Green NO and Others v Aquaride Entertainment CC t/a Vista Marina (11141; 15887/2018) [2018] ZAWCHC 145 (8 November 2018)

Green NO and Others v Aquaride Entertainment CC t/a Vista Marina (11141; 15887/2018) [2018] ZAWCHC 145 (8 November 2018)

The applicants, as trustees of the Two Oceans Aquarium Trust, were entitled to final perfection of the general notarial bond over the respondent's movable property and to ejectment of the respondent from the leased premises. The respondent's defences lacked merit. Urgency is inherent in perfection proceedings, and...

Source-derived case information.

Citation
[2018] ZAWCHC 145
Parties
Applicant: David Simon Green N.O.; Applicant: Leon Norbert Sasse N.O.; Applicant: Gerald Diamond N.O.; Applicant: Jacobus Frederik van der Merwe N.O.; Applicant: Vuyani Hako N.O.; Applicant: Patrick Ashworth Garratt N.O.; Applicant: Linton François Burger N.O.; Respondent: Aquarides Entertainment CC t/a Vista Marina
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
8 November 2018
Case Number
11141; 15887/2018
Procedural Posture
Urgent Application / Final Determination of Two Consolidated Applications: Perfection of Notarial Bond and Ejectment.
Outcome
Both applications granted: final perfection of notarial bond and ejectment of respondent from premises.
Judges
Binns-Ward
Legal Topics
Perfection of Notarial Bond, Ejectment, Lease Termination, National Credit Act Exclusion, Lis Alibi Pendens, Arbitration Clause Exclusion
Land and Property Commercial and Corporate Civil Procedure Perfection of Notarial Bond Ejectment Lease Termination National Credit Act Exclusion Lis Alibi Pendens +1 more

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Parties

David Simon Green N.O.

Applicant

Leon Norbert Sasse N.O.

Applicant

Gerald Diamond N.O.

Applicant

Jacobus Frederik van der Merwe N.O.

Applicant

Vuyani Hako N.O.

Applicant

Patrick Ashworth Garratt N.O.

Applicant

Linton François Burger N.O.

Applicant

Aquarides Entertainment CC t/a Vista Marina

Respondent

Procedural Posture

Urgent Application / Final Determination of Two Consolidated Applications: Perfection of Notarial Bond and Ejectment.

Legal Issues

  1. 1 Whether the applicants are entitled to final perfection of the general notarial bond over the respondent's movable property.
  2. 2 Whether the applicants are entitled to ejectment of the respondent from the leased premises due to breach of lease.
  3. 3 Whether the respondent's defences, including lis alibi pendens, lack of urgency, lack of authority, National Credit Act applicability, and arbitration clause, have merit.

Ratio Decidendi

The applicants, as trustees of the Two Oceans Aquarium Trust, were entitled to final perfection of the general notarial bond over the respondent's movable property and to ejectment of the respondent from the leased premises. The respondent's defences lacked merit. Urgency is inherent in perfection proceedings, and the respondent's challenge on this ground was ill-advised. The deponent's authority was not in issue, and any challenge to attorneys' authority was not properly raised. Discrepancies between the registered bond and the draft were superficial and permitted by the power of attorney. The National Credit Act did not apply to the acknowledgment of debt, as it was a large agreement...

Court Disposition

Both applications granted: final perfection of notarial bond and ejectment of respondent from premises.

Orders

  • The rule nisi for perfection of the notarial bond is made final.
  • The sheriff is to retain any movable property removed under this order in storage for the applicants, pending further court directions, withdrawal/dismissal of the winding-up application, or agreement between the trust and Bidvest.