Mike Sellick Trust (Pty) Ltd v Clarbex (Pty) Ltd and Another (1238/1991) [2013] ZAKZPHC 2 (16 January 2013)

Mike Sellick Trust (Pty) Ltd v Clarbex (Pty) Ltd and Another (1238/1991) [2013] ZAKZPHC 2 (16 January 2013)

The applicant failed to establish even a prima facie right to the relief sought. The facts, including the registration of the cession in favour of the first respondent and the absence of any credible evidence that the judgment debt was extinguished, support the respondent's entitlement to enforce the writs of execution. The applicant's reliance on correspondence and draft agreements was either inadmissible or of negligible probative value. The agreement between Edmunson and Dunlop did not result in the abandonment or waiver of Dunlop's rights under the mortgage bond, nor did it prevent the first respondent, as cessionary, from executing against the property. The previous judgment...

Citation
[2013] ZAKZPHC 2
Parties
Applicant: Mike Sellick Trust (Pty) Limited; Respondent: Clarbex (Pty) Limited; Respondent: Sheriff of the High Court
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
16 January 2013
Case Number
1238/1991
Procedural Posture
Stay Application / Application for Stay of Writs of Execution Pending Outcome of Action to Set Aside Writs
Outcome
Application dismissed with costs.
Judges
Koen
Legal Topics
Stay of Execution, Mortgage Bond Cession, Judgment Debt Extinguishment, Sale in Execution
Civil Procedure Land and Property Stay of Execution Mortgage Bond Cession Judgment Debt Extinguishment Sale in Execution

Case Brief

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Parties

Mike Sellick Trust (Pty) Limited

Applicant

Clarbex (Pty) Limited

Respondent

Sheriff of the High Court

Respondent

Procedural Posture

Stay Application / Application for Stay of Writs of Execution Pending Outcome of Action to Set Aside Writs

Legal Issues

  1. 1 Whether the original judgment debt was compromised and extinguished by payment to Dunlop, preventing the first respondent from enforcing the writs of execution.
  2. 2 Whether Edmunson interposed himself as judgment debtor and effected payment, thereby discharging the debt.
  3. 3 Whether the first respondent, as cessionary of the mortgage bond and judgment debt, has rights to enforce the judgment against the property.

Ratio Decidendi

The applicant failed to establish even a prima facie right to the relief sought. The facts, including the registration of the cession in favour of the first respondent and the absence of any credible evidence that the judgment debt was extinguished, support the respondent's entitlement to enforce the writs of execution. The applicant's reliance on correspondence and draft agreements was either inadmissible or of negligible probative value. The agreement between Edmunson and Dunlop did not result in the abandonment or waiver of Dunlop's rights under the mortgage bond, nor did it prevent the first respondent, as cessionary, from executing against the property. The previous judgment...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.