Hattingh and Another v Swart and Another (19454/18) [2018] ZAGPJHC 686 (26 November 2018)

Hattingh and Another v Swart and Another (19454/18) [2018] ZAGPJHC 686 (26 November 2018)

The court found that the agreement between the parties required both parties to accept the quantification of the loan account by the appointed accountant before the amount became final, due, and payable. The relevant clauses (5.5 and 6.2.4) expressly stipulated that the quantification must be agreed upon by both parties. The court rejected the respondent's interpretation that only the process of quantification required agreement, holding that the plain language of the contract required mutual acceptance of the quantified amount. As Mr Steyn did not accept the quantification, there was no lawful causa for the writ of execution, and the writ must be set aside.

Citation
[2018] ZAGPJHC 686
Parties
Applicant: Steyn Johan Hattingh; Applicant: Dynamic Plastic Packaging CC; Respondent: Gert Johannes Swart; Respondent: Combined Broker Network (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 November 2018
Case Number
19454/18
Procedural Posture
Urgent Application / Application to Set Aside Writ of Execution
Outcome
Application granted; writ of execution set aside; respondent to pay costs.
Judges
Keightley
Legal Topics
Setting Aside Writ, Contractual Interpretation, Specific Performance, Quantification of Liability
Civil Procedure Commercial and Corporate Setting Aside Writ Contractual Interpretation Specific Performance Quantification of Liability

Case Brief

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Parties

Steyn Johan Hattingh

Applicant

Dynamic Plastic Packaging CC

Applicant

Gert Johannes Swart

Respondent

Combined Broker Network (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Writ of Execution

Legal Issues

  1. 1 Whether the writ of execution issued against the first applicant is supported by a lawful causa under the agreement between the parties.
  2. 2 Whether the quantification of the loan account by the appointed accountant is final and binding without acceptance by both parties.
  3. 3 Whether the 2016 judgment provides a lawful basis for the writ in the absence of agreement on the quantified amount.

Ratio Decidendi

The court found that the agreement between the parties required both parties to accept the quantification of the loan account by the appointed accountant before the amount became final, due, and payable. The relevant clauses (5.5 and 6.2.4) expressly stipulated that the quantification must be agreed upon by both parties. The court rejected the respondent's interpretation that only the process of quantification required agreement, holding that the plain language of the contract required mutual acceptance of the quantified amount. As Mr Steyn did not accept the quantification, there was no lawful causa for the writ of execution, and the writ must be set aside.

Court Disposition

Application granted; writ of execution set aside; respondent to pay costs.

Orders

  • The writ of execution under case number 36584/2015 dated 20 April 2018 issued by the Registrar on 24 April 2018 is set aside.
  • The respondent is ordered to pay the costs of the application.