Phaweni and Another v Changing Tides 17 (Proprietary) Limited N.O and Others (24441/18) [2020] ZAGPPHC 612 (20 October 2020)

Phaweni and Another v Changing Tides 17 (Proprietary) Limited N.O and Others (24441/18) [2020] ZAGPPHC 612 (20 October 2020)

The court found that the applicants failed to make out a case for the relief sought. The sale in execution was conducted pursuant to a valid court order, and the property was not a primary residence, rendering Rule 46A inapplicable. Even if Rule 46A applied, personal service is not mandatory if the court is satisfied with the manner of service. The applicants did not specify grounds for alleged non-compliance with procedural rules and did not seek rescission of judgment. The buyer was not cited as a party, and allegations regarding legal fees were speculative and unsupported. The application was defective and legally untenable, warranting dismissal with costs on an attorney and client scale.

Citation
[2020] ZAGPPHC 612
Parties
Applicant: Tiyani Phaweni; Applicant: Lebogang Mologadi Phaweni; Respondent: Changing Tides 17 (Proprietary) Limited N.O; Respondent: The Sheriff of the High Court (Roodepoort South); Respondent: Purported Buyer of the Property in Question from 2nd Respondent; Respondent: The Office of the Title Deeds Registry Johannesburg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 October 2020
Case Number
24441/18
Procedural Posture
Urgent Application / Application for Temporary Interdict and Suspension of Execution
Outcome
Application dismissed with costs on an attorney and client scale.
Judges
H J de Vos
Legal Topics
Sale in Execution, Rule 46a Compliance, Temporary Interdict, Rescission of Judgment, Service of Process
Civil Procedure Land and Property Sale in Execution Rule 46a Compliance Temporary Interdict Rescission of Judgment Service of Process

Case Brief

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Parties

Tiyani Phaweni

Applicant

Lebogang Mologadi Phaweni

Applicant

Changing Tides 17 (Proprietary) Limited N.O

Respondent

The Sheriff of the High Court (Roodepoort South)

Respondent

Purported Buyer of the Property in Question from 2nd Respondent

Respondent

The Office of the Title Deeds Registry Johannesburg

Respondent

Procedural Posture

Urgent Application / Application for Temporary Interdict and Suspension of Execution

Legal Issues

  1. 1 Whether the sale in execution of the applicants' property was unlawful due to alleged non-compliance with Rule 46A and other procedural rules.
  2. 2 Whether the applicants are entitled to a temporary interdict suspending the execution and transfer of the property.
  3. 3 Whether the applicants have made out a case for rescission or suspension of the judgment and sale.

Ratio Decidendi

The court found that the applicants failed to make out a case for the relief sought. The sale in execution was conducted pursuant to a valid court order, and the property was not a primary residence, rendering Rule 46A inapplicable. Even if Rule 46A applied, personal service is not mandatory if the court is satisfied with the manner of service. The applicants did not specify grounds for alleged non-compliance with procedural rules and did not seek rescission of judgment. The buyer was not cited as a party, and allegations regarding legal fees were speculative and unsupported. The application was defective and legally untenable, warranting dismissal with costs on an attorney and client scale.

Court Disposition

Application dismissed with costs on an attorney and client scale.

Orders

  • The application is dismissed.
  • The first and second applicants are ordered to pay the costs of this application on an attorney and client scale.