Industrial Corporation of South Africa Limited v Kgaswane Country Lodge (Pty) Limited (18445/2014) [2017] ZAGPPHC 34 (9 February 2017)
The court refused to grant the order sought by the applicant because it amounted to parate executie, an extraordinary remedy not justified in the circumstances. The applicant did not provide any inventory or valuation of the assets to be sold, nor did it demonstrate why it should be empowered to sell all assets on...
Source-derived case information.
- Citation
- [2017] ZAGPPHC 34
- Parties
- Applicant: Industrial Corporation of South Africa Limited; Respondent: Kgaswane Country Lodge (Pty) Limited
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 18445/2014
- Procedural Posture
- Urgent Application / Unopposed Motion Court
- Outcome
- Application for order authorising applicant to dispose of respondent's movable property refused.
- Judges
- Tuchten
- Legal Topics
- Parate Executie, Execution of Judgments, Court Discretion
Source-derived case record
Summary, issues, holding and outcome
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Parties
Industrial Corporation of South Africa Limited
Applicant
Kgaswane Country Lodge (Pty) Limited
Respondent
Procedural Posture
Urgent Application / Unopposed Motion Court
Legal Issues
- 1 Whether the applicant is entitled to an order authorising it to dispose of all the respondent's movable property by various means as it sees fit.
- 2 Whether the court should grant parate executie in the absence of inventory or valuation of assets.
- 3 Whether the applicant should follow the usual process of obtaining a money judgment and executing thereon.
Ratio Decidendi
The court refused to grant the order sought by the applicant because it amounted to parate executie, an extraordinary remedy not justified in the circumstances. The applicant did not provide any inventory or valuation of the assets to be sold, nor did it demonstrate why it should be empowered to sell all assets on terms it decided. The court found no reason why the applicant should not follow the usual process of obtaining a money judgment and executing on that judgment in accordance with standard practice.
Court Disposition
Application for order authorising applicant to dispose of respondent's movable property refused.
Orders
- The order sought by the applicant is refused.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
09/02/2017
CASE NO: 18445/2014
In the matter between:
INDUSTRIAL CORPORATION OF SOUTH AFRICA LIMITED Applicant
and
KGASWANE COUNTRY LODGE (PTY) LIMITED Respondent
REASONS FOR ORDER
Tuchten J:
1 This matter came before me in the unopposed motion court for the hearing of the relief sought in Part B of the applicant's notice of motion. The relief sought was an order that the applicant be authorised to
dispose of all the respondent's moveable property whether held by the respondent at the date of the order or acquired by the respondent in the future by public auction, public tender, private treaty or in such manner as the applicant decided.
2 I put it to counsel that the order sought was one for parate executie. Counsel did not argue otherwise. There seemed to me no justification for the prayer that the applicant be empowered by court order to sell all of the assets in a manner and on terms decided by the applicant itself. I was not referred to any inventory or valuation of the assets sought to be sold.
3 There seemed to me to be no reason why the applicant should not seek to obtain a money judgment against the respondent for what is owed to it and then execute on that judgment in accordance with the usual practice.
4 I therefore refused to make the order sought.
NB Tuchten
Judge of the High Court
9 February 2017