Du Plooy and Another v Sheriff for the District of Virginia and Others (5326/2024) [2025] ZAFSHC 147 (29 May 2025)

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
29 May 2025 at 15h00.

Summary:
   Application for interdict
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 applicants 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 situated
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

[3]            
The first applicant is a major businessman
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 Value 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 third respondent is Ruwayne Smith 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 fourth
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; the application is opposed by the
third and fourth
respondents.

Background and relief

[6]            
On
22 August 2024, the applicants 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 far back as
22 December 2022, placed under provisional liquidation,
and then
final liquidation on 2 February 2023.[3]
The director of Global Group 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 purchased
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 16^th
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, 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 or 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 assets 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 evidence[6]
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 “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, there 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, they 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