Zeman v Quickelberge and Another (C45/2010) [2010] ZALCCT 1 (29 November 2010)

Zeman v Quickelberge and Another (C45/2010) [2010] ZALCCT 1 (29 November 2010)

The court found that the applicant had satisfied the requirements for judicial scrutiny as set out in Jaftha and subsequent cases. The debt was incurred through a court order after the debtor's evasive conduct, no attempts were made by the debtor to pay, and the debtor has substantial assets and income. The amount of the debt is minor relative to the debtor's means, and the debtor's refusal to pay is unjustified. The constitutional right to adequate housing does not protect the debtor in these circumstances, as the debt is extraneous to the property and the debtor is not at risk of losing adequate housing. Therefore, leave to execute against the immoveable property is granted.

Citation
[2010] ZALCCT 1
Parties
Applicant: Bernadette Zeman; Respondent: Anthony Charles Quickelberge; Respondent: The Railway Shed CC
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
29 November 2010
Case Number
C45/2010
Procedural Posture
Urgent Application / Application for Leave to Execute Against Immoveable Property Following Prior Judgment and Nulla Bona Return on Movable Property.
Outcome
Leave to execute against the immoveable property of the first respondent is granted. The first respondent is ordered to pay costs on an attorney and client scale.
Judges
Steenkamp
Legal Topics
Execution Against Immoveable Property, Judicial Scrutiny, Costs Order, Constitutional Right to Housing
Civil Procedure Execution Against Immoveable Property Judicial Scrutiny Costs Order Constitutional Right to Housing

Case Brief

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Parties

Bernadette Zeman

Applicant

Anthony Charles Quickelberge

Respondent

The Railway Shed CC

Respondent

Procedural Posture

Urgent Application / Application for Leave to Execute Against Immoveable Property Following Prior Judgment and Nulla Bona Return on Movable Property.

Legal Issues

  1. 1 Whether leave should be granted to execute against the judgment debtor's immoveable property.
  2. 2 Whether judicial scrutiny is required before issuing a writ against immoveable property.
  3. 3 Whether the circumstances justify execution against immoveable property given the constitutional right to adequate housing.

Ratio Decidendi

The court found that the applicant had satisfied the requirements for judicial scrutiny as set out in Jaftha and subsequent cases. The debt was incurred through a court order after the debtor's evasive conduct, no attempts were made by the debtor to pay, and the debtor has substantial assets and income. The amount of the debt is minor relative to the debtor's means, and the debtor's refusal to pay is unjustified. The constitutional right to adequate housing does not protect the debtor in these circumstances, as the debt is extraneous to the property and the debtor is not at risk of losing adequate housing. Therefore, leave to execute against the immoveable property is granted.

Court Disposition

Leave to execute against the immoveable property of the first respondent is granted. The first respondent is ordered to pay costs on an attorney and client scale.

Orders

  • The applicant is granted leave to execute against the immoveable property of the first respondent.
  • The first respondent is ordered to pay the applicant's costs on an attorney and client scale.