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[2010] ZAWCHC 584
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Changing Tides 17 (Pty) Ltd v Brugge and Another (18615/2009) [2010] ZAWCHC 584 (29 November 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE NUMBER: 18615/2009
DATE: 29 NOVEMBER 2010
In the matter between:
CHANGING
TIDES 17
(PTY)
LIMITED
…............................................................................
Applicant
and
BELINDA-ANN
BRUGGE
…..............................................................................
1
st
Respondent
JURGEN
BRUGGE
….................................................................................................
2
nd
Respondent
JUDGMENT
TRAVERSO,
D J P
I
have considered this application which was brought in terms of Rule
42 for the amendment of a court order. Rule 42 provides that
a court
may rescind or vary an order or judgment erroneously sought or
erroneously granted in the absence of any party effected
thereby, or
clarify the order where there is any ambiguity or patent error or
omission, or an order that the judgment was granted
as a mistake
common to both parties. In my view this application is ill conceived
. The law is trite
If an order is not made
in terms whereof an immovable property is specifically declared
executable, the creditor is obliged to first
execute against the
movables of the debtor, whereafter the creditor will execute against
the immovable property of the creditor.
This order, the summary
judgment order, was granted in December last year. A year later we
are still busy with an application to
vary the order to give effect
to a process which could have been long finalised by now, with our
without the incurrence of further
legal expense.
There is, in my view, no
reason to come to court in those circumstances to apply for a
variation of the order when exactly the same
result can be achieved
by the normal process provided for by the rules of court. The
respondent appeared in person today. He is
opposing the relief
sought. His grounds are, in my view, not sound, but that does not
change the fact that in my view the applicant
was ill advised in
bringing this application. Mr Brugge applied for a postponement. In
my view there is no earthly reason why the
matter should be
postponed, particularly in view of my view that the application
cannot succeed.
In
the circumstances,
THE
APPLICATION IS DISMISSED
.
I
am informed that the
applicant's legal representatives are not appearing for any fee
today. Mr Brugge appeared in person, so, therefore,
there will simply
be no order as to costs.
TRAVERSO, D J P