Van Zyl v Von Zyk Investments (Pty) Ltd and Others (49107/2015) [2018] ZAGPPHC 430 (12 June 2018)

Van Zyl v Von Zyk Investments (Pty) Ltd and Others (49107/2015) [2018] ZAGPPHC 430 (12 June 2018)

The court found that set-off automatically applied between the two costs orders, extinguishing the debt claimed by First Respondent. The sale in execution and related notices were improper and void, as the judgment was stale and no valid claim existed to attach or sell. The conduct of Second Respondent was found to be reckless, lacking in integrity, and deserving of censure. The court set aside all related notices, writs, and the sale in execution, ordered Second Respondent to pay costs de bonis propriis, and referred his conduct to the Law Society for investigation.

Citation
[2018] ZAGPPHC 430
Parties
Applicant: Jan Jacob Van Zyl; Respondent: Von Zyk Investments (Pty) Ltd; Respondent: Hartzenberg Inc Attorneys; Respondent: A J Van Rooyen; Respondent: Grosskopf Attorneys; Respondent: Sheriff, Centurion East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 June 2018
Case Number
49107/2015
Procedural Posture
Urgent Application / Final Judgment on Application to Set Aside Writ, Sale in Execution, and Related Notices
Outcome
Application granted; all impugned notices, writs, and sale in execution set aside; costs awarded against Second Respondent de bonis propriis; referral to Law Society ordered.
Judges
B Neukircher
Legal Topics
Set Off, Sale in Execution, Attorney Misconduct, Costs Order, Rule 66, Abandonment of Claim
Civil Procedure Commercial and Corporate Set Off Sale in Execution Attorney Misconduct Costs Order Rule 66 Abandonment of Claim

Case Brief

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Parties

Jan Jacob Van Zyl

Applicant

Von Zyk Investments (Pty) Ltd

Respondent

Hartzenberg Inc Attorneys

Respondent

A J Van Rooyen

Respondent

Grosskopf Attorneys

Respondent

Sheriff, Centurion East

Respondent

Procedural Posture

Urgent Application / Final Judgment on Application to Set Aside Writ, Sale in Execution, and Related Notices

Legal Issues

  1. 1 Whether set-off between the two costs orders automatically applied and extinguished the debt claimed by First Respondent.
  2. 2 Whether the sale in execution and related notices were valid and proper.
  3. 3 Whether the conduct of Second Respondent (Hartzenberg Inc) warrants a de bonis propriis costs order and referral to the Law Society.

Ratio Decidendi

The court found that set-off automatically applied between the two costs orders, extinguishing the debt claimed by First Respondent. The sale in execution and related notices were improper and void, as the judgment was stale and no valid claim existed to attach or sell. The conduct of Second Respondent was found to be reckless, lacking in integrity, and deserving of censure. The court set aside all related notices, writs, and the sale in execution, ordered Second Respondent to pay costs de bonis propriis, and referred his conduct to the Law Society for investigation.

Court Disposition

Application granted; all impugned notices, writs, and sale in execution set aside; costs awarded against Second Respondent de bonis propriis; referral to Law Society ordered.

Orders

  • The Notice of Appointment of Fourth Respondent as attorney of record for Applicant dated 5 May 2015 is set aside.
  • The Notice of Abandonment of Claim by Applicant dated 7 May 2015 is set aside.