Smit v Cedex Investments (Pty) Ltd (39354/06) [2008] ZAGPHC 20 (29 January 2008)

Smit v Cedex Investments (Pty) Ltd (39354/06) [2008] ZAGPHC 20 (29 January 2008)

The court found that the service of the warrant of attachment and execution by registered post was irregular, as there was no court order authorizing such service in terms of Rule 46(3). Furthermore, there was no proof of service on the registrar of deeds as required. The plaintiff's conduct in pursuing piecemeal litigation and opposing the rescission application was unjustified, amounting to an abuse of court process. The defendant was justified in approaching the court to set aside the warrant and sale in execution. Consequently, the plaintiff was ordered to pay the defendant's costs occasioned by the opposition to the application, including reserved costs, while being entitled only to...

Citation
[2008] ZAGPHC 20
Parties
Applicant: Parathena Maria Smit; Respondent: Cedex Investments (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
29 January 2008
Case Number
39354/06
Procedural Posture
Urgent Application / Costs Determination Following Settlement and Rescission Application
Outcome
The respondent (plaintiff) is ordered to pay the defendant's costs occasioned by the opposition of this application, including reserved costs. The respondent is entitled to costs on an unopposed scale up to the date of granting of the default judgment on 6 March 2007.
Judges
Mavundla
Legal Topics
Rescission of Judgment, Writ of Execution, Service of Process, Costs Award, Settlement Agreement
Civil Procedure Rescission of Judgment Writ of Execution Service of Process Costs Award Settlement Agreement

Case Brief

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Parties

Parathena Maria Smit

Applicant

Cedex Investments (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Costs Determination Following Settlement and Rescission Application

Legal Issues

  1. 1 Whether the service of the warrant of attachment and execution was proper and in accordance with Rule 46(3).
  2. 2 Whether the plaintiff was justified in opposing the application for rescission and setting aside of the warrant of attachment.
  3. 3 Who should bear the costs of the application for rescission and related proceedings.

Ratio Decidendi

The court found that the service of the warrant of attachment and execution by registered post was irregular, as there was no court order authorizing such service in terms of Rule 46(3). Furthermore, there was no proof of service on the registrar of deeds as required. The plaintiff's conduct in pursuing piecemeal litigation and opposing the rescission application was unjustified, amounting to an abuse of court process. The defendant was justified in approaching the court to set aside the warrant and sale in execution. Consequently, the plaintiff was ordered to pay the defendant's costs occasioned by the opposition to the application, including reserved costs, while being entitled only to...

Court Disposition

The respondent (plaintiff) is ordered to pay the defendant's costs occasioned by the opposition of this application, including reserved costs. The respondent is entitled to costs on an unopposed scale up to the date of granting of the default judgment on 6 March 2007.

Orders

  • The respondent (plaintiff) is ordered to pay the defendant's costs occasioned by the opposition of this application, including the reserved costs of 10 December 2007.
  • The respondent (plaintiff) is entitled to costs on an unopposed scale up to the date of granting of the default judgment on 6 March 2007.