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[2010] ZAFSHC 42
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Shackleton Credit Management (Pty) Ltd v Dionisios (2053/2002) [2010] ZAFSHC 42 (29 April 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2053/2002
In
the case between:
SHACKLETON CREDIT
MANAGEMENT
(PTY) LTD
Applicant
and
ANTHANOSOPOULOUS,
DIONISIOS
Respondent
_____________________________________________________
JUDGEMENT:
H.M. MUSI, JP
HEARD ON:
22 APRIL 2010
_____________________________________________________
DELIVERED ON:
29 APRIL 2010
_____________________________________________________
[1] This matter came
before me as an unopposed application in the Motion Court on 22 April
2010. The applicant sues on the basis
of a cession in terms of which
Nedbank ceded its right, title and interest in and to Nedbank’s
book debt to the applicant.
The book debt included the judgment
amount and costs awarded by this Court to Nedbank against the
respondent under case number
2053/2002 on 10 July 2002. The
applicant seeks the following orders:
“
1. That the following property
owned by the Respondent be declared specifically executable:
Scheme Name Villa Toledo, scheme
number 441, Unit 47, Gauteng, in extent 59 square meters and
situated at 2 Maglies View, Gauteng,
held under title deed number
ST1353/2008;
Scheme Name Villa Toledo, scheme
number 441, Unit 29, Gauteng, in extent 60 square meters and
situated at 2 Maglies View, Gauteng,
held under title deed number
ST48868/2007.
2. Costs of the application only in
the event that same is opposed by the Respondent.”
[2] I was not satisfied
that it was competent to grant the order sought and I postponed the
matter in order that I could have time
to closely look at it with
reference to authority. I directed that counsel for the applicant
could see me in chambers on Monday
the 26 April 2010. Mr Hefer duly
appeared and I raised with him the issues that concerned me in this
matter.
[3] The first issue was
whether this court has jurisdiction in the matter given that all the
parties involved are outside the jurisdiction
of this court and the
cause of action does not seem to have arisen within this court’s
jurisdiction. Furthermore, the property
sought to be declared
executable is outside the area of jurisdiction of this court. Mr
Hefer referred me to the decision in
IVORAL
PROPERTIES (PTY) LTD v SHERIFF, CAPE TOWN, AND OTHERS
2005 (6) SA 96
(CPD), where it was held that the High Court is
competent to declare specially executable property situate outside
its area of
jurisdiction but within the borders of the Republic of
South Africa. Moreover, the judgment upon which the application is
founded
is that of this court. This disposes of my query as to
jurisdiction.
[4] The second issue is
whether the applicant can be granted the orders it seeks when it was
not the plaintiff in the case and judgment
it relies upon. Put
otherwise, is a cessionary entitled to enforce a judgment ceded to it
in its name? Can it sue out a writ
in its name without further ado?
Both Mr Hefer and counsel who appeared before me in the Motion Court
submitted that the answer
is in the affirmative, that the cessionary
automatically takes the place of the cedent in the judgment.
However, counsel cited
no authority.
[5] The submission made
above by counsel is not borne out by authority. The issue is
discussed in
HERBSTEIN
& VAN WINSEN, The Civil Practice of the High Courts of South
Africa,
5
th
edition by Cilliers, Loots and Nel at 1024 to 1025. The authors cite
authority to the effect that a cessionary cannot sue out
a writ in
his/her/its name. He/she/it must first apply to court to be
substituted for the cedent in the judgment. Alternatively,
the
cessionary can proceed in the name of the cedent. The applicant has
taken none of the two steps.
[6] In the premises, the
application is dismissed.
______________
H. M. MUSI, JP
On behalf of
applicant: Adv. J. J. F. Hefer
Instructed by:
McIntyre & Van
der Post
BLOEMFONTEIN
On behalf of
respondent: Unopposed
/em