Lodewyks and Another v Sheriff: Boksburg and Another (38340/2016) [2017] ZAGPPHC 1304 (8 December 2017)

Lodewyks and Another v Sheriff: Boksburg and Another (38340/2016) [2017] ZAGPPHC 1304 (8 December 2017)

The court found that the Second Applicant lacked standing to bring the application as he was not the owner of the property but merely an occupant. The relief granted in the rule nisi was vague and overbroad, and the initial factual basis for granting the rule was incorrect, as the First Applicant had been properly served and had entered a notice of intention to defend. Most importantly, the applications to set aside the summary judgment order, which formed the basis for the interim relief, had already been dismissed as irregular steps. As a result, the rationale for the rule nisi had fallen away, and it no longer served any legitimate purpose other than to frustrate a lawful process. The...

Citation
[2017] ZAGPPHC 1304
Parties
Applicant: Jan Lodewyks; Applicant: Jan Hendrik van Niekerk; Respondent: The Sheriff: Boksburg; Respondent: First Rand Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 December 2017
Case Number
38340/2016
Procedural Posture
Urgent Application / Return Date for Rule Nisi; Confirmation or Discharge of Interim Order
Outcome
The rule nisi is discharged and the application is dismissed with costs.
Judges
JFD Brand
Legal Topics
Sale in Execution, Standing, Interim Relief, Eviction Proceedings
Civil Procedure Land and Property Sale in Execution Standing Interim Relief Eviction Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Jan Lodewyks

Applicant

Jan Hendrik van Niekerk

Applicant

The Sheriff: Boksburg

Respondent

First Rand Bank Limited

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the rule nisi suspending the sale in execution of the property should be confirmed or discharged.
  2. 2 Whether the Second Applicant has standing to bring the application.
  3. 3 Whether the relief granted in the rule nisi is competent and sufficiently clear.

Ratio Decidendi

The court found that the Second Applicant lacked standing to bring the application as he was not the owner of the property but merely an occupant. The relief granted in the rule nisi was vague and overbroad, and the initial factual basis for granting the rule was incorrect, as the First Applicant had been properly served and had entered a notice of intention to defend. Most importantly, the applications to set aside the summary judgment order, which formed the basis for the interim relief, had already been dismissed as irregular steps. As a result, the rationale for the rule nisi had fallen away, and it no longer served any legitimate purpose other than to frustrate a lawful process. The...

Court Disposition

The rule nisi is discharged and the application is dismissed with costs.

Orders

  • The rule nisi issued on 28 October 2016 is discharged.
  • The application is dismissed with costs.