SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable / Not reportable
Case no: 5326/2024
In the matter between:
EMILE DU PLOOY First Applicant
SONJA ELIZABETH DU PLOOY Second Applicant
and
THE SHERIFF FOR THE DISTRICT OF VIRGINIA First Respondent
PARK VALUE AUCTIONS CENTRAL (PTY) LTD Second Respondent
RUWAYNE SMITH N.O. Third Respondent
KHATHAZILE SIMON MAHLANGU N.O. Fourth Respondent
Coram: Opperman J
Heard : 5 December 2024
Delivered : 29 May 2025. This judgment was handed down electronically by
circulation to the parties’ representatives by email and released to SAFLII. The date
and time for hand down is deemed to be 2 9 May 2025 at 15h00.
Summary: Application for i nterdict against liquidator – cancellation of auction and
sale of moveable property – forced supply of information of buyers of property on
auction – access to property .
________________________________________________________________ _
ORDER
___________________________________________________________ _____ _
The application is dismissed with costs to be taxed on scale C
_______________________________________________________________ __
JUDGMENT
________________________________________________________________ _
Opperman J
Introduction
[1] The a pplicants move for what appears to be an interim interdict. The aim of the
application , according to counsel for the applicants, is to prevent the respondents from
alienating and removing or , further so, alienating and removing all movable property
situat ed at 3[...] C[...] Avenue, Virginia (the premises) . They specifically want :
‘i) Access to the building to take inventory; ii) The opportunity to prove ownership of
any items not sold and removed from the building; iii) To be placed in possession of
items of which ownership have been proven.’1
[2] The third and fourth respondents assert that the relief sought became moot and
that the applicants did not make out a case for an interim interdict in that they did not
comply with the requisites in law therefor.
Parties
1 Heads of argument for the applicant’s para 6.
[3] The f irst applicant is a major business man from Virginia. The second applicant
is a major female and wife of the first applicant.
[4] The first respondent is the sheriff for the district of Virginia. The first respondent
is cited , according to the applicants, in his capacity as the court official responsible for
attaching the movable property in issue stored at the premises . The second
respondent is cited as Park V alue Auctions Central (Pty) Ltd , a private company with
registered business address situated at Randburg , and trading address in
Bloemfontein. The second respondent is cited in their capacity as auctioneer
appointed to auction off the movable property in issue. The citation of the second
respondent is wrong according to the liquidators . The correct name of the second
respondent is Park Village Auctions , registration number 2009/020483/07 (not as
indicated in the notice of motion to be 2009/ 0202482/07) with trading address at
corner of R64 and Valencia Road, Waterbron, Bloemfontein. The citation in the notice
of motion also differs from the citation in the founding affidavit.2
[5] The t hird respondent is Ruwayne Sm ith N.O., in his capacity as liquidator of
Global Group Auctions (Pty) Ltd (in liquidation) (Global Group) . The fourth respondent
is Khathazile Simon Mahlangu N.O., in his capacity as liquidator of Global Group . The
third and four th respondents were appointed by the Master of the High Court,
Bloemfontein , as the liquidators of Global Group on 2 May 2023. The first and second
respondents did not join in the litigation. As indicated above; t he application is opposed
by the third and fourth respondents.
Background and relief
[6] On 22 August 2024 , the applicant s demanded the release of certain assets by
way of affidavit to the liquidators from the premises of the liquidated estate of Global
Group . Global Group was , as fa r back as 22 December 2022 , placed under provisional
liquidation , and then final liquidation on 2 February 202 3.3 The director of Global Group
2 Answering affidavit paras 2.1 and 2.2.
3 Founding affidavit para 4.1 .
is the stepson of the first applicant. It is alleged by the applicants that in October 2022
they stored some property on the premises which allegedly belongs to the applicants.
In August 2024, the applicants learned via an advertisement of an auction of the
property of the liquidated company starting on 12 August 2024 and ending on 22
August 2024. The first applicant stated in his founding affidavit that: ‘To my utter
dismay, I noted, from the photographs, that all of the assets being advertised , were the
movable assets of myself and the second applicant.’4 The first applicant stated that
they might be able to prove ownership of the property. Any persons, according to him,
that purchase d the property will have to be litigated against applying the rei vindicatio .
In spite of continued requests for information of the purchasers , he was only given a
list of the goods sold and the amounts which the goods have been sold for.
[7] The affidavit was deposed to on the 16th of September 2024. The application
was filed on 19 September 2024 and only landed on the court roll for hearing on 5
December 2024. The peculiarity of the application is the relief sought in the notice of
motion. Counsel for the applicants conceded during the hearing of the case that
prayers 1, 2 and 3 have become moot and were moot from the beginning of the
application. As said , the application was filed on 19 September 2024 , and the auction
ran from 12 to 22 August 2024. This is the relief sought as per the notice of motion :
‘1. That the continued sale of movable property, from 3[...] C[...] Avenue, Virginia,
and advertised under online auction number web#: 1[...] be cancelled pending the
outcome of this application.
2. That the continued removal of movable property from 3[...] C[...] Avenue
Virginia and sold under online auction number web#: 1[...], be ceased pending the
outcome of this application.
3. That all items already sold under online auction number web#: 1[...], and not yet
in the possession of purchasers, be placed in the hands of the Sheriff, Virginia,
4 Foundi ng affidavit para 4.13.
pending proof of ownership of the movable assets by a date to be determined by this
Court.
4. That the First and/or Second Respondents make available the names and
contact information of all purchasers who have in their possession goods sold under
auction number web#: 1[...] to enable service of this order.
5. That the First to Fourth Respondents be interdicted from further advertising
and/or selling any of the movable assets stored at 3[...] C[...] Avenue. Virginia,
(hereinafter referred to as “the property”), pending the Applicants’ proof of ownership
by a date to be determined by this Court.
6. That the Applicants be granted access to the property, accompanied by the
Sheriff, to take stock of the items which are still being stored at the property to enable
them to prove ownership thereof.
7. That the Applicants be granted leave to approach this Court, on the same
papers, duly amplified, if necessary, for an order to take control of and remove all
assets of which ownership have been proven.
8. That any party opposing this application, be ordered to pay the costs of the
application. ’
Mootness
[8] The chronology of the events shows that the applicants dragged their feet to
come to court and obtain some effective solution to protect their property rights. The
auction has already been held; all the assets have been delivered to the buyers save
for the ‘Bobcat ’ which was already sold and there are no further assets that are to be
advertised o r sold. The applicants already had access to the property as will be shown
later. The constitutionality and basic legality of the application: ‘ That the First and/or
Second Respondents make available the names and contact information of all
purchasers who have in their possession goods sold under auction number web#: 1[...]
to enable service of this order ’ (accentuation added) has not been shown . It is also
very wide and not curtailed to the property allegedly owned by the applicants. Prayer 4
is dead in the water and has failed . It lacks legal veracity .
Interdict
[9] The applicants did not comply with the principles of an interdict to be proven
before such relief may be granted.5 The applicant did not show a prima facie right in
that, among others, they are the rightful owners. On 26 April 2024 the applicants were
invited to bring an application for the release of the assets by the liquidators. The
application was not made . After the auction was finalised and on 22 August 2024 the
liquidators received an affidavit from the first applicant for the assets to be released.
The ownership relied upon by the applicants was rejected. The liquidators then granted
the applicants 10 days to bring a substantive application before the court. They did not
bring the application and the as sets were paid for and delivered to the buyers. The one
item, namely the ‘Bobcat vehicle ’, is due to be delivered after transfer has occurred.
Ownership has already been transferred to all the buyers.
[10] In addition, the third and fourth respondent’s evidence6 must be accepted that:
‘3.14.1 Whereas the Applicants rely in Annexures "FA6.1" to "FA6.7" on the
proof of ownership, that the Honourable Court will note that Annexures
5 In this regard, see Setlogelo v Setlogelo 1914 AD 221 at 227.
6 The so -called Plascon -Evans dictum applies. In Plascon -Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd [1984] 2 All SA 366 (A) the Supreme Court of Appeal found that the rule formulated in
Stellenbosch Farmers’ Winery and Another v Martell & Cie SA and Others 1957 (4) SA 234 required
clarification and qualification where final relief was sought in motion proceedings. The general rule is
still that in proceedings where disputes of fact have arisen on affidavits, a final order, whether an
interdict or some other form of relief, may be granted if the facts averred in the applicant’s affidavits,
which have been admitted by the respondent, together with the facts alleged by the respondent, justify
such an order. The power of the court to give such final relief on the papers before it is, however, not
confined to such a situation. In certain cases, denial by a respondent of a fact alleged by an applicant
may not raise a real, genuine or bona fide dispute of fact. If the respondent in such a case has failed to
apply for the deponent(s) concerned to be called for cross -examination under rule 6(5) (g) of the Uniform
Rules of Court, and if the court is satisfied as to the inherent credibility of the applicant’s averments, the
court may decide the disputed fact in the applicant’s favour, without hearing oral evidence. Therefore,
when factual disputes arise in motion proceedings, relief should be granted only if the facts stated by
the respondent, together with the admitted facts in the applicant’s affidavits, justify the order.
"FA6.1","FA6.2", "FA6.3" and "FA6.4" consist of tax invoices issued by an entity called
DEALCOR, it further indicates "Sold To. EMILE DU PLOOY / CASH", delivered to 3[...]
C[...] Avenue, Virginia (the liquidated company's address), with no proof of payment
whatsoever;
3.14.2 Secondly, the Honourable Court will note that the registration certificates
attached to those tax invoices indicate that the owner as well as title holder of those
assets are DEALCOR THIRTEEN CC and nowhere are there any indications that
Emile du Plooy became the owner and/or title holder of any of those assets;
3.14.3 Again, as far as the stainless steel " Spitbraai " is concerned, it only consists of a
written note signed by someone, that the " Spitbraai " was sold to Emile du Plooy of
Virginia for R5000.00 in cash on 17 September 2021. No proof of payment or delivery
are furnished;
3.14.4 As far as the Bobcat asset is concerned, with reference to Annexure "FA6.7”, it
only indicates that it is a cash sale from Lower Centre on 6 November 2019, the asset
was supplied by E du Plooy (in other words not received) and that it was sold for
R50,000.00 “Voetstoots”. No proof of payment is attached, neither does it indicate that
it was a sale of which Lower Centre was the seller and E du Plooy the buyer;
3.14.5 None of the sellers of the aforementioned assets provided any confirmation of
the averments, and no confirmatory affidavits are attached in this regard.
4.
I have also obtained a confirmatory affidavit by Hettelien Belinda van den Bergh
(Annexure “F”) who is currently employed at Park Village Auctioneers as
Administration Manager, being her position since March 2017. I attach hereto the
affidavit by Me Van den Bergh who confirms the following:
4.1 On 9 May 2024 at approximately 11:30 am, she met with Mr Emile du Plooy at
the premises known as 3[...] C[...] Avenue in Virginia in attendance of a property
inspection with a potential buyer and to compile an inventory report of the movable
assets currently stored at the premises;
4.2 Mr Du Plooy stated that he worked at the property before closing down and that
certain assets do not vest in the estate of Global Group Auctions (Pty) Ltd [in
liquidation] with Masters reference B127/2022 and that these assets belong to the
previous tenant and he proceeded to show me the assets in question ;
4.3 I took photographs of the assets and for ease of reference attach same hereto as
Annexure "G" ;
4.4 The assets indicated to me was indeed mostly industrial shelves, which was
subsequently not inventorised and never formed part of the auction catalogue. I accept
that the aforesaid, consisting of mainly industrial shelves, are still at the premises;
4.5 Mr Du Plooy never indicated or informed me that he is the owner of any other
assets at the premises of Global Group Auctions (Pty) Ltd .’ (Accentuation added .)
[11] The applicants have no real apprehension of irreparable harm and they have
another remedy available to them, as the first applicant stated , the rei vindicatio .
Conclusion
[12] The evidence presented, the balance of convenience, and the interests of
justice in casu are at odds with the granting of the application . The nature of the
application is not certain. Although the notice of motion seems to portray an application
for an interim interdict , the applicants , without any doubt , also want final relief from the
court. The glaring reality is that the application is not only moot but that the applicants
are not able to identify the property they want to interdict. They also do not know
whether their property is still on the premises. In addition, t here is an issue with
ownership – they want unconstitutionally vague and wide access to the information of
all the purchasers involved in the auction which has already occurred in August 2024 ,
despite having alternative remedies in law available to them . Simply, t hey did not meet
the requirements for an interdict and in light of the above , the application must fail as a
whole, and costs must follow the cause.
Order
[13] In the result, the following order is made:
‘The application is dismissed with costs to be taxed on scale C’
OPPERMAN J
Appearances
For applicant: N van der Sandt
Instructed by: Van der Berg Van Vuuren Attorneys
Bloemfontein
For first respondent: P Zietsman SC
Instructed by: Phatshoane Henney Attorneys
Bloemfontein