About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 545
|
|
Byrne v Byrne and Others (29769/2018) [2018] ZAGPJHC 545 (28 August 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 29769/2018
In
the matter between:
DENNIS
JAMES ERNEST
BYRNE Applicant
and
DENISE
CAROL
BYRNE First
Respondent
DI
SIENA
ATTORNEYS Second
Respondent
SHERIFF
SANDTON
SOUTH Third
Respondent
JUDGMENT
(REASONS)
PETERSEN
AJ
:
[1]
This matter came before me as an urgent application on 17 August
2018. The application was struck from the roll with costs for
lack of
urgency.
[2] The applicant sought an order in
the following terms:
“
(a)
Dispensing with the forms and service prescribed by the Rules of this
Honourable Court and permitting this application to be
heard as one
of urgency.
(b)
Pending the final determination of the relief sought as set out in
Part B below, the First
Respondent
be:
(i)
Interdicted and restrained from proceeding with the Warrant of
Execution dated
the
19 July 2018 and issued by the Registrar of the above Honourable
Court on
the
20 July 2018 in terms of whereof the Third Respondent was directed to
attach
and take into execution the incorporeal movable assets of the
Applicant,
being
the available monies held in the Applicant’s Nedbank Savings
Account with
Account
Number […] for a sum of R480 000.00 (Four Hundred and
Eighty
Thousand Rand) plus interest at the rate of 10.25% per annum a
tempore
morae
and
costs
,
(“Writ of Execution”).
(ii)
Directing the Second and Third respondents to give effect to what is
contained in
(i)
above.
(iii)
Directing that the costs of this application be reserved for
determination with the
relief
sought in Part B below.
....”
[3]
At the hearing of the matter I admitted a replying affidavit deposed
to by the daughter of the applicant, albeit opposed by
the first
respondent. The replying affidavit reflected an amount of R547 392.60
debited to the Nedbank Savings Account of
the applicant pursuant to
the Writ of Execution.
[4]
Rule 6(12) of the Uniform Rules of Court regulates the enrolment of a
matter as urgent. In terms of rule 6(12)(b) an applicant
in every
affidavit in support of an urgent application
“…
must
set forth explicitly the circumstances which is averred render the
matter urgent and the reasons why the applicant claims that
the
applicant could not be afforded substantial redress at a hearing in
due course.”
The
applicant is therefore required to: (1) set forth explicitly the
circumstances which render the matter urgent; and (2) state
the
reasons why he cannot be afforded substantial redress at a hearing in
due course.
[5] The applicant premised the relief
sought on an urgent basis on the following basis: (1) that the
Sheriff had attached the amount
of R547 392.60, was proceeding
to execute thereon from the Nedbank Savings Account and he would not
be afforded substantial
redress in due course; (2) that the amount
was a duplication of purported arrear maintenance for the period 1
August 2017 to March
2018 in the sum of R320 000.00; (3) he
would suffer irreparable harm if the Third Writ is proceeded with and
not set aside,
as he would incur substantial costs recovering the
amounts from the First Respondent, if he is able to do so at all; (4)
the underlying
substratum of the order is the subject of the Rule
43(6) application and may fall away; (5) there has been an abuse of
the rules
and provisions of the Honourable Court relating to the
issuing of the Third Writ; the first respondent would have adequate
time
to deal with what is contained in Part B of the relief sought.
[6] The nub of the matter is that at
the time of the hearing the writ had been executed, which on the
applicant’s own case
was confirmed by the replying affidavit.
It follows that with the Writ having been executed it had accordingly
fallen away. In
addition the Sheriff of the court had been instructed
to release the funds by the first respondent. The first respondent
gave an
undertaking to return any surplus to the applicant, on a
concession of a miscalculation. The very basis of the relief sought
by
the applicant had been overtaken by the aforementioned sequence of
events and the need to approach the court on an urgent basis
was
questionable.
[7]
In seeking an interim interdict, the applicant had to meet the
following requirements:
1. a
prima facie
right;
2. a reasonable apprehension of harm
if the interdict is not granted;
3. no alternative satisfactory remedy;
4. the balance of convenience favours
the granting of the interim relief.
[8] The applicant failed to establish
any of the requirements for the granting of an interim interdict and
in particular that he
will suffer irreparable harm by having to incur
substantial costs to recover the amounts. He further failed to
demonstrate that
he has no alternative satisfactory remedy and
consequently why he would not be afforded substantial redress in due
course.
[9] In the result the striking the
application from the roll for lack of urgency with costs was issued.
______________________
AH
PETERSEN
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
For
the Applicant: Adv Coock
Instructed
by: Raymond Joffe & Associates
For the Respondents: Adv Van Beek
Instructed by: Di Siena Attorneys
Date Heard: 17 August 2018
Date of Reasons for Judgment: 28
August 2018