Tirepoint (Pty) Ltd v Patrew Transport CC and Others (10/13125) [2012] ZAGPJHC 34 (16 March 2012)

Tirepoint (Pty) Ltd v Patrew Transport CC and Others (10/13125) [2012] ZAGPJHC 34 (16 March 2012)

The applicant has established that the respondents failed to satisfy the judgment debt and that the sheriff made multiple unsuccessful attempts to execute against their movable property, resulting in nulla bona returns. The respondents did not identify any movable assets available for execution. The joinder of the...

Source-derived case information.

Citation
[2012] ZAGPJHC 34
Parties
Applicant: Tirepoint (Pty) Ltd; Respondent: Patrew Transport CC; Respondent: Ivan Mohammed; Respondent: Patricia Ruth Mohammed; Respondent: Alicia Bronwaine Lesley-Anne Mohammed
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 March 2012
Case Number
10/13125
Procedural Posture
Civil Application / Application for Order Declaring Immovable Property Executable After Summary Judgment
Outcome
Application granted. The specified immovable properties are declared executable and costs are awarded to the applicant.
Judges
D S S Moshidi
Legal Topics
Declaration of Executability, Nulla Bona Return, Suretyship in Community of Property, Constitutional Right to Housing
Civil Procedure Land and Property Declaration of Executability Nulla Bona Return Suretyship in Community of Property Constitutional Right to Housing

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Parties

Tirepoint (Pty) Ltd

Applicant

Patrew Transport CC

Respondent

Ivan Mohammed

Respondent

Patricia Ruth Mohammed

Respondent

Alicia Bronwaine Lesley-Anne Mohammed

Respondent

Procedural Posture

Civil Application / Application for Order Declaring Immovable Property Executable After Summary Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to have the specified immovable properties declared executable to satisfy the judgment debt.
  2. 2 Whether the applicant has exhausted remedies against the respondents' movable property as required by law.
  3. 3 Whether the third respondent's lack of written consent to the suretyship, as spouse in community of property, invalidates the execution.

Ratio Decidendi

The applicant has established that the respondents failed to satisfy the judgment debt and that the sheriff made multiple unsuccessful attempts to execute against their movable property, resulting in nulla bona returns. The respondents did not identify any movable assets available for execution. The joinder of the third and fourth respondents was properly effected. The third respondent's lack of written consent to the suretyship is not a valid defence, as the second respondent acted in the ordinary course of business. The respondents failed to demonstrate that execution would infringe their constitutional right to adequate housing, as they are not indigent, have not provided details of...

Court Disposition

Application granted. The specified immovable properties are declared executable and costs are awarded to the applicant.

Orders

  • An order is granted in terms of prayers 1 and 2 of the notice of motion dated 23 February 2011.
  • The costs of the application are costs in the execution.