Lubbe v Volkskas Bpk (386/90) [1992] ZASCA 97; 1992 (3) SA 868 (AD); [1992] 2 All SA 270 (A) (29 May 1992)

Lubbe v Volkskas Bpk (386/90) [1992] ZASCA 97; 1992 (3) SA 868 (AD); [1992] 2 All SA 270 (A) (29 May 1992)

The Supreme Court of Appeal held that Lubbe's application for declaratory and mandatory relief was not urgent or justified. The execution sale procedure already provided for the property to be sold first subject to his rights and, if necessary, free of those rights. Lubbe's application sought to compel the Deputy Sheriff to act contrary to established procedure, which was impermissible. The relief sought in prayers 3 and 4 of his notice of motion was not available under South African law, and prayer 2 was merely a precursor to those impermissible prayers. The court found that the application was correctly dismissed with costs by the lower courts, and the appeal was accordingly dismissed.

Citation
[1992] ZASCA 97
Parties
Appellant: Andries Johannes Lubbe; Respondent: Volkskas Bpk
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 May 1992
Case Number
386/90
Procedural Posture
Civil Appeal / Appeal From Full Bench Decision
Outcome
Appeal dismissed with costs.
Judges
Joubert, Van Heerden, Nestadt, Kumleben, Van Coller
Legal Topics
Retention Right, Sharecropping Contract, Execution Sale, Urgent Application
Land and Property Civil Procedure Retention Right Sharecropping Contract Execution Sale Urgent Application

Case Brief

Summary, issues, holding and outcome

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Parties

Andries Johannes Lubbe

Appellant

Volkskas Bpk

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench Decision

Legal Issues

  1. 1 Whether the appellant Lubbe was entitled to a right of retention over the standing wheat crop on the farm Thornhill during execution proceedings.
  2. 2 Whether Lubbe was entitled to declaratory and mandatory relief compelling the sale of the property subject to his alleged retention right.
  3. 3 Whether the urgent application for such relief was justified in law and fact.

Ratio Decidendi

The Supreme Court of Appeal held that Lubbe's application for declaratory and mandatory relief was not urgent or justified. The execution sale procedure already provided for the property to be sold first subject to his rights and, if necessary, free of those rights. Lubbe's application sought to compel the Deputy Sheriff to act contrary to established procedure, which was impermissible. The relief sought in prayers 3 and 4 of his notice of motion was not available under South African law, and prayer 2 was merely a precursor to those impermissible prayers. The court found that the application was correctly dismissed with costs by the lower courts, and the appeal was accordingly dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.