Gloy and Another v Cyril Smiedt (Edms) Bpk (25/2008) [2008] ZAFSHC 4 (1 January 2008)

Gloy and Another v Cyril Smiedt (Edms) Bpk (25/2008) [2008] ZAFSHC 4 (1 January 2008)

The court found that paragraph 4 of the settlement agreement provided that any payment made in accordance with the magistrate's compensation order would also be regarded as payment under the settlement agreement. The applicants made payment in accordance with the magistrate's order, and the discrepancy in payment dates was only one day. The respondent's insistence on execution was unreasonable and vexatious, given the minor nature of the breach and the fact that the applicants complied with the substantive requirements of both the order and the agreement. The court held that there was compliance with the settlement agreement and no grounds for the issuance of the writs of execution. The...

Citation
[2008] ZAFSHC 4
Parties
Applicant: Petrus Johannes Gloy; Applicant: Jeanette Gloy; Respondent: Cyril Smiedt (Edms) Bpk
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
1 January 2008
Case Number
25/2008
Procedural Posture
Urgent Application / Application to Set Aside Writs of Execution Issued Pursuant to Settlement Agreements Made Orders of Court.
Outcome
Application granted; writs of execution set aside; respondent ordered to pay costs on attorney and client scale.
Judges
C. J. Musi
Legal Topics
Writ of Execution, Settlement Agreement, Interpretation of Contract, Costs Order
Civil Procedure Writ of Execution Settlement Agreement Interpretation of Contract Costs Order

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Petrus Johannes Gloy

Applicant

Jeanette Gloy

Applicant

Cyril Smiedt (Edms) Bpk

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Writs of Execution Issued Pursuant to Settlement Agreements Made Orders of Court.

Legal Issues

  1. 1 Whether the writs of execution issued against the applicants should be set aside due to alleged non-compliance with payment dates in the settlement agreement.
  2. 2 Whether payment made in accordance with the magistrate's compensation order constitutes compliance with the settlement agreement.
  3. 3 Whether the respondent acted unreasonably in pursuing execution based on a minor discrepancy in payment dates.

Ratio Decidendi

The court found that paragraph 4 of the settlement agreement provided that any payment made in accordance with the magistrate's compensation order would also be regarded as payment under the settlement agreement. The applicants made payment in accordance with the magistrate's order, and the discrepancy in payment dates was only one day. The respondent's insistence on execution was unreasonable and vexatious, given the minor nature of the breach and the fact that the applicants complied with the substantive requirements of both the order and the agreement. The court held that there was compliance with the settlement agreement and no grounds for the issuance of the writs of execution. The...

Court Disposition

Application granted; writs of execution set aside; respondent ordered to pay costs on attorney and client scale.

Orders

  • The writs of execution issued on 27 November 2007 under case numbers 4877/2005 and 4309/2006 are set aside.
  • The respondent is ordered to pay the costs of this application on the attorney and client scale.