Landlord Properties (Pty) Ltd and Another v Nedbank Ltd and Another (EL39/11, ECD 139/11) [2011] ZAECELLC 12 (15 November 2011)

Landlord Properties (Pty) Ltd and Another v Nedbank Ltd and Another (EL39/11, ECD 139/11) [2011] ZAECELLC 12 (15 November 2011)

The applicants failed to establish the prerequisites for a final interdict. The restraint order under POCA did not cover the property of the first applicant, a separate legal entity, as the order targeted property of the second applicant subject to criminal prosecution. No direct financial interest of the second applicant in the property was disclosed. The urgency was self-created, as the applicants had long known of the judgment and impending sale but delayed seeking relief until the last moment. The interlocutory application to strike out the answering affidavit was abandoned and lacked merit. The non-joinder argument was unfounded, as the curator's interest would only arise...

Citation
[2011] ZAECELLC 12
Parties
Applicant: Landlord Properties (Pty) Ltd; Applicant: Masibulele Donald Sturu Pasiya; Respondent: Nedbank Limited; Respondent: Allen Few N.O.
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
15 November 2011
Case Number
EL39/11, ECD 139/11
Procedural Posture
Urgent Application / Return Date of Rule Nisi; Reconsideration of Interim Interdict
Outcome
Application dismissed; rule nisi discharged with costs on attorney and own client scale.
Judges
BC Hartle
Legal Topics
Urgent Interdict, Joinder of Parties, Restraint Order, Sale in Execution, Abuse of Process
Civil Procedure Land and Property Urgent Interdict Joinder of Parties Restraint Order Sale in Execution Abuse of Process

Case Brief

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Parties

Landlord Properties (Pty) Ltd

Applicant

Masibulele Donald Sturu Pasiya

Applicant

Nedbank Limited

Respondent

Allen Few N.O.

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi; Reconsideration of Interim Interdict

Legal Issues

  1. 1 Whether the applicants established grounds for a final interdict restraining the sale in execution of the property.
  2. 2 Whether the second respondent should have been joined in the bond action due to a substantial interest.
  3. 3 Whether the restraint order under POCA precluded the sale in execution of the property.

Ratio Decidendi

The applicants failed to establish the prerequisites for a final interdict. The restraint order under POCA did not cover the property of the first applicant, a separate legal entity, as the order targeted property of the second applicant subject to criminal prosecution. No direct financial interest of the second applicant in the property was disclosed. The urgency was self-created, as the applicants had long known of the judgment and impending sale but delayed seeking relief until the last moment. The interlocutory application to strike out the answering affidavit was abandoned and lacked merit. The non-joinder argument was unfounded, as the curator's interest would only arise...

Court Disposition

Application dismissed; rule nisi discharged with costs on attorney and own client scale.

Orders

  • The rule nisi is discharged.
  • Applicants are ordered to pay the costs of the application on the scale as between attorney and own client.