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[2016] ZAGPPHC 774
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Fourie v Greeff (11438/2016) [2016] ZAGPPHC 774 (31 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 11438/2016
Date:
31 August 2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
JOHANNES
GERHARDUS
FOURIE APPLICANT
And
PETRONELLA
HERMIENA
GREEFF RESPONDENT
JUDGMENT
PRETORIUS
J.
(1)
The applicant launched an urgent application to set aside a writ of
execution issued by this court on 4 August 2016, on the
basis that it
was erroneously obtained.
(2)
On 1 July 2016 a Rule 43 application was heard by Fourie J which
dealt with the primary residence of the children, as well as
access
rights. In a counter application the respondent claimed maintenance
pendente lite
from the applicant. After hearing counsel for
both parties an order regarding maintenance
pendente lite
was
issued and it was ordered:
"Pendente lite, applicant
shall pay the respondent maintenance in respect of herself and the
two minor children in the amount
of R45 000 (FORTY FIVE THOUSAND RAND
ONLY) with effect
30 July 2016 and thereafter on or before the
first of each subsequent month."
(3)
It was further set out:
"It is specifically ordered
that the respondent and the two minor children will remain on the
medical aid of the applicant
as part of the R45 000.00 maintenance
contribution."
(4)
On 4 July 2016 a letter was sent by the respondent's attorney to the
applicant's attorney setting out that the parties will
in future only
communicate through their attorneys. In the same letter it was
set out:
"Ons bevestig dat Adv Klopper
Adv de Swardt meegedeel het dat debietorders vir die betalings wat
voorheen deur Mnr Fourie gemaak
is, reeds vir die maand Julie 2016 in
plek is en dat dit tyd sal neem om al/es te kansel/eer, vandaar die
vertraging in die inwerkingstelling
van die bevel. Ons vertrou dus
dat Mnr Fourie die status quo sal behou vir die maand van Julie 2016
en al die betalings sal volhou,
soos voorheen."
(5)
Subsequently the respondent refused to take over the debit orders for
the cellphone, the car, the car insurance and certain
policies.
(6)
This resulted in the applicant deducting payment for the car, the
lpads, insurance, medical aid and the tracking device for
the car in
the amount of R17 308.22 and paid R27 691.78 to the respondent in
terms of the court order.
(7)
The respondent's attorney informed the applicant's attorney that the
respondent disputes these deductions as not in accordance
with the
court order and threatened to issue a warrant of execution.
(8)
On 4 August 2016 the respondent caused a writ of execution to be
issued against the applicant for an amount of R48 750.00, as
the
amount the applicant had deducted in respect of the debit orders and
not paying R45 000 in cash.
(9)
On 15 August 2016 a letter was sent to the respondent's attorney
warning the attorney that should the respondent proceed with
the writ
in execution, being aware of the dispute regarding the debit orders,
an urgent application will be launched. On the following
day, 16
August 2016 the Sheriff attached the applicant's movable assets.
(10)
I find this action by the respondent to be vexatious as the
respondent's counsel acknowledged that the letter of 4 July 2016
dealt with the debit orders. Counsel for the respondent could not
explain to which debit orders the respondent's attorney had referred
in the letter.
(11)
I find in the circumstances that the application is urgent. It is
quite clear that the parties are involved in an acrimonious
divorce
and that leads to actions that cannot be defended.
(12)
I find that due to the respondent's refusal to transfer the relevant
debit orders the applicant had no alternative but to set-off
the
amount of the debit orders in the amount of R25 006.06 from the R45
000. I agree that in these circumstances the respondent
had no
causa
to have issued a writ of execution. The applicant complied
with his obligations in terms of the court order.
(13)
Subsequently I grant the following order:
1. The application is urgent;
2. The writ of execution issued under
case number 11438/2016 on 4 August 2016 is set aside;
3. The respondent to pay the costs of
the application.
___________________
Judge
C Pretorius
Case
number : 11438/2016
Matter
heard on : 30 August 2016
For
the Applicant : Adv JA Klopper
Instructed
by : VFV Attorneys
For
the Respondent : Adv de Swardt
Instructed
by : Botha & Human Attorneys
Date
of Judgment : 31 August 2016