Assetline South Africa (Pty) Ltd v Manhattan Delux Properties (Pty) Ltd and Others (30996/19) [2020] ZAGPJHC 97 (10 May 2020)

Assetline South Africa (Pty) Ltd v Manhattan Delux Properties (Pty) Ltd and Others (30996/19) [2020] ZAGPJHC 97 (10 May 2020)

The court found that the defence of lis pendens was inapplicable as the parties, causes of action, and subject matter in the pending litigation were not identical to the present application. Assetline's claim arose from a loan agreement and mortgage bond, whereas the other litigation concerned a sale agreement. The requirements of Rule 46 and Rule 46A were satisfied; the property was owned by a juristic person, and there was no credible evidence that it was the primary residence of any respondent. Even if Rule 46A applied, the respondents failed to provide substantiated evidence that execution would render Mr Matienga homeless or infringe his constitutional rights. The suretyship...

Citation
[2020] ZAGPJHC 97
Parties
Applicant: Assetline South Africa (Pty) Ltd; Respondent: Manhattan Delux Properties (Pty) Ltd; Respondent: Michael Denenga; Respondent: Edison Doko Hatiraram Matienga
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 May 2020
Case Number
30996/19
Procedural Posture
Money Judgment Application / Final Judgment
Outcome
Application granted. Judgment for the applicant for R5,000,000 plus interest and costs. Property declared specially executable. Registrar authorised to issue warrant of execution.
Judges
R M Keightley
Legal Topics
Special Executability, Suretyship Liability, Lis Pendens, Rule 46 and 46a, National Credit Act, Reserve Price in Execution
Civil Procedure Land and Property Commercial and Corporate Special Executability Suretyship Liability Lis Pendens Rule 46 and 46a National Credit Act +1 more

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Parties

Assetline South Africa (Pty) Ltd

Applicant

Manhattan Delux Properties (Pty) Ltd

Respondent

Michael Denenga

Respondent

Edison Doko Hatiraram Matienga

Respondent

Procedural Posture

Money Judgment Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to a money judgment against the respondents and an order declaring the property specially executable.
  2. 2 Whether the defence of lis pendens applies due to pending litigation involving the property.
  3. 3 Whether the requirements of Rule 46 and Rule 46A of the Uniform Rules of Court have been met.

Ratio Decidendi

The court found that the defence of lis pendens was inapplicable as the parties, causes of action, and subject matter in the pending litigation were not identical to the present application. Assetline's claim arose from a loan agreement and mortgage bond, whereas the other litigation concerned a sale agreement. The requirements of Rule 46 and Rule 46A were satisfied; the property was owned by a juristic person, and there was no credible evidence that it was the primary residence of any respondent. Even if Rule 46A applied, the respondents failed to provide substantiated evidence that execution would render Mr Matienga homeless or infringe his constitutional rights. The suretyship...

Court Disposition

Application granted. Judgment for the applicant for R5,000,000 plus interest and costs. Property declared specially executable. Registrar authorised to issue warrant of execution.

Orders

  • The respondents shall pay, jointly and severally, to the applicant the amount of R5,000,000.
  • Interest on R5,000,000 from date of judgment to date of final payment.