Kacnis and Others v Sheriff of the High And Lower Court, Port Elizabeth South and Another (3980/2011) [2014] ZAECPEHC 53 (30 July 2014)

Kacnis and Others v Sheriff of the High And Lower Court, Port Elizabeth South and Another (3980/2011) [2014] ZAECPEHC 53 (30 July 2014)

The court found that the orders cancelling the sale in execution were made in proceedings that are sui generis and not susceptible to recission under Rule 42(1)(a) or the common law. The applicants' complaints regarding non-joinder and non-service were insubstantial, as the first applicant was properly cited and served as purchaser based on the sale documents. The urgency claimed by the applicants was self-created, as they were aware of the relevant circumstances and failed to act timeously. The third and fourth respondents had a direct and substantial interest and should have been joined from the outset. The application for recission was dismissed, and costs were awarded on a punitive...

Citation
[2014] ZAECPEHC 53
Parties
Applicant: Dimitri Kacnis; Applicant: Rocaforce (Proprietary) Limited; Applicant: Cargo Torque CC; Respondent: Sheriff of the High and Lower Court, Port Elizabeth South; Respondent: Standard Bank of South Africa Limited
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
30 July 2014
Case Number
3980/2011
Procedural Posture
Urgent Application / Application for Recission and Joinder, Heard and Dismissed
Outcome
Application for recission dismissed with costs on an attorney and client scale; applicants ordered to pay costs of joinder.
Judges
R W N Brooks
Legal Topics
Sale in Execution, Joinder of Parties, Recission of Order, Urgency, Costs Award
Civil Procedure Land and Property Sale in Execution Joinder of Parties Recission of Order Urgency Costs Award

Case Brief

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Parties

Dimitri Kacnis

Applicant

Rocaforce (Proprietary) Limited

Applicant

Cargo Torque CC

Applicant

Sheriff of the High and Lower Court, Port Elizabeth South

Respondent

Standard Bank of South Africa Limited

Respondent

Procedural Posture

Urgent Application / Application for Recission and Joinder, Heard and Dismissed

Legal Issues

  1. 1 Whether the orders cancelling the sale in execution were susceptible to recission under Rule 42(1)(a) or the common law.
  2. 2 Whether the applicants were properly cited and served in the original Rule 46(II) applications.
  3. 3 Whether the urgency claimed by the applicants was self-created and justified dismissal.

Ratio Decidendi

The court found that the orders cancelling the sale in execution were made in proceedings that are sui generis and not susceptible to recission under Rule 42(1)(a) or the common law. The applicants' complaints regarding non-joinder and non-service were insubstantial, as the first applicant was properly cited and served as purchaser based on the sale documents. The urgency claimed by the applicants was self-created, as they were aware of the relevant circumstances and failed to act timeously. The third and fourth respondents had a direct and substantial interest and should have been joined from the outset. The application for recission was dismissed, and costs were awarded on a punitive...

Court Disposition

Application for recission dismissed with costs on an attorney and client scale; applicants ordered to pay costs of joinder.

Orders

  • The applicants are directed to pay the costs of the application for joinder jointly and severally, on the attorney and client scale, including costs incurred by the first and second respondents.
  • The application for recission is dismissed with costs, to be paid by the applicants jointly and severally, on the attorney and client scale, to the first, second, third, and fourth respondents.