Levine v Wienand and Others (C362/2018) [2018] ZALCCT 23 (29 June 2018)

Levine v Wienand and Others (C362/2018) [2018] ZALCCT 23 (29 June 2018)

The applicant failed to discharge the onus of proving that payment was made under duress or protest. The sheriff acted lawfully in seeking to attach goods at the registered address of Osmosis, and the applicant had several options available, including allowing an inventory or approaching the court on notice. The applicant voluntarily chose to pay from his personal account to avoid the sheriff entering his residence, and the evidence did not support claims of unlawful threat or humiliation. The applicant did not establish a prima facie right to the interdictory relief sought, and the rule nisi was discharged. Costs were awarded against the applicant, with attorney-own client costs for the...

Citation
[2018] ZALCCT 23
Parties
Applicant: Wayne Harry Levine; Respondent: Albert Wienand; Respondent: The Sheriff for the District of Malmesbury; Respondent: Firstrand Bank Limited
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
29 June 2018
Case Number
C362/2018
Procedural Posture
Urgent Application / Return Date of Rule Nisi; Confirmation or Discharge of Interim Interdict
Outcome
Application dismissed; rule nisi discharged; costs awarded against applicant.
Judges
Rabkin-Naicker
Legal Topics
Interim Interdict, Payment Under Duress, Costs Orders, Execution of Arbitration Award
Civil Procedure Labour Law Interim Interdict Payment Under Duress Costs Orders Execution of Arbitration Award

Case Brief

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Parties

Wayne Harry Levine

Applicant

Albert Wienand

Respondent

The Sheriff for the District of Malmesbury

Respondent

Firstrand Bank Limited

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi; Confirmation or Discharge of Interim Interdict

Legal Issues

  1. 1 Whether the applicant paid the amount to the sheriff under duress or protest, entitling him to recover the money.
  2. 2 Whether the sheriff and deputy acted unlawfully or illegitimately in seeking to attach goods at the applicant's residence.
  3. 3 Whether the applicant established a prima facie right to the interdictory relief sought.

Ratio Decidendi

The applicant failed to discharge the onus of proving that payment was made under duress or protest. The sheriff acted lawfully in seeking to attach goods at the registered address of Osmosis, and the applicant had several options available, including allowing an inventory or approaching the court on notice. The applicant voluntarily chose to pay from his personal account to avoid the sheriff entering his residence, and the evidence did not support claims of unlawful threat or humiliation. The applicant did not establish a prima facie right to the interdictory relief sought, and the rule nisi was discharged. Costs were awarded against the applicant, with attorney-own client costs for the...

Court Disposition

Application dismissed; rule nisi discharged; costs awarded against applicant.

Orders

  • The rule issued on 2 May 2018 is discharged.
  • Applicant is to pay first respondent's costs.