South Africa: North West High Court, Mafikeng

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST HIGH COURT, MAFIKENG

                                                                            CASE NO:  M 297/2016

In the matter between:

ANDRE PETRUS DU PREEZ N.O                                               1^st Applicant

WANDA DU PREEZ N.O                                                               2^nd Applicant

ANDRE PETRUS DU PREEZ                                                       3^rd Applicant

DAPHNE DU PREEZ N.O                                                              4^th Applicant

MR DU PREEZ                                                                                5^th Applicant

R.J BOREHOLE                                                                              6^th Applicant

I.D ROUSSEAU                                                                               7^th Applicant

and

GOUDINI CHROME (PTY) LTD                                                   1^st Respondent

SCORMIN CC                                                                               2^nd Respondent

DATE OF HEARING                                                         :           11 AUGUST 2017

DATE OF JUDGMENT                                                      :           01 SEPTEMBER 2017

COUNSEL FOR THE 1^st to 5^th APPLICANT     :           ADV. P SMIT

COUNSEL FOR THE 6^th & 7^th APPLICANT      :           ADV. VAN NIEUWENHUIZEN

COUNSEL FOR THE RESPONDENTS              :           ADV. KLOPPER

JUDGMENT ON LEAVE TO APPEAL

HENDRICKS J

Introduction

[1]        An application was launched on 10 June 2016 for the Sheriff to attach certain assets and to keep it safe pending the finalisation of an action to be instituted by the Applicants in the main application (Respondents in the application for leave to appeal) and other anxiliary relief. An interim order to operate with immediate effect was granted. The interim order was confirmed on 26^th January 2017. This is an application for leave to appeal to either the Full Bench of this Division or the Supreme Court of Appeal (SCA) against the order granted.

[2]        This Court in its judgment in the main application set out comprehensively the facts of the application and same need not be repeated herein. In paragraph [16] of the judgment, it is stated:

“[16]     Although the Eight and Ninth Respondents [6^th & 7^th Applicants] contended that they are bona fide purchasers, ownership of the property is however in dispute. The Applicants contended that they are the lawful owners of the property which was erroneously attached by the Sheriff and sold in execution of the debt of a third party (the Fifth Respondent) [5^th Applicant] by way of public auction. The relief prayed for is inter alia that the Sheriff be ordered to attach the assets and keep it safe "pending the finalization of an action to be instituted by the Applicants [Respondents in the application for leave to appeal] for a claim in respect of ownership of these assets.”

            To reiterate, the relief is interim pending the finalisation of an action to be instituted.

[3]        It was contended, inter alia, that the effect of the order is final in nature. I am holding a different view. The wording of paragraph 2.1 and 2.2 of the interim order is clear and unambiguous. It is for an interim order pending the finalisation of an action to be instituted to ultimately determine ownership of the property in question. Until then, the property in question must be kept safe [paragraph 2.1 of the order] and the Respondents in the main application (Applicants in the application for leave to appeal) are prohibited from removing the assets [paragraph 2.2 of the order].

[4]        In the exercise of its discretion whether or not to grant the interim relief, this Court considered all the elements for the granting of interim interdictory relief and need not restate it herein. I am therefore of the view that there are no reasonable prospects of success on appeal. Resultantly, the application for leave to appeal should be dismissed. Costs should also follow the result.

Order

Consequently, the following order is made:

(i)          The application for leave to appeal to either the Full Bench of this division or the Supreme Court of Appeal (SCA) is dismissed.

(ii)          The applicants in this application for leave to appeal are ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.

____________________

R D HENDRICKS

ACTING DEPUTY JUDGE PRESIDENT,

NORTH WEST HIGH COURT, MAHIKENG