Revolver Creek Trust CC v Above Average Investments Corporation 20 CC (3473/2021) [2022] ZAMPMBHC 79 (18 October 2022)

Revolver Creek Trust CC v Above Average Investments Corporation 20 CC (3473/2021) [2022] ZAMPMBHC 79 (18 October 2022)

The court found that the applicant had exhausted all reasonable avenues to recover the judgment debt, including attempts to execute against moveable assets and entering into a settlement agreement, which the respondent failed to honour. The Sheriff's returns of service indicated that the respondent had no attachable moveable assets. The respondent's explanations did not constitute a valid defense to the relief sought. The properties in question are vacant land and not residential homes. The court was satisfied that good cause existed to declare the specified immoveable properties specially executable under Rule 46(1)(a)(ii).

Citation
[2022] ZAMPMBHC 79
Parties
Applicant: Revolver Creek Trust CC; Respondent: Above Average Investments Corporation 20 CC
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
18 October 2022
Case Number
3473/2021
Procedural Posture
Civil Application / Application for Special Executability Order
Outcome
Application granted. The specified immoveable properties are declared specially executable.
Judges
Greyling-Coetzer
Legal Topics
Rule 46 Special Executability, Default Judgment Enforcement, Writ of Execution, Settlement Agreement Breach
Civil Procedure Land and Property Rule 46 Special Executability Default Judgment Enforcement Writ of Execution Settlement Agreement Breach

Case Brief

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Parties

Revolver Creek Trust CC

Applicant

Above Average Investments Corporation 20 CC

Respondent

Procedural Posture

Civil Application / Application for Special Executability Order

Legal Issues

  1. 1 Whether the respondent's immoveable properties should be declared specially executable under Rule 46.
  2. 2 Whether the applicant has demonstrated that the respondent lacks sufficient moveable assets to satisfy the judgment debt.
  3. 3 Whether good cause exists for granting the order sought.

Ratio Decidendi

The court found that the applicant had exhausted all reasonable avenues to recover the judgment debt, including attempts to execute against moveable assets and entering into a settlement agreement, which the respondent failed to honour. The Sheriff's returns of service indicated that the respondent had no attachable moveable assets. The respondent's explanations did not constitute a valid defense to the relief sought. The properties in question are vacant land and not residential homes. The court was satisfied that good cause existed to declare the specified immoveable properties specially executable under Rule 46(1)(a)(ii).

Court Disposition

Application granted. The specified immoveable properties are declared specially executable.

Orders

  • Portion 2 of Farm Camelot, No. 320, Registration Division J.U., Province of Mpumalanga, held by deed of transfer T2481/2018, is declared specially executable.
  • Portion 3 of Farm Camelot, No. 320, Registration Division J.U., Province of Mpumalanga, held by deed of transfer T2481/2018, is declared specially executable.