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2021
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[2021] ZAGPJHC 13
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Avusa Entertainment Investments (Pty) Limited v Acucap Investments (Pty) Limited and Another (14946/2019) [2021] ZAGPJHC 13 (15 January 2021)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
CASE
NO
:
14946/2019
DATE
:
15
th
January 2021
In
the matter between:
AVUSA
ENTERTAINMENT INVESTMENTS (PTY) LIMITED
Applicant
and
ACUCAP INVESTMENTS
(PTY) LIMITED
First Respondent
ERASMUS
,
MRS ANET t/a THE SHERIFF OF THE
HIGH
COURT,
KRUGERSDORP
Second Respondent
Coram:
Adams J
Heard
:
14 January 2021 – The ‘virtual hearing’ of
the
urgent application was conducted as a videoconference on the
Microsoft Teams
digital platform.
Delivered:
15 January 2021 –
This judgment was handed down electronically by circulation to the
parties' representatives by email, by
being uploaded to the
CaseLines
system of the GLD and by release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 15 January 2021.
Summary:
Urgent application – to set aside
warrant of execution and ejectment writ –
no steps taken
by applicant to have underlying judgment rescinded – case not
made out for urgency – application struck
from the roll –
ORDER
(1)
The applicant’s urgent application be
and is hereby struck from the Urgent Court roll due to lack of
urgency.
(2)
The applicant shall pay the first
respondent’s costs of this urgent application.
JUDGMENT
Adams J:
[1].
The applicant
leased from the first respondent business premises at the Key West
Shopping Centre (‘the premises’), from
which premises the
applicant ran a cinema entertainment complex. During 2019 the
applicant had fallen into arrears with the rental
and ancillary
charges payable in terms of the written commercial lease agreement
between it and the first respondent. The first
respondent proceeded
with the issue of a summons against the applicant and on the 1
st
of August 2019, after the dispute between the parties had become
settled and a written settlement agreement was entered into between
them, judgment was granted against the applicant in favour of the
first respondent, on the basis of the written settlement, for
payment
of the capital sum of R1 989 351.36, as well as for an
order evicting the applicant from the premises.
[2].
In this
opposed urgent application, the applicant applies for an order
declaring
the
attachment of its movable property and its ejectment from the
premises pursuant to a writ of execution and a writ of ejectment,
issued by the first respondent and executed by the Sheriff on the
12
th
of November 2020, to be invalid. The applicant also seeks an order
that the movable property attached pursuant to the said writ
of
execution against movables be released from judicial attachment, as
well as an order
that
the writs of
execution and ejectment be set aside. Lastly, the applicant urgently
applies for interim interdictory relief in terms
of which the first
respondent, pending an application for rescission of the said
judgment, is to be interdicted from issuing further
writs of
execution against the applicant’s property or ejectment writs.
[3].
Underpinning
the applicant’s urgent application is the applicant’s
intention to apply for rescission of judgment granted
against it as
far back as the 1
st
of August 2019, which, according to the applicant, would be founded
on the fact that the settlement agreement was entered into
as a
result of an error. The error is that the first respondent, so the
applicant avers, did not have the necessary
locus
standi
to
claim the judgment debt from the applicant as the debt had been ceded
to the bondholder over the Shopping Centre. The settlement
agreement
was however entered into by the applicant with it being well aware of
this fact, which means that the applicant had known
or ought to have
known from as far back as August 2019 that the judgment should be
rescinded. If not, then the applicant ought
to have realised that
writs were bound to issued and executed as long as the judgment
remained.
[4].
The writs
themselves were issued during September 2020 and the applicant was
well aware of this. On the 12
th
of November 2020 the writs were served on the applicant – its
movable property was attached and it was evicted from the premises.
The applicant alleges that the execution of the writs was unlawful
and not in compliance with the relevant Uniform Rules of this
Court.
The objection to the execution of the writs is of a very technical
nature. These irregularities in the execution of the
writs, so the
applicant contends, makes the application urgent. Importantly, by the
12
th
of November 2020 the applicant would have become aware of the fact
that the first respondent was proceeding with the execution
of the
judgment obtained on the 1
st
of August 2019.
[5].
Notwithstanding
the aforegoing, the applicant only launched this application on an
urgent basis on the 15
th
December 2020 – smack bang in the middle of the December
holidays and at a time when most legal practices would be closing
for
the holidays. The point is that the applicant was fully aware that
the first respondent, who had obtained judgment against
it during
August 2019 and was well within its rights to insist on payment of
the judgment debt and compliance with the eviction
order, was
intending to execute the judgment during September 2020. The
reasonable thing would have been for the applicant to apply
for a
rescission of the judgment at that stage, if not earlier. Similarly,
no action is taken by the applicant when the writs were
served on the
12
th
of November 2010 and it should have become apparent to the applicant
that the first respondent then meant business.
[6].
Despite this,
no steps were taken prior to 25 November 2020 and no indication is
given as to the reasons for the delay between this
period. Nor is
there any explanation given by the applicant as to the delay from 25
November onwards, save to indicate that a physical
request had to be
made for the mortgage bond.
[7].
The applicant
relies for its urgency on the sale in execution which would have
taken place on 25 January 2021 and on the alleged
risk of the loss of
or damage to equipment and its inability to beneficially utilize such
goods which are under attachment. The
sale in execution had been
cancelled and the applicant was advised accordingly. However, the
applicant indicated that it would
persist with the application also
on the basis that it will not have beneficial use of the goods.
[8].
The main
difficulty which the applicant faces relative to the issue of urgency
relates to the fact that as early as the 1
st
August 2019 the applicant, on its own version, should have become
aware of the fact that it should be applying for a rescission
of the
judgment obtained against it. Anomalous as that may sound, the
applicant, who by then presumably would have formed the view
that the
judgment was granted against it in error, albeit on the basis of an
agreement reached between the parties, should have
filed an
application for rescission then. If it had done so, there would have
been no need for the first respondent to proceed
with the issue of
the writs and there would have been no need for the setting aside of
same – and that is so irrespective
of whether or not there was
any irregularity in the service of the writs. The point is that had
the applicant, as a reasonable
litigant, filed its rescission
application during August 2019 and not wait for over a year, there
would not have been any writs
to be set aside, let alone on an urgent
basis.
[9].
By then, it
would have been crystal clear to the applicant that it had to take
action in order to have the judgment rescinded, lest
the first
respondent decided to exercise its right to execute the judgment
which it had lawfully and fairly obtained against the
applicant. The
applicant did nothing. Instead, it remained supine and only acted
once attempts were being made to execute on the
judgment. All the
same, there is no explanation, let alone an acceptable one, why the
applicant did nothing between August 2019
and December 2020 to
protect its rights and to have the judgment rescinded.
[10].
It is the
first respondent’s contention that the alleged urgency of the
matter is self-created and that there was non-compliance
with the
provisions of Uniform Rule of Court 6(12). I agree. Despite the fact
that the applicant was aware as far back as August
2019 that it
needed to have the judgment rescinded, the applicant failed to issue
its application soon thereafter.
[11].
Rule 6 (12)
(b) of the Uniform Rules of Court reads as follows that:
‘
(b)
In every affidavit or petition filed in support of the application
under para (a) of this sub-rule, the applicant
shall set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he would
not be afforded
substantial redress at a hearing in due course.’
[12].
On behalf of
the applicant it was submitted that the application is urgent because
it was only when the writs were served, allegedly
without complying
with the provisions of the Uniform Rules of Court, that the exigency
of the matter dawned on the applicant. There
is no merit in this
contention.
[13].
I am of the
view that the urgency of this application is self – created. In
my view, the applicant should have launched an
application for
rescission during 2019 as soon as it would reasonably have formed the
view that the judgment against it was granted
in error. If it did so,
as I have already indicated, urgency would not have been an issue now
– there would have been no
writs to set aside or attachment and
ejections to declare invalid.
[14].
It was
incumbent on the applicant to as soon as possible after 1 August 2019
to launch legal proceedings to rescind the judgment.
There is no
explanation, let alone an acceptable one, as to why the applicant
waited so long before deciding to take action. Even
then they delayed
in launching the urgent application.
[15].
I am not
convinced that the applicant has passed the threshold prescribed in
Rule 6(12)(b) and I am of the view that the application
ought to be
struck from the roll for reasons given above.
Costs
[16].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so. See:
Myers v Abramson
,
1951(3) SA 438 (C) at 455.
[17].
I can think of no reason why I should
deviate from this general rule.
[18].
Accordingly, I intend awarding costs in
favour of the first respondent against the applicant.
Order
Accordingly, I make the
following order: -
(1)
The applicant’s urgent application be
and is hereby struck from the Urgent Court roll due to lack of
urgency.
(2)
The applicant shall pay the first
respondent’s costs of this urgent application.
L R ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
14
th
January 2021 – in a ‘virtual hearing’
during a videoconference on the
Microsoft Teams
digital
platform
JUDGMENT DATE:
15
th
January 2021 – judgment handed down
electronically
FOR THE APPLICANT / DEFENDANT:
Advocate Doron Block
INSTRUCTED BY:
Strauss Daly Incorporated, Sandton
FOR THE FIRST RESPONDENT / PLAINTIFF:
Advocate J G Dobie
INSTRUCTED BY:
Reaan Swanepoel Attorneys, Johannesburg
FOR THE SECOND RESPONDENT:
No appearance
INSTRUCTED BY:
No appearance