Technologies Acceptances Receivables (Pty) Ltd v Thlako and Others (36598/2016) [2021] ZAGPJHC 485 (12 January 2021)

Technologies Acceptances Receivables (Pty) Ltd v Thlako and Others (36598/2016) [2021] ZAGPJHC 485 (12 January 2021)

The court found that the first respondent does not reside at the property, and therefore it is not his primary residence. As such, the procedural protections applicable to execution against primary residences do not apply. The application is not for foreclosure, as the applicant does not hold a bond over the property, but rather for execution against the first respondent's undivided half share. The points in limine raised by the respondents regarding procedural defects and prejudice were dismissed, as the applicant had referenced the requisite statements and a reserve price was not required. The rights of the second respondent and other occupants remain unaffected, as no order is sought...

Citation
[2021] ZAGPJHC 485
Parties
Applicant: Technologies Acceptances Receivables (Pty) Ltd; Respondent: Lesiba Johannes Thlako; Respondent: Violet Mokoko Mojela; Respondent: ABSA Bank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 January 2021
Case Number
36598/2016
Procedural Posture
Urgent Application / Application for Declaration of Property Specifically Executable and Writ of Execution
Outcome
Application granted. The first respondent's undivided share in the property is declared specifically executable. Writ of execution issued. Costs awarded against the first respondent on attorney and client scale.
Judges
C I Moosa
Legal Topics
Specific Executability, Writ of Execution, Primary Residence, Practice Manual Compliance, Costs Award
Civil Procedure Land and Property Specific Executability Writ of Execution Primary Residence Practice Manual Compliance Costs Award

Case Brief

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Parties

Technologies Acceptances Receivables (Pty) Ltd

Applicant

Lesiba Johannes Thlako

Respondent

Violet Mokoko Mojela

Respondent

ABSA Bank Limited

Respondent

Procedural Posture

Urgent Application / Application for Declaration of Property Specifically Executable and Writ of Execution

Legal Issues

  1. 1 Whether the first respondent's undivided share in the immovable property should be declared specifically executable.
  2. 2 Whether the property constitutes the first respondent's primary residence, thereby invoking additional procedural protections.
  3. 3 Whether the application complies with the Practice Manual and Uniform Rules of Court regarding execution against immovable property.

Ratio Decidendi

The court found that the first respondent does not reside at the property, and therefore it is not his primary residence. As such, the procedural protections applicable to execution against primary residences do not apply. The application is not for foreclosure, as the applicant does not hold a bond over the property, but rather for execution against the first respondent's undivided half share. The points in limine raised by the respondents regarding procedural defects and prejudice were dismissed, as the applicant had referenced the requisite statements and a reserve price was not required. The rights of the second respondent and other occupants remain unaffected, as no order is sought...

Court Disposition

Application granted. The first respondent's undivided share in the property is declared specifically executable. Writ of execution issued. Costs awarded against the first respondent on attorney and client scale.

Orders

  • The first respondent's undivided share in the immovable property described as Unit [....] Tygerberg, Berea, Gauteng, Scheme Number 122/1992, City of Johannesburg held under Deed of Transfer Number ST22373/2002 is declared specifically executable.
  • A writ of execution is issued in respect of the property, as envisaged in terms of Uniform Rule 46(1)(a) of the Uniform Rules of Court.