K.P.M v Paforma Property Finance (Pty) Ltd and Others (5700/2009) [2014] ZAGPPHC 750 (9 October 2014)

K.P.M v Paforma Property Finance (Pty) Ltd and Others (5700/2009) [2014] ZAGPPHC 750 (9 October 2014)

The court found that the applicant is the registered owner of the immovable property and faces a real risk of irreparable harm if the property is transferred before the rescission application is determined. The applicant demonstrated a clear right and a well-grounded apprehension of harm. The balance of convenience favours the applicant, as the interim interdict is the only effective remedy to prevent transfer. The court noted procedural irregularities regarding the substitution of the property declared executable and the missing last page of the deed of suretyship. The applicant's urgency was justified, and her failure to comply strictly with Rule 6(5) was condoned. The interim interdict...

Citation
[2014] ZAGPPHC 750
Parties
Applicant: K[...] P[....] M[...]; Respondent: Paforma Property Finance (Pty) Ltd; Respondent: Registrar of Deeds, Johannesburg; Respondent: Sheriff of the High Court, Boksburg; Respondent: NEA Incorporated; Respondent: Peter Albertyn; Respondent: Maria Albertyn; Respondent: A[...] J[...] M[...]; Respondent: Jopa Properties Real Estate CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 October 2014
Case Number
5700/2009
Procedural Posture
Urgent Application / Interim Interdict Pending Rescission Application
Outcome
Interim interdict granted pending rescission application; costs reserved.
Judges
M W Msimeki
Legal Topics
Interim Interdict, Transfer of Property, Suretyship, Rescission of Judgment, Urgent Application
Civil Procedure Land and Property Interim Interdict Transfer of Property Suretyship Rescission of Judgment Urgent Application

Case Brief

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Parties

K[...] P[....] M[...]

Applicant

Paforma Property Finance (Pty) Ltd

Respondent

Registrar of Deeds, Johannesburg

Respondent

Sheriff of the High Court, Boksburg

Respondent

NEA Incorporated

Respondent

Peter Albertyn

Respondent

Maria Albertyn

Respondent

A[...] J[...] M[...]

Respondent

Jopa Properties Real Estate CC

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Rescission Application

Legal Issues

  1. 1 Whether the applicant has made out a case for urgent interim relief to prevent transfer of her immovable property pending rescission proceedings.
  2. 2 Whether the applicant is bound as surety and co-principal debtor for the eighth respondent's debt to the first respondent.
  3. 3 Whether the property declared executable and sold in execution was lawfully substituted and whether proper procedures were followed.

Ratio Decidendi

The court found that the applicant is the registered owner of the immovable property and faces a real risk of irreparable harm if the property is transferred before the rescission application is determined. The applicant demonstrated a clear right and a well-grounded apprehension of harm. The balance of convenience favours the applicant, as the interim interdict is the only effective remedy to prevent transfer. The court noted procedural irregularities regarding the substitution of the property declared executable and the missing last page of the deed of suretyship. The applicant's urgency was justified, and her failure to comply strictly with Rule 6(5) was condoned. The interim interdict...

Court Disposition

Interim interdict granted pending rescission application; costs reserved.

Orders

  • The application is urgent and the applicant's failure to comply strictly with Rule 6(5) is condoned.
  • Pending the outcome of the rescission application, respondents are interdicted and restrained from transferring the immovable property described as portion 46 of Erf [...], K[...], registration division AL to the fifth and sixth respondents or any other party.