Bartmann ACC & Bartmann MME t/a Khaya Ibhubesi v De Lange and Another (J441/09) [2009] ZALCJHB 73 (17 April 2009)

Bartmann ACC & Bartmann MME t/a Khaya Ibhubesi v De Lange and Another (J441/09) [2009] ZALCJHB 73 (17 April 2009)

The court found that, although the applicant's delay in bringing the rescission application was problematic, there was a prima facie basis for the stay given the circumstances of settlement and the payment of the judgment debt. The court expressed serious concern about the excessive legal costs claimed by the...

Source-derived case information.

Citation
[2009] ZALCJHB 73
Parties
Applicant: Bartmann AAC & Bartmann MME t/a Khaya Ibhubesi; Respondent: De Lange CLG; Respondent: The Sheriff of Potchefstroom
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
17 April 2009
Case Number
J441/09
Procedural Posture
Stay Application / Urgent Application for Stay of Execution Pending Rescission Proceedings
Outcome
Interim stay of execution granted pending the outcome of the rescission application; costs reserved.
Judges
Todd
Legal Topics
Stay of Execution, Rescission of Judgment, Attorney and Own Client Costs, Basic Conditions of Employment Act, Abuse of Process
Labour Law Civil Procedure Stay of Execution Rescission of Judgment Attorney and Own Client Costs Basic Conditions of Employment Act Abuse of Process

Source-derived case record

Summary, issues, holding and outcome

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Parties

Bartmann AAC & Bartmann MME t/a Khaya Ibhubesi

Applicant

De Lange CLG

Respondent

The Sheriff of Potchefstroom

Respondent

Procedural Posture

Stay Application / Urgent Application for Stay of Execution Pending Rescission Proceedings

Legal Issues

  1. 1 Whether the execution of the writ should be stayed pending the rescission application.
  2. 2 Whether the litigation is commercially viable and justified given the costs involved.
  3. 3 Whether the attorneys' bill of costs constitutes an abuse of process.

Ratio Decidendi

The court found that, although the applicant's delay in bringing the rescission application was problematic, there was a prima facie basis for the stay given the circumstances of settlement and the payment of the judgment debt. The court expressed serious concern about the excessive legal costs claimed by the respondent's attorneys, which far exceeded the value of the underlying claim and suggested an abuse of process. The court held that the interests of justice warranted a stay of execution pending the resolution of the rescission application, but reserved the question of costs for further consideration. The court also directed the parties to address the commercial viability of the...

Court Disposition

Interim stay of execution granted pending the outcome of the rescission application; costs reserved.

Orders

  • The applicant's non-compliance with the rules is condoned and the application may be brought as one of urgency.
  • A rule nisi is issued calling upon the respondents to show cause on a date to be determined by the Registrar why a final order should not be granted staying further execution of the order made on 5 November 2008 under case number J275/08, including the writ issued on 10 February 2009, pending finalisation of the...