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Kufan Trust and Others v ABSA Bank Limited (3656/2021) [2023] ZAWCHC 43 (1 February 2023)

80 Reportability
Civil Procedure
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Brief Summary

Execution — Sale in execution — Writ of attachment — Application to set aside — Applicants contending that writ incorrectly cited parties and did not reflect the joint nature of the court order — Court finding that the writ was issued contrary to the terms of the judgment, rendering it invalid — Writ of attachment set aside.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned an application in the Western Cape High Court, Cape Town, for an order setting aside a writ of attachment (writ of execution) and the consequent attachment of immovable property, with ancillary relief restraining the respondent from selling the property in execution.


The applicants were The Kufan Trust (IT 326/2004), Mr Jack Stanley Frank (a trustee and also cited in his personal capacity), and Ms Leonie Andre Frank. The respondent was ABSA Bank Limited. The writ related to execution against an immovable property owned by the Trust, situated at 4[...] A[...], 2[...] B[...] Road, Strand, Western Cape.


The procedural history was material to the application. The dispute traced back to a settlement agreement made an order of court. Following an alleged breach, further proceedings were brought in terms of Rule 41(4), culminating in a judgment by Fortuin J. Thereafter, the applicants pursued rescission and appeals, all of which were unsuccessful. Execution steps followed, including the issuing of the writ and steps towards a sale in execution, which was at one stage delayed by further appellate processes.


The general subject-matter of the dispute was whether the writ of attachment (and the attachment effected under it) was invalid because it did not correctly reflect the citation of parties and, as alleged by the applicants, did not correspond to the court order upon which it was premised.


2. Material Facts


A settlement agreement was concluded between the parties and was made an order of court on 29 January 2015. The settlement later underpinned a further judgment granted by Fortuin J on 6 November 2015, after the respondent sought relief following an alleged breach of the settlement agreement’s conditions by the applicants.


Fortuin J’s judgment (as described in the present judgment) dealt with multiple matters heard together, which Fortuin J referred to as Claims A, B and C. In Claim A, judgment was granted in favour of ABSA Bank Limited. In Claims B and C, ABSA Bank Limited together with ABSA Home Loans Company (Pty) Ltd were described as applicants.


Following Fortuin J’s judgment, the applicants and another person cited in the prior proceedings (their son, also cited in dual capacities) launched a rescission application on 15 December 2015, which was dismissed. An application for leave to appeal against the rescission outcome was dismissed on 7 May 2019. A further application for leave to appeal in the Supreme Court of Appeal was dismissed with costs on 3 September 2020. Shortly before a scheduled sale in execution on 8 December 2020, the applicants pursued a reconsideration application in terms of section 17(2)(f) of the Superior Courts Act 10 of 2013, which resulted in the cancellation of the sale. That reconsideration application was ultimately unsuccessful.


The writ of attachment at the centre of this application was issued and signed by the Registrar on 23 January 2020 under case number 13256/2013, in favour of the respondent, in respect of the Trust’s immovable property.


It was common cause in the present proceedings that both the Registrar-issued order documentation and the writ contained errors. The applicants relied particularly on alleged discrepancies between the writ and the underlying court order(s), including that the writ used the terminology of “plaintiff” and “defendants” (despite the matter having proceeded by application), and that the writ reflected the execution as being in favour of ABSA Bank Limited alone while the applicants contended the order was framed in favour of two applicants.


As to service, the respondent maintained that the writ had been served at the Trust’s designated domicilium citandi et executandi, and that personal service was not required in the manner contended for by the applicants. The applicants’ challenges to service were linked to their complaint that the writ did not set out addresses or specify where service should occur.


3. Legal Issues


The central legal question was whether the writ of attachment was in accordance with the court order on which it was premised, and if not, whether that non-conformity required the writ (and the attachment pursuant to it) to be set aside, thereby invalidating execution against the immovable property.


This was principally a question of the application of legal principles to facts, focused on the legal effect of acknowledged errors in court process documents and whether such errors were material enough to justify setting aside execution process.


Two preliminary issues were also determined. The first was whether the second applicant, a retired legal practitioner not enrolled to practise, could represent the third applicant (a natural person) in court. The second was whether to condone the late filing of the applicants’ heads of argument.


4. Court’s Reasoning


On representation, the court addressed two distinct aspects. It accepted that the Trust’s litigation authority was adequately demonstrated despite the respondent’s objections about the resolution’s signatures. The court considered that the trustees appeared to be acting jointly and that insisting on further signatures would elevate form over substance. However, the court declined to allow the second applicant to represent the third applicant in her personal capacity, holding that a layperson may not represent a natural person in court. The court treated the authority it cited as dispositive on that point. Given the history of delay, the matter proceeded without legal representation for the third applicant.


On condonation, the applicants sought condonation for late heads of argument, attributing the delay to the second applicant’s involvement in another matter. The respondent did not oppose. The court found it in the interests of justice to condone the late filing and granted condonation.


On the merits, the court articulated the governing test for setting aside a writ. It treated the inquiry as whether the writ was in accordance with the order upon which it was issued, or whether the debt had been satisfied, or whether the underlying order had been set aside. The court applied this framework to the undisputed position that the underlying judgment (Fortuin J’s order) had not been rescinded or overturned, and that prior attempts to upset the judgment had failed.


The court accepted that there were errors in the Registrar-generated documents and in the writ. It approached the errors as patent inaccuracies arising in the issuing process. The respondent’s position (accepted in substance by the court) was that the Fortuin J order was the operative and binding judicial act, and that a Registrar’s errors in typing or drafting could not supersede or modify that order. The court reasoned that allowing administrative mistakes to displace a considered judicial judgment would be unjust.


In evaluating the applicants’ complaints about wrong citation (plaintiff/defendant instead of applicant/respondent), the court noted the respondent’s concession that the nomenclature was incorrect. Nevertheless, it accepted the respondent’s contention that the error did not affect the operation or function of the writ in a manner warranting its setting aside, particularly where the applicants did not establish prejudice or show that the writ was incapable of being given effect to.


The court also relied on the broader litigation history in assessing the application’s bona fides and timing. It considered that the applicants had long been aware of the inaccuracies yet only pursued this line of attack after unsuccessful rescission and appeal proceedings. The court characterised the application as an attempt to frustrate execution and regarded it as opportunistic and vexatious. It reasoned that halting execution on the basis of “insignificant and immaterial” Registrar errors would not be justified, and that substantial reasons were required to stop the execution process.


Although the respondent had filed a conditional counter-application to vary and rectify the court order under Rule 42(1)(b), the court’s dispositive reasoning focused on dismissing the applicants’ setting-aside application, treating the Registrar’s errors as not warranting the relief sought.


5. Outcome and Relief


The court dismissed the application to set aside the writ of execution.


The court ordered that the costs of the application be borne by the applicants, including the costs of counsel.


Cases Cited


Commissioner for the South African Revenue Service v Paoulter in re: Paoulter v Commissioner for the South African Revenue Service (A74/2021) [2022] ZAWCHC 206 (25 October 2022).


Rand West City Local Municipality v Quill Associates (Pty) Ltd and Another [2021] JOL 51360 (SCA).


Le Roux v Yskor Langoed (Edms) BPK en Andere 1984 (4) SA 252 (T).


Sachs v Katz 1955 (1) SA 67 (T).


Graphic Laminates CC v Albar Distributors CC and Another 2005 (5) SA 409.


Commissioner for the South African Revenue Service v Candice–Jean van der Merwe (Supreme Court of Appeal; further citation details not provided in the judgment text).


Legislation Cited


Legal Practice Act 28 of 2014 (section 25).


Superior Courts Act 10 of 2013 (section 17(2)(f)).


Rules of Court Cited


Uniform Rules of Court, Rule 41(4).


Uniform Rules of Court, Rule 42(1)(b).


Held


The court held that, notwithstanding acknowledged errors in the writ of execution and related Registrar-generated documentation, the writ was not set aside because the underlying court order remained valid and binding, the Registrar’s administrative mistakes could not supersede the court’s judgment, and the applicants did not demonstrate material prejudice or a basis warranting the cessation of execution.


The court further held that a layperson may not represent a natural person in court, and it condoned the late filing of the applicants’ heads of argument in the interests of justice.


LEGAL PRINCIPLES


The court applied the principle that a writ of execution may be set aside where it is not in accordance with the court order on which it is premised, where the debt has been satisfied, or where the underlying order has been set aside. In applying this principle, the court treated the continued existence and binding effect of the underlying judgment as decisive against the applicants’ attempt to derail execution.


The court applied the principle that patent administrative errors in court process documents, including incorrect nomenclature or clerical inaccuracies, do not necessarily invalidate a writ where they are immaterial to the writ’s operation and where no material prejudice is demonstrated. The court treated the Registrar’s mistakes as insufficient, on their own, to justify setting aside execution.


The court applied the principle (drawn from authority it cited) that no layperson may represent a natural person in a court of law, and that the court has no discretion to permit such representation.


The court applied the discretionary principle that condonation may be granted where it is in the interests of justice, particularly where the delay is explained and the opposing party does not object.

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[2023] ZAWCHC 43
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Kufan Trust and Others v ABSA Bank Limited (3656/2021) [2023] ZAWCHC 43 (1 February 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER :3656 /2021
IN
THE MATTER BETWEEN:
THE
KUFAN TRUST (IT 326/2004)

FIRST APPLICANT
Represented
by
JACK
STANLEY FRANK N.O
JACK
STANLEY FRANK
SECOND

APPLICANT
LEONIE
ANDRE FRANK
THIRD

APPLICANT
AND
ABSA
BANK LIMITED
RESPONDENT
JUDGMENT
DELIVERED ELECTRONICALLY ON 01 FEBRUARY 2023
RALARALA,
AJ
INTRODUCTION
[1]
This is an application for an order setting aside a writ of
attachment, flowing from a judgment granted pursuant to a settlement

agreement. The writ of attachment was issued and signed by the
Registrar of this court on 23 January 2020 under case number
13256/2013
on 23 January 2020, in favour of the respondent, Absa Bank
Limited in respect of an immovable property owned by first applicant,

the Kufan Trust. The Property is situated at 4[...] A[...], 2[...]
B[...] Road, Strand, Western Cape.
[2]
The applicants, the Kufan Trust, Jack Stanley Frank, and Leonie Andre
Frank also seek that the attachment of the immovable property
made
pursuant to the aforesaid writ of attachment be set aside, and that
the respondent be restrained from selling the said immovable
property
in execution.
[3]
The applicants’ reasoning for the relief sought is premised on
the contention that, in the writ of attachment, the respondent
was
incorrectly cited as plaintiff and the other parties were incorrectly
cited as first to sixth defendants, this despite the
fact that the
matter was not an action. The defendants referred to in this matter
are the applicants.
[4]
Also, that the order upon which the issuing of the writ of attachment
was based, was in favour of two applicants namely, the
respondent as
the first applicant and Absa Home Loans Guarantee Company (Pty)
Limited, as second applicant. The court order regarding
payment of
the sum of R2 027 647, with accrued interest was issued jointly in
favour of two applicants and not solely in favour
of Absa Bank
Limited.
[5]
Based on the aforementioned, the applicants aver that the respondent
was precluded from causing a writ of attachment of the
immovable
property to be issued for payment, entirely in favour of the
respondent and wrongly citing itself as plaintiff.
PRELIMINARY
ISSUES
Representation
of the third applicant by second applicant
[6]
The first applicant, the Kufan Trust, is represented by the second
applicant, in his capacity as a trustee of the first applicant.
The
resolution adopted on 21 January 2021 by the trustees of the Kufan
Trust authorises his representative capacity in the litigation
of
this matter., is sanctioned by the resolution passed on 21 January
2021, by the trustees of the Kufan Trust. In terms of the
resolution,
Mr Jack Stanley Frank was to represent the third applicant in her
personal capacity. Mr Jack Stanley Frank is a retired
legal
practitioner, and not enrolled to practice law. The respondent
contends that the resolution does not constitute a valid resolution

in that it bears only one signature and not that of all three
trustees. The respondent further avers that no confirmatory
affidavits
were filed by any of the trustees both in their capacities
as trustees and in their personal capacities. In their response
applicants
contend that the document in question was a certified
extract of the minute of a meeting of the trustees of the Kufan Trust
in
terms whereof a resolution was made as set out therein. Applicants
further submit that Bevan Frank and Jack Stanley Frank were not

required to sign the resolution as the extract that was furnished as
annexure ‘A’ to the founding affidavit, was sufficient
to
verify that a valid resolution was passed.
[
7]       I am of the view that although
not all the trustees signed the resolution,  they appear
to be
acting in concert  as trustees, and the decision of the trust to
litigate manifests in Mr Jack Stanley Frank’s
conduct in
proceeding with the litigation of this matter unimpeded despite him
and Bevan Frank not having signed the resolution.
To insist on the
second applicant’s signature and Bevan Frank’s to be
attached on the resolution, would amount to putting
form over
substance. The trustees of the Kufan Trust appear to be acting
jointly in this regard.
[
8 ] Regarding the representation of the third applicant in the
personal capacity by the second respondent the court would not
allow
representation of a natural person by a layperson in a court of law.
Accordingly, I find the remarks of Mangcu- Lockwood
J (with Binns
-Ward and Sher JJ concurring) in
Commissioner for the South
African Revenue Service v Paoulter in re: Paoulter v Commissioner for
the South African Revenue
Service
(A74 /2021)
[2022]
ZAWCHC 206
(25 October 2022) , apposite in the circumstances and
dispositive of the preliminary issue raised :
“…
the
recent Supreme Court of Appeal (“SCA”) case of
Commissioner for the South African Revenue Service v Candice –Jean

van der Merwe disposes of that issue. There, the SCA, interpreting
section 25 of the Legal Practice Act 28 of 2014 (“LPA”)

and applying the common law  held that no lay person may
represent a natural person in a court of law, and that a court has
no
discretion to allow a layperson to represent a natural person in a
court of law …”
[
9] In view of the delays that have already been occasioned in this
matter, the matter has to be dealt with without any further
delays.
The application proceeded without legal representation in respect of
the third applicant
.
This leads me to the third
preliminary point.
Condonation
of the late filing of the Applicant’s heads of argument
[
10] The applicants were out of time in filing their heads of
argument. Hence, an application for condonation of the late filing

thereof. Second applicant asserts that he could not adequately
prepare for this matter, as he was involved in another matter. The

respondent did not oppose the application for condonation.
I am of the view that it is in the interest of justice to
condone the late filing of the applicant’s heads of argument.
In
the circumstances the application for condonation must succeed.
FACTUAL
BACKGOUND
[
11] A settlement agreement was made an order of court by the parties,
and an order  was granted on 29 January 2015, in favour
of the
respondent (who was the applicant in that application). The applicant
was the respondent in this matter and the applicants
in
casu
being the respondents together with their son Bevan Russel Frank.
Bevan Russel Frank was cited both in his capacity as a trustee
of the
Kufan Trust, as well as in his personal capacity.
[
12] Upon breach by the applicants
of the
terms of the settlement agreement’s conditions, respondent
brought an application in terms of rule 41(4) in which it
sought
judgment against applicants and Bevan Russel Frank. It can be gleaned
from the judgment of Fortuin J, that three different
matters were
heard by her on the same day which she referred to as Claims A, B and
C respectively. In claim A, judgment was given
in favour of ABSA Bank
Limited, the respondent in this application. In respect of claim B
and C, the respondent and ABSA Home Loans
Company (Pty) Ltd were the
applicants.
[
13] The applicants and the respondent
were
thus informed of the terms embodied in the order of court as
per the judgment of Fortuin J on 6 November 2015. On 15 December 2015

applicants and Bevan Russel Frank applied for rescission of the said
judgment which the respondent opposed. The application was

unsuccessful. An application for leave to appeal the judgment of the
rescission application was launched by the applicant which
was
dismissed on 7 May 2019. A year later in June 2020 the applicants
filed an application for leave to appeal the rescission of
judgment
in the SCA. However, the application for leave to appeal
was dismissed with costs on 3 September 2020.
[
14] Subsequent thereto, the respondent caused the immovable property
to be declared executable pursuant to the rule
41(4)
order by Fortuin J, to be sold in execution on 8 December
2020. Two weeks prior to the date of sale in execution of the
property,
the applicants and Bevan Russel Frank filed and served an
application in terms of
Section 17(2)(f)
of the
Superior Courts Act,
10 of 2013
for the reconsideration by the SCA of its decision, in
dismissing the applicants’ initial application for leave to
appeal.
This however, inevitably resulted in the cancelation of the
sale in execution. Ultimately, the reconsideration application was
unsuccessful in the SCA.
[16]
The applicants approached this court seeking the relief set out in
paragraphs 1 and 2 above. The respondent opposed the application,

citing that the applicants rely on the patent errors as the basis of
the application, and simultaneously filed a conditional counter

application for the variation of the court order in terms of
Rule 42
(1) (b), and that same be varied and rectified.
ISSUES
FOR DETERMINATION
[17]
This court is enjoined to determine the following issues:
Whether
the writ of attachment flowing from the judgment of Fortuin J on 6
November 2015 is in accordance with the order on which
it is
premised. If not, the obvious and crisp question would be
whether the writ of execution stands to be set aside and the
execution of the immovable property declared invalid for that reason?
ARGUMENTS
BY THE PARTIES
[18]
Mr Frank in his capacity as a trustee of the first applicant and
cited as the second applicant in his personal capacity, contended

that there is merit in the setting aside, cancelling or, declaring
invalid the issued writ of attachment in question. He claims
to
support his contention on a multitude of assertions including that
the addresses of the defendants have not been set out therein,
nor
does the writ of execution reflect where service thereof should be
effected on the defendants. It was argued that although
the writ of
attachment refers to a date of judgment which is the 13 February
2018, the judgment in question has not been identified
therein. This
he argued renders the writ of attachment vague and meaningless.
It ought not to have been issued. It was further
contended that the
citation of the parties in the writ of attachment was wrong which
conflicted and was inconsistent with the parties
as cited in the
order of court. The applicants in their founding affidavit averred
that the order of court and the writ of attachment
are in conflict
and at odds with one another.
[19]
It was contended that in view of the fact that the matter was not an
action, the parties should not have been cited as plaintiff
and
defendants in the writ of execution, but as applicant and
respondents. Mr Frank added that the writ of attachment ought to
have
corresponded with the court order, which was in favour of two
applicants, not merely in favour of Absa Bank. According to
him, this
would have affected the amount on the writ of attachment which
reflects R2 027 646, 11 as owing to plaintiff. The applicant
further
pointed out that there ought to have been personal service of the
writ of attachment on all defendants, and as there was
no addresses
of the parties reflected on the writ of attachment, therefore there
was no effective and adequate service.
[20]
Respondent claims there was proper service of the writ of attachment
in that it was served on the trustees of the Trust at
the Trust’s
designated
domicillium citandi et executandi
. The
Respondent further asserts in the answering affidavit that the
rule in any event does not require personal service of the writ of

attachment, but merely requires that it be served on the owner of the
immovable property which has been done in
casu.
The
respondent’s Counsel advanced an argument that the order of
Fortuin J should prevail as it is the only order that was
granted in
the main application. The respondent further argued that any order
typed out by a Registrar which does not correspond
with the order
granted by Fortuin J, cannot in any way alter or modify the Fortuin
order as the Registrar does not possess such
powers. The alteration
of the order made by the Registrar would accordingly constitute an
act that is
ultra vires
, and amount to a nullity in law.   It
was
submitted on behalf of the
respondent, that the only inference that can be drawn from the
failure on the part of the applicant,
to annex the judgment of
Fortuin J to the founding affidavit is that they were aware that it
would lay bare or expose the errors
committed by the Registrar in
drafting of the order.
[21]
In their heads of argument the respondents assert that the order that
was issued by the Registrar pursuant to the Fortuin judgment
in so
far as it sets out two applicants in the heading thereof is patently
incorrect. It is abundantly clear from the Fortuin judgment
that the
only applicant in Claim A is ABSA Bank Limited. The order issued by
the Registrar is rendered incorrect in this regard,
as there was no
second applicant in the main application. Despite this clear and
evident fact, the applicants refuse to accept
that the Registrar’s
order was patently and
incorrectly typed
out by the typist. It is further argued that the applicant’s
insistence that the writ of execution should
follow the order issued
by the Registrar and not that of Fortuin J, means that respondent
would be forced to make the same mistake
in their warrant of
execution that the Registrar made in the order that was issued by her
or him.
[22]
The respondent contend that in essence, the writ of execution would
be incorrect and falls to be set aside, as it is in conflict
with the
only order the respondent and the applicants are bound by, which is
the order made by Fortuin J in her judgment. As a
matter of fact,
this court denied both a request for an application for the
rescission of the same order which was dismissed by
this court, as
well as the application for leave to appeal against such dismissal.
Having been dismissed by both this court as
well as the Supreme Court
of Appeal including a reconsideration application of such dismissal
by the Supreme Court of Appeal, the
applicants are intent not to
accept that the only order binding the parties is the order embodied
in the Fortuin judgment.
[23]
Regarding the citation of the parties, counsel for the respondent
conceded that it is indeed so that the respondent was the
applicant
and not the plaintiff in the main application. The applicants were
the respondents and not the defendants. The respondent
further
acknowledges that in the heading of the writ of execution ABSA Bank
Limited is set out as the plaintiff and the applicants
as the
defendants. Nevertheless, counsel for the respondent asserts that no
adverse or material outcome out turn should result,
as it does not
affect the functions and operation of the writ of execution.
Furthermore, no prejudice has been alleged to have
been endured by
the applicants.
ANALYSIS
AND LEGAL PRINCIPLES.
[24]
The basic test is to determine whether a writ is in accordance with
the court order on which it was issued or the facts show
that the
debt has been satisfied or the order on which it is premised is
itself set aside. See
Rand West City Local Municipality v Quill
Associates (Pty) Ltd and another
[2021] Jol 51360
(SCA);
Le
Roux v Yskor Langoed (EDMS) BPK en andere
1984(4) SA 252 (T) at
257 B-I.
[25]
In this matter, it is common ground that both the order directing the
registrar to issue the writ of execution as well as the
writ of
execution itself contained some errors. It is abundantly clear that
the order was issued correctly in terms of the judgment.
The
respondent asserts in the answering affidavit that the fact that the
respondent in
casu
was described as Plaintiff in the writ of
execution instead of applicant and applicants in
casu
were
described as defendants instead of respondents does not invalidate
the writ in its entirety and cannot constitute a basis
and ground
upon which the entire writ falls to be set aside. Counsel for the
respondents further argued that the errors on the
order were patent
inaccuracies by the registrar. That is so because when the court
order and the writ of execution are looked at
in conjunction with the
Judgment of Judge Fortuin, and not in isolation, it is clear that the
errors in the order were created
in the issuing process by the
registrar. Most significantly, the parties signed a settlement
agreement on 18 December 2014 which
underpins the 6 November 2015
judgment by Fortuin J. Therefore, at all material times the
applicants must have been aware that
the judgment in Claim A was in
favour of ABSA Bank Limited only. In my mind, clearly the reason as
to why the writ of execution
does not accord with the order and with
the judgment it is premised on should be considered
.
I concur
with the respondent’s counsel, that the mistakes of the
registrar should not be permitted to supersede a properly
considered
and legally binding judgment of the court. To me that would be unjust
to say the least.
[26]
The applicants contended that the respondent took no steps to rectify
the errors in the order and ought to have known that
the writ
conflicted with the order. It must be noted that the applicants are
not asserting that the errors referred to in the court
order and writ
of execution would prejudice applicants in any manner or render the
writ incapable of being given effect to. See
Sachs v Katz 1955(1)
SA 67 (T) at 72 -E
;
Graphic Laminates CC v Albar Distributors
CC
and Another
2005 (5) SA 409
at 413 E.
[27]
On the other hand, the applicants had been properly served after the
decision was rendered, therefore they were aware of the
inaccuracies
on the writ of execution for seven years. It was only subsequent to
the failed attempts to rescind the judgment and
thereafter a
protracted appeal process, that applicants’ focus was
redirected at the errors on the order and writ of execution.
This
application in my view, is another stratagem to frustrate the
respondent in giving effect to the court order. Evidently, the

intended outcome of the application for rescission of the judgment
and the appeal process that followed was the automatic cancellation

of the sale in execution in December 2018. Setting aside or
cancelling a writ of execution in this instance purely because the

Registrar made insignificant and immaterial errors when issuing an
order and a writ of execution, in my view, would not be justified
in
this case. Any decision by the court with the effect of cessation in
the process of carrying out a judgment, which is what execution
in
this sense means, in my view should be based on substantial reasons.
To my mind, the errors on the order and the writ of execution
were
bona fide mistakes by the Registrar and I find that the applicant’s
application to be opportunistic and vexatious. I am therefore
of the view that the application has no merit
and must fail.
[28]
In the result the following order is made:
[28.1] The
applicant’s application to set aside the writ of
execution is hereby dismissed.
[28.2] The costs of the
application are to be borne by the applicants including costs for
counsel.
RALARALA,
AJ
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR APPLICANT: IN PERSON (MR JACK FRANK)
COUNSEL
FOR RESPONDENT: ADV DANIEL RABIE
INSTRUCTED
BY: MARAIS MULLER HENDRICKS ATTORNEYS

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