Shackleton Credit Management (Pty) Ltd v Richmond and Another (2009/1065) [2013] ZAGPJHC 161 (21 May 2013)

Shackleton Credit Management (Pty) Ltd v Richmond and Another (2009/1065) [2013] ZAGPJHC 161 (21 May 2013)

The court found that the applicant had satisfied the requirements of rule 46(1)(a), as the movable property was insufficient and the first respondent had no other assets. The first respondent did not reside at the property, so the protection for primary residence under the rule did not apply. The respondent's personal circumstances did not justify refusal of the order, as she would not be rendered homeless and her right to housing was not affected. The argument for joinder of tenants was rejected, as their rights are not implicated at this stage and would only arise in eviction proceedings. The applicant was therefore entitled to execute against the immovable property.

Citation
[2013] ZAGPJHC 161
Parties
Applicant: Shackleton Credit Management (Pty) Ltd; Respondent: Stella Shamela Richmond; Respondent: Standard Bank of SA Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 May 2013
Case Number
2009/1065
Procedural Posture
Urgent Application / Application for Leave to Execute Against Immovable Property
Outcome
Application granted; leave to execute against immovable property; costs awarded to applicant.
Judges
DTvR Du Plessis
Legal Topics
Writ of Execution, Special Executability, Primary Residence Protection, Joinder of Parties, Rule 46 Application
Civil Procedure Land and Property Writ of Execution Special Executability Primary Residence Protection Joinder of Parties Rule 46 Application

Case Brief

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Parties

Shackleton Credit Management (Pty) Ltd

Applicant

Stella Shamela Richmond

Respondent

Standard Bank of SA Ltd

Respondent

Procedural Posture

Urgent Application / Application for Leave to Execute Against Immovable Property

Legal Issues

  1. 1 Whether the applicant is entitled to execute against the first respondent's immovable property.
  2. 2 Whether the requirements of rule 46(1)(a) have been met.
  3. 3 Whether tenants of the property must be joined as parties to the application.

Ratio Decidendi

The court found that the applicant had satisfied the requirements of rule 46(1)(a), as the movable property was insufficient and the first respondent had no other assets. The first respondent did not reside at the property, so the protection for primary residence under the rule did not apply. The respondent's personal circumstances did not justify refusal of the order, as she would not be rendered homeless and her right to housing was not affected. The argument for joinder of tenants was rejected, as their rights are not implicated at this stage and would only arise in eviction proceedings. The applicant was therefore entitled to execute against the immovable property.

Court Disposition

Application granted; leave to execute against immovable property; costs awarded to applicant.

Orders

  • The applicant is granted leave to execute against the first respondent's immovable property described as Erf 1530 Dunnottar, Registration Division IR, Ekurhuleni Metropolitan Municipality, Gauteng, held under Title Deed T54034/1998.
  • The Registrar of this Court is authorised to issue a writ of execution against the immovable property.