N.S.B v A.F.B (260/2019) [2022] ZAECMKHC 85 (25 October 2022)

N.S.B v A.F.B (260/2019) [2022] ZAECMKHC 85 (25 October 2022)

The court found that the applicant failed to establish that the sheriff had properly executed against the respondent's movable property before seeking execution against the immovable property. The sheriff's nulla bona return was found to be unreliable and impeachable, as it was inconsistent with the objective facts, including the removal of a vehicle at the same time as the return was filed. The applicant did not provide sufficient evidence that the sheriff followed the correct process required by Rule 45(3), nor was there a proper return of service confirming attempts to execute at the respondent's residence. As a result, the requirements of Rule 46(1)(a) were not met, and the...

Citation
[2022] ZAECMKHC 85
Parties
Applicant: N.S.B; Respondent: A.F.B
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
25 October 2022
Case Number
260/2019
Procedural Posture
Urgent Application / Application for Order Declaring Immovable Property Executable and Issuance of Writ of Execution
Outcome
Application dismissed with costs.
Judges
T.V Norman
Legal Topics
Writ of Execution, Nulla Bona Return, Rule 45 and 46 Uniform Rules, Execution Against Immovable Property, Costs Award
Civil Procedure Land and Property Writ of Execution Nulla Bona Return Rule 45 and 46 Uniform Rules Execution Against Immovable Property Costs Award

Case Brief

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Parties

N.S.B

Applicant

A.F.B

Respondent

Procedural Posture

Urgent Application / Application for Order Declaring Immovable Property Executable and Issuance of Writ of Execution

Legal Issues

  1. 1 Whether the applicant has satisfied the requirements for declaring the respondent's immovable property executable.
  2. 2 Whether the sheriff's nulla bona return is reliable and sufficient to justify execution against immovable property.
  3. 3 Whether the applicant complied with Rule 45 and Rule 46 of the Uniform Rules of Court before seeking execution against immovable property.

Ratio Decidendi

The court found that the applicant failed to establish that the sheriff had properly executed against the respondent's movable property before seeking execution against the immovable property. The sheriff's nulla bona return was found to be unreliable and impeachable, as it was inconsistent with the objective facts, including the removal of a vehicle at the same time as the return was filed. The applicant did not provide sufficient evidence that the sheriff followed the correct process required by Rule 45(3), nor was there a proper return of service confirming attempts to execute at the respondent's residence. As a result, the requirements of Rule 46(1)(a) were not met, and the...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.