STT Sales (Pty) Ltd v Darrell and Another (21843/11) [2014] ZAGPJHC 420 (16 October 2014)

STT Sales (Pty) Ltd v Darrell and Another (21843/11) [2014] ZAGPJHC 420 (16 October 2014)

The court found that the first respondent admitted the judgment debt and that there was no factual dispute regarding his indebtedness. The respondent's claim of dual primary residences was rejected as contradictory, and the court held that a person cannot have two primary residences for the purposes of...

Source-derived case information.

Citation
[2014] ZAGPJHC 420
Parties
Applicant: STT Sales (Pty) Ltd; Respondent: Darrell; Respondent: Firstrand Bank Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 October 2014
Case Number
21843/11
Procedural Posture
Civil Application / Application for Declaration of Immovable Property as Specially Executable
Outcome
Application granted. The property is declared specially executable and costs awarded against the first respondent.
Judges
P L Carstensen
Legal Topics
Special Execution, Rule 46, Adequate Housing, Constitutional Rights
Civil Procedure Land and Property Special Execution Rule 46 Adequate Housing Constitutional Rights

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Parties

STT Sales (Pty) Ltd

Applicant

Darrell

Respondent

Firstrand Bank Ltd

Respondent

Procedural Posture

Civil Application / Application for Declaration of Immovable Property as Specially Executable

Legal Issues

  1. 1 Whether the applicant is entitled to have the first respondent's immovable property declared specially executable.
  2. 2 Whether execution against the property infringes the first respondent's right to adequate housing under section 26 of the Constitution.
  3. 3 Whether the first respondent's claim of dual primary residences precludes execution.

Ratio Decidendi

The court found that the first respondent admitted the judgment debt and that there was no factual dispute regarding his indebtedness. The respondent's claim of dual primary residences was rejected as contradictory, and the court held that a person cannot have two primary residences for the purposes of constitutional protection. The respondent resides at another property, so execution against the property in question would not affect his right to adequate housing under section 26 of the Constitution. The requirements for special execution under Rule 46(1)(a)(i) were satisfied, and there was no abuse of process. The applicant was entitled to the relief sought.

Court Disposition

Application granted. The property is declared specially executable and costs awarded against the first respondent.

Orders

  • The immovable property described in the order is declared specially executable in execution of the judgment under case number 46734/10 granted on 7 December 2010.
  • The first respondent is ordered to pay the costs of this application on the attorney and client scale.