Bartmann and Another t/a Khaya Ibhubesi v De Lange and Another (J 441/09) [2009] ZALC 36; [2009] 9 BLLR 872 (LC); (2009) 30 ILJ 2701 (LC) (17 April 2009)

Bartmann and Another t/a Khaya Ibhubesi v De Lange and Another (J 441/09) [2009] ZALC 36; [2009] 9 BLLR 872 (LC); (2009) 30 ILJ 2701 (LC) (17 April 2009)

The Court found that, although the Applicant's rescission application was brought out of time, there was a prima facie explanation for the delay due to the alleged prior settlement between the parties. The Court expressed serious concern about the disproportionate legal costs claimed in relation to the underlying debt, suggesting that such litigation may be driven by attorneys rather than clients and may constitute an abuse of process. The Court condoned the Applicant's non-compliance with urgent application rules and granted an interim stay of execution pending the outcome of the rescission application. The Court reserved the question of costs and directed the parties to address the...

Citation
[2009] ZALC 36
Parties
Applicant: Bartmann AAC & Bartmann MME t/a Khaya Ibhubesi; Respondent: De Lange CLG; Respondent: The Sheriff of Potchefstroom
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
17 April 2009
Case Number
J 441/09
Procedural Posture
Stay Application / Urgent Application to Stay Execution of Writ Pending Rescission Proceedings
Outcome
Interim stay of execution granted pending the rescission application; costs reserved for determination on the return date.
Judges
Todd
Legal Topics
Stay of Execution, Rescission of Judgment, Costs Awards, Basic Conditions of Employment Act, Abuse of Process
Labour Law Civil Procedure Stay of Execution Rescission of Judgment Costs Awards Basic Conditions of Employment Act Abuse of Process

Case Brief

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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 to Stay Execution of Writ Pending Rescission Proceedings

Legal Issues

  1. 1 Whether the execution of the writ issued pursuant to the Labour Court's order should be stayed pending the rescission application.
  2. 2 Whether the litigation and costs incurred are commercially viable or constitute an abuse of process.
  3. 3 Whether the Applicant's non-compliance with urgent application rules should be condoned.

Ratio Decidendi

The Court found that, although the Applicant's rescission application was brought out of time, there was a prima facie explanation for the delay due to the alleged prior settlement between the parties. The Court expressed serious concern about the disproportionate legal costs claimed in relation to the underlying debt, suggesting that such litigation may be driven by attorneys rather than clients and may constitute an abuse of process. The Court condoned the Applicant's non-compliance with urgent application rules and granted an interim stay of execution pending the outcome of the rescission application. The Court reserved the question of costs and directed the parties to address the...

Court Disposition

Interim stay of execution granted pending the rescission application; costs reserved for determination on the return date.

Orders

  • The Applicant's non-compliance with the rules is condoned; the application may proceed as urgent.
  • A rule nisi is issued calling upon the Respondents to show cause why a final order should not be granted staying execution of the order dated 5 November 2008 under case number J275/08, including the writ issued on 10 February 2009, pending finalisation of the rescission application.