awarded against first and second respondents.

Orders

  • An order is granted in terms of prayers 1, 2, 3, 4, 5, 6 and 7 of the notice of motion dated 25 June 2013.
  • The first and second respondents are directed to pay the costs of the application jointly and severally, the one paying the other to be absolved.