RULE 46A AND SALE OF HOME OWNED BY COMPANY
Segalo v Botha NO [2021] ZAGPJHC 770
Mr Segalo and his family reside in a property owned by a company, Blue Flame. Mr Segalo was the sole director and shareholder of Blue Flame, which was provisionally and then finally liquidated. Blue Flame purchased the property for R16,5 million. FirstRand is the bondholder in respect of the property and the only secured creditor in the winding up of Blue Flame. The liquidators wished to sell the assets of Blue Flame and sought the eviction of Mr Segalo and persons with him. Mr Segalo approached the court with the contention that s 386 of the Companies Act 61 of 1973 is unconstitutional and invalid as it fails to provide for judicial oversight over sales of residential immovable properties of liquidated companies.
Matojane J discusses the exercise of liquidators’ powers in winding-up; the right of access to courts; the right to housing; the new Rule 46A; the respondents’ argument that the protection afforded by Rules 46 and 46A of the Uniform Rules of Court regarding execution against homes does not apply where a juristic person owns the property; and that the rights conferred by s 26 of the Constitution (housing) do not vest in the juristic entity which owns the property.
The Application is dismissed with costs.
[28] The protection is aimed at poor people who own and occupy the property sought to be executed without proper consideration of their circumstances. The Constitution does not require judicial oversight when the property belonging to a company is sold.
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PRESCRIPTION AND REPUDIATION OF CONTRACT
Pretorius v Bedwell [2022] ZASCA 4
Mr Bedwell owned a holiday home in Oyster Bay in the Eastern Cape and needed a loan to complete a guest house. So a written agreement was concluded where Mr Pretorius (his brother-in-law) would purchase the property and obtain a loan with a mortgage. Mr Bedwell would continue as before and when he was able to secure a mortgage the property would be transferred back into his name. The relationship soured and Mr Pretorius sold the property to a third party. Mr Bedwell claimed damages of R2,040,000 in the High Court, claiming that Mr Pretorius had repudiated the contract by selling the property to a third party.
Mr Pretorius raised a special plea of prescription, contending that he repudiated the contract on 8 April 2008 and Mr Bedwell issued summons on 11 October 2011. The trial court upheld the special plea and the full court overturned this decision, replacing it with an order dismissing the special plea.
Mokgohloa JA discusses the onus to prove that the claim had prescribed, including proof of when prescription had commenced; when repudiation occurs and the effect of the response of the innocent party.
* See paras [10] and [11].
The court finds that Mr Pretorius’ special plea did not disclose a defence in law and failed on the facts. The full court was correct in concluding that it had to be dismissed.
The appeal is dismissed with costs.
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FACEBOOK AND PERSONAL INFORMATION – RIGHT TO PRIVACY
Smuts v Botha [2022] ZASCA 3
Cyclists on an adventure ride crossed Mr Botha’s farm and noticed cages containing a dead baboon and a dead porcupine. Mr Smuts, a wildlife conservationist was sent photos by one of the cyclists and he posted these with comments on his Facebook page, with Mr Botha’s details. The Facebook post generated negative comments about Mr Botha, who turned to the High Court for an interim interdict. A rule nisi was granted and on the return date it was confirmed. The court found that Mr Botha’s privacy had been infringed by the publication of his personal information on Facebook.
Mathopo JA discusses the right to privacy; whether the publication of Mr Botha’s personal information such as his identity and his business and home address enjoyed the protection of the right to privacy; whether it was in the public interests that his personal information be published; and the contention that the comments on Facebook were fair comment, seeking to expose the cruel use of animal traps.
The court notes that Mr Botha makes use of animal traps openly where hunters and cyclists have access, that his information can easily be found in the Deeds Office as well as on Google, and that his name and occupation and one of his addresses was published by himself on the internet. Essentially what Mr Smuts did was to give further publicity to information about Mr Botha that was already in the public domain.
See [21] and [29] on how the High Court erred.
The appeal is upheld and the order of the High Court replaced with one discharging the rule nisi and dismissing the application.
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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