Minister of Police and Another v King Williams Town Sherrif and Another (1736/2012) [2012] ZAECGHC 51 (21 June 2012)
The court found that the Applicants had established all the requirements for interim relief, including a prima facie right to the vehicle, irreparable harm if the vehicle were sold, and no adequate alternative remedy. The Respondents' undertaking not to sell the vehicle did not negate the Applicants' entitlement to...
Source-derived case information.
- Citation
- [2012] ZAECGHC 51
- Parties
- Applicant: Minister of Police; Applicant: National Commissioner of Police; Respondent: King Williams Town Sheriff; Respondent: Mancotywa Ndzabela Inc.
- Court
- Eastern Cape High Court, Grahamstown
- Jurisdiction
- South Africa
- Case Number
- 1736/2012
- Procedural Posture
- Urgent Application / Interim Relief (rule Nisi)
- Outcome
- Interim relief granted. Rule nisi and interim interdict issued in favour of the Applicants.
- Judges
- J.E Smith
- Legal Topics
- Interim Interdict, Attachment and Removal, Sale in Execution, Unlawful Attachment
Source-derived case record
Summary, issues, holding and outcome
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Parties
Minister of Police
Applicant
National Commissioner of Police
Applicant
King Williams Town Sheriff
Respondent
Mancotywa Ndzabela Inc.
Respondent
Procedural Posture
Urgent Application / Interim Relief (rule Nisi)
Legal Issues
- 1 Whether the attachment and removal of the state-owned vehicle by the First Respondent was unlawful.
- 2 Whether the Applicants were entitled to interim relief interdicting the sale of the vehicle.
- 3 Whether the Applicants were obliged to accept the Respondents' undertaking not to sell the vehicle pending finalization of proceedings.
Ratio Decidendi
The court found that the Applicants had established all the requirements for interim relief, including a prima facie right to the vehicle, irreparable harm if the vehicle were sold, and no adequate alternative remedy. The Respondents' undertaking not to sell the vehicle did not negate the Applicants' entitlement to a court order, as they were under no obligation to accept such an undertaking. The attachment and removal of the vehicle was unlawful since the underlying debt had been settled prior to the attachment. Accordingly, the court granted the interim interdict as sought by the Applicants.
Court Disposition
Interim relief granted. Rule nisi and interim interdict issued in favour of the Applicants.
Orders
- The attachment and removal of the state-owned vehicle by the First Respondent is declared unlawful.
- The First Respondent is interdicted from selling the vehicle pending finalization of these proceedings.
Full Case Text
Judgment text and source record
39 paragraphs
3
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – GRAHAMSTOWN
Case no: 1736/2012
Date Heard: 30/05/2012
Date Delivered: 21/06/2012
In the matter between:
MINISTER OF POLICE …........................................................1ST APPLICANT
NATIONAL COMMISSIONER OF POLICE …............................2ND APPLICANT
And
KING WILLIAMS TOWN SHERIFF …...................................1ST RESPONDENT
MANCOTYWA NDZABELA INC. ….......................................2ND RESPONDENT
REASONS FOR JUDGMENT
SMITH J:
[1] On 30 May 2012 I granted a rule nisi and interim relief in terms of paragraph 2 of the Applicant’s Notice of Motion, and stated that my reasons would follow. These are my reasons.
[2] The Applicants brought urgent motion proceedings for an order, inter alia, declaring the attachment and removal of a state-owned vehicle by the First Respondent to be unlawful, and interdicting the latter from selling the vehicle.
[3] It was common cause that the First Respondent attached and removed the vehicle from the Applicants’ Zwelitsha premises on 17 February 2012. The attachment purportedly related to a debt in the amount of R113,803 arising from a damages award and cost order in the civil claim of Nofundile Makhumsha v Minister of Safety and Security and Another (case number: 92/2010).
[4] Applicants aver that the First Respondent’s employee, one Fourie, had proceeded with the attachment and removed the vehicle despite the fact that he had been informed that the debt had been settled in full during November 2011.
[5] The Second Respondent has since refused to release the vehicle because the Applicant allegedly still owes it money in respect of other matters. The sale in execution was scheduled for 31 May 2012.
[6] Mr Silandela,who appeared for the Respondents, was constrained to concede that the Applicants had established all the requisites for interim relief.
[7] He submitted however that the Respondents had arranged for the sale in execution to be cancelled, and were prepared to give an undertaking that the vehicle would not be sold pending the finalization of these proceedings. He argued that there was therefore no need for an interim interdict.
[8] Ms Mqobi, for the Applicants, however stated that they were not prepared to accept the undertaking and applied for an interim interdict.
[9] I was of the view that, having established all the requirements for interim relief, the Applicants were entitled to such an order, and were under no obligation to accept the undertaking.
[10] It was on this basis that I granted the order.
______________________
J.E SMITH
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Applicants : Ms Mqobi
Attorney for the Applicants : NN Dullabh& Co.
5 Betram Street
GRAHAMSTOWN
6140
Counsel for the Respondents : Mr Silandela
Attorney for the Respondents : Neville Borman and Botha
22 Hill Street
(Ref: Mr J Powers/Rene)
Date Heard : 30 May 2012
Date Delivered : 21 June 2012