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[2020] ZAGPJHC 20
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A R v C R (1791/2009) [2020] ZAGPJHC 20 (30 January 2020)
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: 1791/2009
In
the matter between:
A
R
Applicant
And
C
R
First respondent
THE
SHERIFF OF THE HIGH COURT,
SANDTON
SOUTH
Second
respondent
J
U D G M E N T
MODIBA
J
[1]
This is an application to have the writ of execution issued by the
first respondent on 18 September 2018 and the attachment
effected
pursuant thereto, invalid and set aside. The applicant also seeks the
costs of the application. The first respondent opposes
it. The second
respondent did not enter the fray.
[2]
The parties were married to each other. Their marriage was dissolved
by a decree of divorce, granted on 4 November 2004, incorporating
a
settlement agreement. Regrettably the litigation between the parties
arising therefrom has been raging since then, primarily
relating to
disputes in respect of the parties rights and obligations in respect
of their minor children including the applicant’s
maintenance
obligation in respect of the minor children. In August 2010, the
parties concluded an amended settlement agreement.
A material term of
the original and amended settlement agreement is that the parties’
minor children would be raised according
to the Jewish faith.
[3]
Since 2018, the parties have been embroiled in a dispute relating to
the applicant’s maintenance obligations under the
settlement
agreements. This dispute was pending in the maintenance court when
the respondent on 3 October 2018, caused the impugned
writ to be
issued out of this court for the maintenance amounts that are subject
to the maintenance claim pending in the maintenance
court. The
sheriff served it on the respondent on 9 October 2018. It authorizes
him to attach and take into execution the applicant’s
goods in
the amount of R356 522.59 pursuant to a judgment of this court dated
17 August 2010 and an order dated 4 November 2005.
[4]
The applicant seeks the writ set aside on the following grounds:
[4.1] it is not
accompanied by an affidavit quantifying the amount specified in the
writ;
[4.2] it does not specify
the provisions in the settlement agreement on which the respondent
relies;
[4.3] no supporting
documents for the relevant expenses are attached.
[5]
The respondent has refused to provide this information despite
requests by the applicant. She attempted to quantify them in
her
answering affidavit in this application.
[6]
The applicant disputes that he is indebted to her for some of the
relevant amounts for several reasons:
[6.1] the school fees
claimed are not in respect of a Jewish School as required in terms of
the settlement agreements;
[6.2] their
quantification is uncertain in relation to whether one of the minor
children has become self- supporting and whether
the respondent
included the maintenance portion of this child in the quantification
of the writ amount
[7]
The writ is liable to be set aside for two reasons:
[7.1] it is not apparent
from the writ that it was issued in conformity with the settlement
agreement;
[1]
[7.2] the basis for the
amount to be executed under the writ is unquantifiable and in dispute
between the parties.
[1]
[8]
The basis on which the first respondent contends in these
proceedings, that the writ was correctly issued does not assist
her,
as the writ has to comply with the above requirements when it is
issued. It is an instruction to the sheriff to give effect
to the
orders upon which it is based. Given the grounds upon which the
applicant relies in this application, the writ is materially
defective. It is rather belated for the first respondent to explain
the basis and the quantification of the judgment debt in the
answering affidavit. Further, the quantification remains in dispute.
Therefore the writ may not be good solely on the first respondent’s
version.
[9]
In the premises, the following order is made:
ORDER
1. The writ of execution
issued by this court on 20 September 2018 is declared to be invalid
and set aside;
2. The notice of
attachment issued pursuant to the above writ is declared invalid and
set aside;
3. The first respondent
shall pay both the costs of Part A and Part B of the application.
__________________________
MADAM
JUSTICE
L T MODIBA
JUDGE
OF THE HIGH COURT,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARENCES
Counsel
for plaintiff:
Advocate L Segal
Attorney
for plaintiff:
Noa Kinstler Attorneys
Counsel
for defendant:
Advocate R Morgan Courtenay
Attorney
for defendant:
Heather Sterling Attorneys
Date
of hearing:
22 October 2019
Date
of judgment:
30 January 2020
[1]
De
Crespigney v De Crespigney
1959 (1) SA 149 (N)
[1]
Sachs v
Katz
1955 (1) SA 67
T at 72C-G