A v C (formerely A) and Another (006139/2022) [2022] ZAGPJHC 611 (26 August 2022)

A v C (formerely A) and Another (006139/2022) [2022] ZAGPJHC 611 (26 August 2022)

The court found that the applicant had acted reasonably by offering a guarantee for the amount in dispute and seeking the release of his attached goods pending the outcome of a declaratory action. The first respondent acted unreasonably by refusing to accept the guarantee and instructing the sheriff to remove the goods, which necessitated the urgent application. The matter was settled in favour of the applicant, with the first respondent conceding to the setting aside of the writ of execution. Given the circumstances and the conduct of the first respondent, the court exercised its discretion to award costs against her, both for the execution and the application.

Citation
[2022] ZAGPJHC 611
Parties
Applicant: A [....] 1 G [....] J [....]; Respondent: C [....] 1 C [....] 2 (FORMERLY A [....] 2); Respondent: Sheriff Sandton
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 August 2022
Case Number
006139/2022
Procedural Posture
Stay Application / Application for Stay of Execution Pending Declaratory Action
Outcome
Application granted; writ of execution set aside; costs awarded against first respondent.
Judges
MAKUME
Legal Topics
Stay of Execution, Divorce Settlement Agreement, Costs Award, Urgent Application
Civil Procedure Family and Children Stay of Execution Divorce Settlement Agreement Costs Award Urgent Application

Case Brief

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Parties

A [....] 1 G [....] J [....]

Applicant

C [....] 1 C [....] 2 (FORMERLY A [....] 2)

Respondent

Sheriff Sandton

Respondent

Procedural Posture

Stay Application / Application for Stay of Execution Pending Declaratory Action

Legal Issues

  1. 1 Whether the writ of execution should be set aside or stayed pending the outcome of a declaratory action regarding the divorce settlement agreement.
  2. 2 Who should bear the costs of the application and execution proceedings.

Ratio Decidendi

The court found that the applicant had acted reasonably by offering a guarantee for the amount in dispute and seeking the release of his attached goods pending the outcome of a declaratory action. The first respondent acted unreasonably by refusing to accept the guarantee and instructing the sheriff to remove the goods, which necessitated the urgent application. The matter was settled in favour of the applicant, with the first respondent conceding to the setting aside of the writ of execution. Given the circumstances and the conduct of the first respondent, the court exercised its discretion to award costs against her, both for the execution and the application.

Court Disposition

Application granted; writ of execution set aside; costs awarded against first respondent.

Orders

  • The costs of executing the writ of execution, including removal, storage, and return of the applicant's oven stand, shall be paid by the first respondent.
  • The costs of this application shall be paid by the first respondent on a party and party scale to be taxed.