Kennedy v Nedbank Limited and Another (73083/2009) [2022] ZAGPPHC 148 (11 March 2022)

Kennedy v Nedbank Limited and Another (73083/2009) [2022] ZAGPPHC 148 (11 March 2022)

The court found that the applicant's attack on the writ and underlying judgment was procedurally defective, out of time, and unsupported by evidence. The judgment and order for joint and several liability were correctly granted and reflected in the writ. The requirements of Rule 45 and form 18 were substantively...

Source-derived case information.

Citation
[2022] ZAGPPHC 148
Parties
Applicant: Richard Lawton Kennedy; Respondent: Nedbank Limited; Respondent: Sheriff of the High Court, Knysna
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 March 2022
Case Number
73083/2009
Procedural Posture
Urgent Application / Application to Set Aside Writ of Execution
Outcome
Application dismissed with costs on the scale as between attorney and client.
Judges
N Davis
Legal Topics
Writ of Execution, Joint and Several Liability, Certificate of Balance, Summary Judgment, Abuse of Process
Civil Procedure Writ of Execution Joint and Several Liability Certificate of Balance Summary Judgment Abuse of Process

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Parties

Richard Lawton Kennedy

Applicant

Nedbank Limited

Respondent

Sheriff of the High Court, Knysna

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Writ of Execution

Legal Issues

  1. 1 Whether the second writ of execution issued by the Registrar was valid and in conformity with the underlying judgment.
  2. 2 Whether the applicant is entitled to have the writ set aside due to alleged defects in the judgment and writ.
  3. 3 Whether the applicant's delay and procedural conduct preclude the relief sought.

Ratio Decidendi

The court found that the applicant's attack on the writ and underlying judgment was procedurally defective, out of time, and unsupported by evidence. The judgment and order for joint and several liability were correctly granted and reflected in the writ. The requirements of Rule 45 and form 18 were substantively satisfied, and the certificate of balance was properly attached. The applicant's conduct amounted to an abuse of process, as the application was launched solely to avoid the consequences of sequestration and not due to any bona fide objection to the writ or judgment. Accordingly, the application to set aside the writ was dismissed, and costs were awarded against the applicant on...

Court Disposition

Application dismissed with costs on the scale as between attorney and client.

Orders

  • The application to set aside the writ of execution is dismissed.
  • The applicant is ordered to pay the costs of the application on the scale as between attorney and client.