Ash v Mannering and Another (34408/2011) [2013] ZAGPJHC 11 (14 February 2013)

Ash v Mannering and Another (34408/2011) [2013] ZAGPJHC 11 (14 February 2013)

The court held that it would not be proper at this stage to determine the appealability of the interim interdict, but proceeded on the assumption that the order is appealable. The applicant established a proper case for leave to execute, as refusal would negate the purpose of the urgent interim interdict and cause substantial prejudice. The balance of convenience favours the applicant, and any potential prejudice to the respondent can be mitigated by imposing conditions, specifically prohibiting the sale or disposal of the 95% member's interest pending appeal. The application for leave to execute is granted, with costs reserved for the appeal.

Citation
[2013] ZAGPJHC 11
Parties
Applicant: Chanan Moshe Ash; Respondent: Lawrence Henry Mannering; Respondent: Eastern Suburbs Medicine Supplies CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 February 2013
Case Number
34408/2011
Procedural Posture
Leave to Appeal / Application for Leave to Execute Pending Appeal
Outcome
Leave to execute the interim interdict is granted, subject to conditions.
Judges
Windell
Legal Topics
Leave to Execute Pending Appeal, Interim Interdict, Member Interest Dispute, Balance of Convenience
Civil Procedure Commercial and Corporate Leave to Execute Pending Appeal Interim Interdict Member Interest Dispute Balance of Convenience

Case Brief

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Parties

Chanan Moshe Ash

Applicant

Lawrence Henry Mannering

Respondent

Eastern Suburbs Medicine Supplies CC

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Execute Pending Appeal

Legal Issues

  1. 1 Whether leave to execute the interim interdict should be granted pending the outcome of the application for leave to appeal.
  2. 2 Whether the interim interdict granted by Moshidi J is appealable.
  3. 3 Whether the applicant will suffer prejudice if execution is not granted.

Ratio Decidendi

The court held that it would not be proper at this stage to determine the appealability of the interim interdict, but proceeded on the assumption that the order is appealable. The applicant established a proper case for leave to execute, as refusal would negate the purpose of the urgent interim interdict and cause substantial prejudice. The balance of convenience favours the applicant, and any potential prejudice to the respondent can be mitigated by imposing conditions, specifically prohibiting the sale or disposal of the 95% member's interest pending appeal. The application for leave to execute is granted, with costs reserved for the appeal.

Court Disposition

Leave to execute the interim interdict is granted, subject to conditions.

Orders

  • Leave to execute is granted.
  • The applicant is interdicted from selling or disposing of the 95% member's interest pending the outcome of the appeal procedure.