Moshesh v Standard Bank Of South Africa and Others (EL: 750/14, ECD: 1650/14) [2014] ZAECELLC 10 (30 September 2014)
The application was dismissed because the applicant failed to provide admissible evidence supporting her constitutional challenge to the Uniform Court Rules. The confirmatory affidavit relied upon was not properly served or filed. The factual averments regarding service of process and the section 129 notice were...
Source-derived case information.
- Citation
- [2014] ZAECELLC 10
- Parties
- Applicant: Senate Moshesh; Respondent: Standard Bank Of South Africa; Respondent: Minister of Justice and Constitutional Development; Respondent: Sheriff of the High Court
- Court
- Eastern Cape High Court, East London Local Court
- Jurisdiction
- South Africa
- Case Number
- EL: 750/14, ECD: 1650/14
- Procedural Posture
- Urgent Application / Application to Set Aside Sale in Execution
- Outcome
- Application dismissed with costs, including costs reserved on 23 May 2014.
- Judges
- J.E Smith
- Legal Topics
- Sale in Execution, Uniform Court Rules, Constitutionality Challenge, National Credit Act
Source-derived case record
Summary, issues, holding and outcome
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Parties
Senate Moshesh
Applicant
Standard Bank Of South Africa
Respondent
Minister of Justice and Constitutional Development
Respondent
Sheriff of the High Court
Respondent
Procedural Posture
Urgent Application / Application to Set Aside Sale in Execution
Legal Issues
- 1 Whether the sale in execution of the applicant's immovable property should be set aside.
- 2 Whether the relevant Uniform Court Rules governing sales in execution are unconstitutional.
- 3 Whether the applicant's factual averments regarding service of process and section 129 notice are credible.
Ratio Decidendi
The application was dismissed because the applicant failed to provide admissible evidence supporting her constitutional challenge to the Uniform Court Rules. The confirmatory affidavit relied upon was not properly served or filed. The factual averments regarding service of process and the section 129 notice were found to be false and misleading, as previously determined in the related rescission application. Critically, the sale in execution had been stayed by prior court order, meaning there was no longer a live dispute between the parties. As a result, the applicant was not entitled to raise constitutional issues in these proceedings, and the application was dismissed with costs.
Court Disposition
Application dismissed with costs, including costs reserved on 23 May 2014.
Orders
- The application is dismissed with costs, including the costs reserved on 23 May 2014.
Full Case Text
Judgment text and source record
45 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – EAST LONDON
EL: 750/14
ECD: 1650/14
Date Heard: 18/09/14
Date Delivered: 30/09/14
In the matter between:
SENATE MOSHESH
APPLICANT
AND
THE STANDARD BANK OF SOUTH AFRICA
1st RESPONDENT
THE MINISTER OF JUSTICE AND CONSTITUTIONAL 2ND RESPONDENT
DEVELOPMENT
THE SHERIFF OF THE HIGH COURT
3RD RESPONDENT
JUDGMENT
SMITH J:
[1] The applicant seeks an order setting aside the sale in execution of her immovable property. This application is related to the one brought by her under case number 1135/13, and wherein she sought the rescission of a default judgment against her. As was the case in that application, she also did not file a replying affidavit, and the matter had accordingly been set down for hearing by the respondent. Both applications were argued on the 18th of September 2014.
[2] In addition to repeating the allegations contained in the founding affidavit of the rescission application, the applicant also
challenged the constitutionality of various Court Rules relating to sales in execution. The factual averments relating to the service of court processes and service of the notice in terms of section 129 of the National Credit Act, 34 of 2005, are substantially the same as those proffered by her in the rescission application. They accordingly fall to be rejected as false and deliberately misleading for the same reasons stated in my judgment in that matter.
[3] In support of her contentions that the various impugned provisions of the Uniform Court Rules are unconstitutional, she relies on inadmissible hearsay evidence in the form of information conveyed to her by her attorney. Mr Sandi, who also appeared for her in this matter, has attempted to pull a rabbit out of the hat, so to speak, by belatedly producing a confirmatory affidavit by her attorney. That affidavit was, however, not served on the respondent, and neither has it been filed with the Registrar. It was therefore not properly before me. The applicant has consequently failed to establish any grounds for her assertions that the impugned Court Rules are unconstitutional.
[4] In any event, as Mr De La Harpe, for the respondent, correctly submitted, the applicant seeks to set aside a sale in execution which had not yet taken place. The impugned sale, which was scheduled for 23 May 2014, was stayed in terms of an order of this Court on the same day. There is therefore no longer a lis between the parties, and the applicant was accordingly not entitled to raise the constitutionality of the impugned Court Rules in these proceeding.
[5] In the result the application is dismissed with costs, including the costs reserved on 23 May 2014.
_____________________
J.E SMITH
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Applicant :
Advocate Sandi
Attorney for the Applicant : Makhanya
Incorporated
Suite 203-207
Werners Building
EAST LONDON
Ref: enm/Moshesh
Counsel for the Respondents : Advocate De La Harpe
Attorney for the Respondents : Drake Flemmer and Orsmond
Tewkesbury House
Southernwood
Ref: AJ Pringle/KK/VS/s1057
Date Heard
: 18 September 2014
Date Delivered
: 30 September 2014