Ebersohn v Pretorius and Others (55857/2016) [2018] ZAGPPHC 645 (2 May 2018)

Ebersohn v Pretorius and Others (55857/2016) [2018] ZAGPPHC 645 (2 May 2018)

The court found that the settlement agreement required payment of R180,000 only upon delivery of duly and properly signed CK transfer documents. The correct documents were only delivered on 3 April 2018, and until then, payment was not due. The writs of execution and attachments issued on 15 March 2018 were therefore unlawful and must be set aside. The applicant acted reasonably throughout, while the respondents' conduct was unreasonable but did not reach the threshold for a costs order de bonis propriis. The matter was urgent due to the ongoing attachments and interference with the applicant's property rights. Costs were awarded against the second respondent on an attorney and client scale.

Citation
[2018] ZAGPPHC 645
Parties
Applicant: Gerrit Cornelius Ebersohn; Respondent: Amanda Pretorius; Respondent: Shapiro & Ledwaba Inc; Respondent: Sheriff of the High Court, Brakpan
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 May 2018
Case Number
55857/2016
Procedural Posture
Urgent Application / Application to Set Aside Writs of Execution and Attachments; Costs Order Sought
Outcome
Application granted. Writs of execution and attachments set aside. Costs awarded against the second respondent on an attorney and client scale.
Judges
N Kollapen
Legal Topics
Urgent Interdict, Writ of Execution, Settlement Agreement, Costs De Bonis Propriis, Attorney and Client Costs
Civil Procedure Commercial and Corporate Urgent Interdict Writ of Execution Settlement Agreement Costs De Bonis Propriis Attorney and Client Costs

Case Brief

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Parties

Gerrit Cornelius Ebersohn

Applicant

Amanda Pretorius

Respondent

Shapiro & Ledwaba Inc

Respondent

Sheriff of the High Court, Brakpan

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Writs of Execution and Attachments; Costs Order Sought

Legal Issues

  1. 1 Whether the writs of execution and attachments issued under case number 55857/2016 were lawful and should be set aside.
  2. 2 Whether payment under the settlement agreement was conditional upon delivery of duly and properly signed CK transfer documents.
  3. 3 Whether the conduct of the respondents justified a punitive costs order de bonis propriis.

Ratio Decidendi

The court found that the settlement agreement required payment of R180,000 only upon delivery of duly and properly signed CK transfer documents. The correct documents were only delivered on 3 April 2018, and until then, payment was not due. The writs of execution and attachments issued on 15 March 2018 were therefore unlawful and must be set aside. The applicant acted reasonably throughout, while the respondents' conduct was unreasonable but did not reach the threshold for a costs order de bonis propriis. The matter was urgent due to the ongoing attachments and interference with the applicant's property rights. Costs were awarded against the second respondent on an attorney and client scale.

Court Disposition

Application granted. Writs of execution and attachments set aside. Costs awarded against the second respondent on an attorney and client scale.

Orders

  • The matter is declared urgent as contemplated in Uniform Rule 6(12)(a).
  • The writs of execution issued by the registrar on 15 March 2018 under case number 55857/2016 are set aside.