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[2011] ZAGPPHC 33
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Erasmus and Another v Stander (3133/2011) [2011] ZAGPPHC 33 (28 March 2011)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
NOT
REPORTABLE
CASE NUMBER: 3133/2011
DATE:28/03/2011
In
the matter between:
DESIDERUIS
RASMUS ERASMUS
...........
First Applicant
SEC
74 ADMINISTRATOR
...........................
Second
Applicant
and
MARIA
MAGDALENA STANDER
…............
Respondent
JUDGMENT
GOODEY
AJ:
[1]
INTRODUCTION:
(1.1)
This is an application in terms of Rule 49(11).
(1.2) The Applicants seek an order:
"2.
the Applicants be granted leave to immediately execute in terms of
paragraph 2 to 5 of the order by His Lordship Justice
Goodey of the
9th of February 2011, pending the Respondent's application for leave
to appeal;
3. Costs
of the application on the scale as between attorney and client".
(1.3) In
view of the time constraints and the urgency involved, this is a
brief judgment. If so requested, I will give more comprehensive
reasons later.
[2]
BACKGROUND:
This matter came before me in the urgent Court on the 1st February
2011.
An answering affidavit was only filed on 26 January 2011 at 12:50.
The replying affidavit, a brief affidavit, was filed only on 28
January 2011. In my discretion I accepted the replying affidavit
being only 16 pages and since I have already perused the other
papers and considered the matter urgent enough to proceed on the
urgent roll.
The matter then stood down for Friday, the 4th of February 2011 and
the matter was argued and by agreement the judgment was delivered
on
the 9th of February 2011.
The Respondent then filled an application for leave to appeal dated
the 14th February 2011 which I was prepared to hear, but
both
parties indicated that they were awaiting the typed judgment. The
latter has since been revised and send back to the relevant
transcription section.
(2.6) The
Applicants have now lodged this R49(11) application.
[3]
BRIEF DISCUSSION:
(3.1)
It is common cause that the First Applicant is the 100 per cent
member of the Second Applicant.
In view of the aforesaid the Applicants argue that the Respondent
has no locus standi with regards to the administrations listed
in
the judgment by His Lordship Ledwaba, to be kept in safety by the
Sheriff.
On the other hand, the Respondent argue (despite page 5, par 3 of
the founding affidavit) and opposing affidavit (page 17, par
5) that
the First Applicant is nothing more than the de facto member of the
Second Applicant.
Furthermore, the Respondent argues that my order is to wide, inter
alia because of the fact that a trust of the Respondent is
registered owner of the building and not all the assets can be
removed as some belong to the Respondent.
[4]
CONCLUSION:
(4.1)
I am not convinced that Applicant is not entitled (in principle) to
the relief sought. However, I agree with Miss Fourie that
the order
is ostensibly to wide as far as paragraphs 3 and 4 thereof are
concerned - more specific reference to the assets of the
2nd
Applicant is necessary.
THEREFORE
I make the following order:
Paragraphs 1 and 2 (including 2.1 to 2.6) of my order dated the 9th
February 2011 remain as are as well as paragraphs 5 and 6
thereof;
Paragraphs 3 and 4 of my order of the 9th of February 2011 to read
as follows:
"3.
THAT the Respondent immediately hand over to the Sherriff all keys of
the business of the 2nd Applicant, Sec 74 Administrator
CC with
registration number 1993/002053/23 at 66 Ferreira street, Nelspruit,
Mpumalanga only to be used within 48 hours in order
to comply with
paragraph 4 hereafter and then be handed back to the Respondent;
4.
THAT the Applicants, under supervision of the Sheriff and accompanied
by an IT specialist, remove all movable assets of the 2nd
applicant
but specifically inclusive of the 2nd Applicants computer system and
back-ups and all files and documents relating to
the administrations
and matters referred to in prayer 5 hereinafter from the said
premises of the 2nd Applicant at 66 Ferreira
street, Nelspruit,
Mpumalanga;"
3. Respondent
is ordered to pay the costs of this application.
GOODEY
AJ
28/03/2011
ATTORNEY
FOR APPLICANTS VENN MULLER & TINTO INC
Attorneys 194 Straw Street
Ashley
Gardens
PRETORIA
Tel:
012 361 0507/0572
Ref:
L VENN
SAVAGE
JOOSTE & ADAMS INC
ATTORNEY
FOR THE RESPONDENT
141
Boshoff Street
Cnr
Melk Street
New
Muckleneuk
PRETORIA
Ref:
M van Staden/jl/S640