CIVIL PROCEDURE – APPLICATION TO HAVE JUDGMENT OBTAINED IN THE MAGISTRATE’S COURT ENFORCED IN THE HIGH COURT

CIVIL PROCEDURE – APPLICATION TO HAVE JUDGMENT OBTAINED IN THE MAGISTRATE’S COURT ENFORCED IN THE HIGH COURT

The applicant issued summons against the respondent in the Magistrate’s Court Windhoek for unpaid monthly levies and for the respondent’s failure to contribute to the body corporate fund. On 21 October 2021, the applicant obtained default judgment against the respondent in the amount of N$64 913.79. The applicant caused a warrant of execution to be issued against the moveable property of the respondent. The deputy sheriff’s return of service was one of a nulla bona at the domicilium citandi et executandi of the respondent. On 10 June 2022, the applicant launched an application in terms of rule 65 of the Rules of the High Court, whereby the applicant sought to have the judgment obtained in the Magistrate’s Court enforced in the High Court and to have the respondent’s immovable property declared specially executable.

PRINSLOO J considered this unopposed application and held that:

1. The only thing that the return of service was proof of in the current instance was that there was no compliance with the Act. Nothing more, nothing less. The messenger neither demanded nor attempted to demand satisfaction of the writ. In my view, the applicant did not exhaust the remedy available to it in terms of the Magistrates’ Court Act.
2. The applicant prematurely approached the High Court for an order declaring the property concerned specially executable, even though the High court has the inherent jurisdiction to come to the aid of the applicant. The applicant did not make out a case on its papers why the High court, through process-in-aid, should grant an order declaring immovable property specially executable based upon the orders of another court. A process is available to the applicant to satisfy the judgment debt, which was not fully used to the applicant’s benefit.

In the result the application was refused.

The Hills Body Corporate v Grove NAHCMD 2 September 2022