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2024
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[2024] ZAGPPHC 1183
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Bela-Bela Local Municipality v Dikala Plant Hire CC and Others (031630/2023) [2024] ZAGPPHC 1183 (22 November 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO.: 031630/2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date: 22 November
2024 E van der Schyff
In
the matter between:
Bela-Bela
Local Municipality
Applicant
And
Dikala
Plant Hire CC
First
Respondent
The
Registrar of the High Court
Gauteng
Division, Pretoria
Second
Respondent
The Sheriff:
Bela-Bela;Third Respondent
JUDGMENT
Van der Schyff J
Introduction
[1]
The applicant approached the court seeking
an order setting aside warrants of execution issued under case number
95187/2015, in
terms of which the Sheriff was directed to attach and
take into execution the sum of R82 795 796.84 and the notice of
attachment
in execution of the applicant’s movable and
immovable property dated 9 November 2022 pursuant to the warrant of
execution
under case number 95187/2015.
Discussion
[2]
Two warrants of execution reflecting the
same amount were issued under case number 95187/2015. The first is
dated 5 August 2019,
and the second is dated 27 October 2022. The
notice of attachment in execution is dated 9 November 2022.
[3]
While the relief sought was simple and
straightforward, the applicants raised several underlying issues in
the founding affidavit.
These underlying issues again surfaced in the
applicant’s heads of argument and the most recent practice
note. For the reason
set out below, it is not necessary to pronounce
on any of the underlying issues.
[4]
The first respondent does not take any
issue with the relief sought in the notice of motion. It does take
issue with the underlying
issues set out in the founding affidavit
and the applicant’s heads of argument. First respondent’s
counsel submitted
that because it does not oppose the relief sought
in the notice of motion, it is not necessary to deal with the
underlying issues.
He submitted, however, that each party
should pay its own costs in this application.
[5]
The first respondent does not oppose the
relief sought because it abandoned the warrants of execution
reflecting the amount of
R 82 795 796.84
and
informed the applicant thereof already in June 2023. The first
respondent avers that the third respondent acted on a frolic
of its
own when it attached the applicant’s movable and immovable
assets. The warrant clearly indicates that the Sheriff
was directed
to take into execution the ‘movable goods’ of the
applicant.
[6]
The first respondent avers that it has not,
since 17 November 2022, instructed the third respondent to execute
the warrants and
instructed the third respondent on 17 November 2022
to stay the execution of the warrant of execution. The notice of
attachment
in execution is dated 9 November 2022 and precedes the
instruction to stay the execution. The first respondent does not
indicate
that it instructed the Sheriff to uplift any notice of
attachment in execution.
[7]
The first respondent submits that the
relief sought became moot because it informed the applicant that it
abandoned the warrants
of execution, which is the subject matter of
this application. I disagree. The applicant’s assets are still
attached in terms
of the notice of attachment in execution, and the
notice of attachment in execution is based on a warrant of execution.
In light
of the first respondent’s submissions that it abandons
the warrant(s) issued for recovering the amount of R82 795 796.84,
there is no reason not to grant the relief sought by the applicant.
[8]
That leaves the issue of costs. No costs
order is sought against the third respondent in the notice of motion,
or in a subsequent
application by the first respondent. The first
respondent attempts to absolve itself from any responsibility for
costs by shifting
the blame for the issue of the notice of attachment
in execution to the third respondent. The first respondent, however,
does not
explain whether it communicated with the Sheriff and
instructed him to cancel or uplift the notice of attachment in
execution when
it was alerted to its existence. The first
respondent cannot be absolved of all blame for the current situation.
[9]
The applicant, on the other hand, raised
several underlying issues it submitted had to be adjudicated by the
court. The first respondent’s
continued opposition to deal with
these underlying issues in these proceedings cannot be faulted.
[10]
This application could and should have been
settled without the court’s input being required. In these
circumstances, it is
fair and just for all parties involved to carry
their own costs.
ORDER
In the result, the
following order is granted:
1.
The Warrants of Execution under case number 95187/2015 in
favour of the first respondent as execution creditor, in terms of
which
the Sheriff was directed to attach and take into execution the
sum of R82 795 796.84 plus interest at the rate of 9% from 18 July
2019 until date of final payment, plus plaintiff’s costs in the
sum of R650, plus further costs to be taxed, are set aside;
2.
The Notice of Attachment in Execution of movable and immovable
properties of the Applicant pursuant to the Warrants of Execution
under Case number 95187/2015 in favour of the first respondent as
execution creditor, dated 9 November 2022, is set aside;
3.
The applicant and first respondent are responsible for their
own costs.
E van der Schyff
Judge of the High Court
Delivered: This
judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
As a courtesy gesture,
it will be emailed to the parties/their legal representatives.
For
the applicant:
Adv.
M. Majozi
Instructed
by:
Ndobela
and Associates
For
the first respondent:
Adv.
S.D. Wagener SC
Instructed
by:
Geyser
Van Rooyen Attorneys
Date
of the hearing:
20
November 2024
Date
of judgment:
22
November 2024