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[2022] ZAMPMBHC 79
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Revolver Creek Trust CC v Above Average Investments Corporation 20 CC (3473/2021) [2022] ZAMPMBHC 79 (18 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NUMBER: 3473/2021
In
the matter between:-
REVOLVER
CREEK TRUST CC
Applicant
and
ABOVE
AVERAGE INVESTMENTS CORPORATION 20 CC
Respondent
JUDGMENT
GREYLING-COETZER
AJ
[1]
The applicant seeks
an order declaring certain immoveable properties of the respondent
specially executable in terms of Rule 46.
[2]
The applicant
obtained default judgment against the respondent in respect of an
action for monies lent and advanced on 6 May 2019.
The default
judgment was granted in the amount of R400 000.00 together with
interest
a
tempore morae
,
calculated in terms of per paragraph 21 of the summons until date of
final payment, together with cost of suit.
[3]
Pursuant to obtaining
the default judgment, the applicant issued a warrant of execution,
but was unable to attach any moveable assets
of the respondent. The
respondent however made two payments, totaling R50 000.00,
towards the reduction of the judgment debt,
the last payment of which
was made in December 2019. As a result of persistent non-payment, the
applicant pursued an application
for liquidation of the respondent.
In this respect an order for final liquidation was obtained on 24
August 2020.
[4]
Pursuant to the
granting of the liquidation order, the respondent engaged the
applicant in respect of possible payment terms and
settlement of the
amount giving rise to the final liquidation order. The parties
concluded a written settlement agreement in terms
of which the
respondent would make various payments on specified dates, and the
subsequent setting aside of the liquidation order.
The settlement
agreement further contained a suspensive condition that should
payments not be made as agreed within 14 days from
date of the
conclusion of the settlement agreement, being 18 November 2020, the
settlement agreement will become null and void.
[5]
The respondent failed
to comply with its obligations in terms of the settlement agreement
by failing to make the agreed payments
timeously or at all. Due to
this failure, the applicant now relying on the default judgment,
seeks this court to declare the immoveable
property of the respondent
executable as envisaged in Rule 46(1)(a)(ii).
[6]
In substantiation of
the aforesaid, the applicant relies on returns of service issued by
the Sheriff, which indicate that the warrants
of execution against
the respondent’s moveable property could not be served,
notwithstanding various attempts to do so. The
reasons provided for
this are that the respondent is unknown at the service address, and
pursuant to telephonic communication with
the director of the
respondent, one Mr Mdluli, it was established that the respondent has
moved. However, Mr Mdluli refused to
provide the respondent’s
new address to the Sheriff. As such, it was submitted that the only
inference that can be drawn
is that the respondent possesses no
moveable assets to satisfy the judgment debt.
[7]
In support of this
application the applicant alleges that neither of the three
immoveable properties which the applicant seeks to
be declared
executable are residential properties, nor are they private
residences of any natural person(s). These properties are
vacant
land.
[8]
This application is
opposed by the respondent. The respondent however admits the facts
relied on by the applicant, save to allege
that the respondent was
unable to adhere to the terms of the settlement agreement as a direct
result of the liquidation order granted
against the respondent under
case number 985/2020. This being so, as a very lucrative contract the
respondent had in place was
cancelled pursuant to the liquidation
order being brought to the third party’s attention.
[9]
The respondent
further alleges that an undertaking was made by the respondent to the
effect that as soon as the respondent commences
with ‘operation’
and obtains its refinery license, it would make payment to the
applicant.
[10]
The respondent denies
evading the Sheriff. Its confirmed that the vehicle utilized by Mr
Mdluli (director of the respondent) was
confirmed under oath not
belonging to the respondent, but that it belongs to one Mr Mazula.
[11]
The respondent
alleges that Portion 4 of Farm 320, Camelot, Registration Division
J.U., Province of Mpumalanga, contains surface
material (gold) to the
value of R608 106 000.67.
[12]
The respondent
further alleges that Portion 56 of Farm Greenstone, N 917,
Registration Division J.U., Province of Mpumalanga, is
valued at
R430 000.00
[13]
Nothing in the
respondent’s affidavit sets out a defense to the relief sought
by the applicant. At best it shows that the
respondent was not
mala
fide
in
its non-payment in terms of the settlement agreement.
[14]
In terms of Rule 46,
and subject to the provisions of Rule 46A, no writ of execution
against the immoveable property of any judgment
debtor shall be
issued unless (1) a return has been made of any process issued
against the moveable property of the judgment debtor
from which it
appears that the said judgment debtor has insufficient moveable
property to satisfy the writ; or (2) such immoveable
property has
been declared to be specially executable by the court, or where
judgment is granted, by the registrar under Rule 31(5).
[15]
In the application of
Rule 46(1)(a)(ii) a court stands to consider all legally relevant
factors and must be satisfied that good
cause exists for granting the
order. In the present matter before me it is evident that
alternatives for securing payment have
been considered and pursued
without success.
[16]
Although no
nulla
bona
return
of service has been placed before court, the Sheriff’s returns
of service, clearly indicate the attempts made and result.
This taken
with the version placed before court by the respondent, of inability
to pay and that the motor vehicle utilised by the
director of the
respondent is not that of the respondent, it is reasonable to
conclude that the respondent possesses no moveable
assets which could
satisfy the judgment debt.
[17]
What is remaining is
whether good cause exists. According to the respondent the immoveable
properties which the applicant seeks
to declare executable are worth
much more than the judgment debt. However, the respondent places
reliance for this allegation on
a geologist and metallurgist report
which does not relate to a property in question, but to Portion 4 of
the Farm Camelot, No 320,
as opposed to Portions 2 and 3, to which
this application relates.
[18]
I am satisfied that
good cause has been shown to declare the immoveable properties
executable as sought.
[19]
I therefore make the
following order:-
1.
The following
properties are declared specially executable:-
1.1
Portion 2 of
Farm Camelot, No. 320, Registration Division J.U., Province of
Mpumalanga, in extent 39.4334 hectares, held by deed
of transfer
T2481/2018;
1.2
Portion 3 of
Farm Camelot, No. 320, Registration Division J.U., Province of
Mpumalanga, in extent 19.8016 hectares, held by deed
of transfer
T2481/2018; and
1.3
Portion 56 of
Farm Greenstone, No. 917, Registration Division J.U., Province of
Mpumalanga, in extent of 9224/00 square meters,
held by deed of
transfer T12476/2017.
2.
The issuing of
a writ of execution as envisaged in Rule 46(1)(a)(ii) for the
attachment of the immoveable properties described above
is
authorised.
3.
Cost of suit.
GREYLING-COETZER
AJ
DATE
OF HEARING:
19 JULY 2022
DATE
OF JUDGMENT: 18
OCTOBER 2022
FOR
THE APPLICANT:
Adv.
Fourie
Instructed
by Cronje,
De Waal-Skhosana Inc
E-mail:
schalk@cdwlaw.co.za
FOR
THE RESPONDENT: Adv.
Sambo
Instructed
by BV
Mbungela Attorneys
E-mail:
bv@nm-attorneys.co.za