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[2009] ZAGPPHC 273
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Georgia Avenue Investments 11 (Pty) Ltd v Koperfontein Meule (Pty) Ltd and Others (55263/2008) [2009] ZAGPPHC 273 (5 August 2009)
NOT
REPORTABLE
IIN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG PRETORIA DIVISION)
In
the matter between:
GEORGIA
AVENUE INVESTMENTS 11 (PTY)
LTD
........................................
Applicant
and
KOPERFONTEIN
MEULE (PTY) LTD
.................................................
First
Respondent
THE
SHERIFF OF
MALMESBURY
...............................................
Second
Respondent
THE
SHERIFF OF HOPEF1ELD/MOORREESBURG
....................
Third
Respondent
CORAM:
EBERSOHN AJ
CASE
NO. 55263/2008
DATE
HEARD: 8 July 2009
DATE
JUDGMENT HANDED DOWN: 5th August 2009
JUDGMENT
EBERSOHN
AJ:
[1]
In this matter the applicant applied on an urgent basis for the stay
of a writ of execution which the first respondent issued
after
obtaining a default judgment in matter 55263/2008 against the
applicant in an amount of R199 810,03 with interest and costs.
[2]
The writ was executed on the 11th June 2009 by the Sheriff of
Malmesbury in terms of which he attached a certain account no
020837/001 in the name of Georgia Ave Investment 11 (Pty) Ltd. at
Kaap Agri Ltd’s head office in Malmesbury. The attachment
also
included the wheat of the applicant which was held under that account
no. by Kaap Agri Ltd.
[3]
On the 15th June 2009 the Sheriff of Moorreesburg under the same writ
attached three vehicles, a trailer and a milling plant
and it's
attachments and also 4 tons of wheat meal.
[4]
The attachment brought the operations of the applicant to a
standstill.
[5]
In the simple summons issued by the first respondent against the
applicant it was alleged that the amount was the balance owing
in
regard to a wheat and maize mill sold by the first respondent to the
applicant.
[5]
It appears that the cause of action was set out incorrectly in the
summons as the applicant in fact purchased a milling business
with
certain assets for a purchase price of R2 500 000,00.
[6]
According to the applicant he defaulted on several payments whereupon
the first respondent took the law into it's own hands
and removed a
Dyna truck, a Mercedes Benz truck and a high speed trailer from the
applicant’s undisturbed possession. The
parties thereafter
agreed that the balance owing by the applicant to the respondent
would be R350 000,00. The applicant made a
further payment of R165
000. The first respondent then caused the summons to be served on the
applicant.
[7]
On the 30th April 2009 the applicant wrote to the first respondent to
facilitate a meeting to discuss the return of the two
trucks and
trailer to the applicant after set-off of the value of the trucks and
trailer.
[8]
A dispute thereafter arose because the first respondent did not
return the trucks and trailer and also did not set-off the value
thereof against the amount of R199 810,03 allegedly owing. It is the
case of the applicant that the first respondent thus repudiated
the
agreement regarding the trucks and trailer.
[9]
The first respondent thereafter alleged that the Dyna Truck was sold
for R149 122,80 and the Mercedes Benz truck for R198 038,67
and the
first respondent retained and appropriated the proceeds of those
sales.
[10]
Thereafter the second respondent in terms of the writ attached 84
tons of wheat valued at R222 708,00 as is set out above.
[11]
Adding insult to injury the third respondent attached the goods
referred to above, apparently effectively preventing the applicant
from doing business. I find it strange that the first respondent saw
it fit to attach all these vast assets.
[12]
The applicant intends bringing an application to set aside the
default judgement therefore this application to stay the execution
of
the writ.
[13]
I have listened to the arguments advanced by Mr. Botes, the counsel
for the first respondent, as to why the relief should not
be granted
but 1 am unconvinced that the applicant does not have good prospects
of success with an application to set the default
judgment aside. I
am also convinced that it would be a travesty of justice to keep the
assets of the applicant under attachment
pending the finalization of
the proposed application to have the judgment set aside.
[14]
I accordingly make the following order:
1.
Pending the final determination of the applicant’s application
for the rescission of the default judgment, which application
must be
issued on or before the 17th August 2009, the operation of the writ
issued in consequence of the default judgment which
was granted in
matter 55263/08 on the 11th May 2009, is suspended and the second and
third respondents are ordered to release the
assets of the applicant
which they have attached, to the applicant.
2.
Costs of this application is reserved and the matter may be enrolled
again before Ebersohn AJ to have costs argued on the papers
duly
supplemented as far as may be necessary.
P.Z.
EBERSOHN
ACTING
JUDGE OF THE HIGH COURT
Applicant's
counsel: Adv. J.J. Botha
Applicant's
attorneys: Rooth Wessels Maluleke
Ref.
J.Clayton/Tel. 012-452 4111
First
respondent's counsel: Adv. F. Botes
First
respondent's attorneys: Werner Prinsloo Attorneys
Ref.
W.Prinsloo
File
No. WA5050