Kitan Foods (Pty) Ltd v National Empowerment Fund and Others (47197/2018) [2019] ZAGPJHC 8 (25 January 2019)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

Case No: 47197/2018

IN THE MATTER BETWEEN

KITAN FOODS (PTY) LTD APPLICANT

AND

NATIONAL EMPOWERMENT FUND FIRST

RESPONDENT

THE SHERIFF FOR PRETORIA NORTH SECOND

RESPONDENT

THE SHERIFF FOR CULLINAH THIRD

RESPONDENT

THE SHERIFF OF PRETORIA CENTRAL FOURTH

RESPONDENT

JUDGMENT

SENYATSI AJ

[1] This is an opposed application brought on urgent basis to suspend the execution process occurring pursuant to a writ of execution issued under case number 33492 of 2016 pending the outcome of 3 interlocutory applications to set the warrant aside.

[2] The first respondent obtained a perfection order of its general notarial covering bond over the movable assets of the applicant on the 25 August 2017. The order was to be executed over 4 addresses at which the applicant conducts the business of KFC franchise.

[3] The perfection order granted by Siwendu J authorizes the first respondent to dispose of all of the applicant’s movable

property and effects of whatever nature and description and wheresoever situate.

[4] The perfection order is not in dispute and it was obtained under case number 33492/2016. Furthermore, the perfection order does not make reference to money judgment.

[5] The writ of execution which is the subject of the dispute is addressed to deputy sheriff of the Pretoria North. It references a money judgment granted on 25 August 2017. The applicant contends that there was no money judgment on 25 August 2017 or any other date against the applicant under the aforementioned case number for an amount set out in the writ or any other amount.

[6] At the hearing of this application Mr. Williams, counsel for the applicant, conceded that the perfection order was not disputed. Mr. Nyangiwe, counsel for the first respondent also conceded that there was no money judgment.

[7] The first respondent contends that it has withdrawn the impugned writ and referred me to annexure "NEF3" of its opposing

affidavit. On closer inspection of "NEF3", it reveals that the notice of withdrawal of the writ of execution was issued under case number 35267/16. This is not writ of execution under case number 33492/16 which still remains disputed and in terms of which the applicant seeks to execute the perfection order.

[8] The issue for determination is therefore whether or not the respondent can rely on a writ of execution under case number 33492/16

which relates to money judgment of over R30 million to execute the perfection order.

[9] It is trite that a stay of execution will be granted where injustice would result should a stay be refused. (See Gois t/a Shakespear’s

Pub v Van Zyl & Others 2011 (1) SA 148 (LC) at para 32.)

[10] The considerations to be given for the principle set out above are, inter alia, the following:

10.1. A well-grounded apprehension that the execution is taking place at the instance of the respondent;

10.2. Irreparable harm will result if execution is not stayed and the applicant ultimately succeeds in establishing a clear right (in casu the success of the interlocutory applications);

10.3. The merits of the underlying dispute are irrelevant, and the court is only concerned with whether the causa (the lawfulness of the warrant) is in dispute. (See Gois t/a Shakespear’s Pub v Van Zyl & others supra)

[11] It is also trite that while the merits of the interlocutory applications are not relevant to the present application, the warrant

must be in strict conformity with the court’s order which issued the warrant (See Sachs v Katz 1955 (1) SA 67 (1) at 72 D-E)

[12] The concession made by Mr Nyangiwe that there is no money judgment was the correct one. The disputed writ relates to money judgment and it will therefore be illogical not to give an order for stay of execution in respect of that writ. The withdrawn writ of execution does not relate to the disputed writ.

[13] It follows therefore that the applicant has made out a case and should succeed.

ORDER

[14] The following order is made:

(A) The writ of execution dated 29 June 2018 out of this court under case number 33492/2016 is hereby suspended pending the final determination of the three interlocutory applications under case number 33492/2016 to set aside such writ of execution referred to herein.

(B) The first respondent is ordered to pay the costs hereof. No costs order is granted against the second to the forth respondents.

____________________

M.L. SENYATSI

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION,

JOHANNESBURG

Appearances:

Date of hearing: 8 January 2019

Date of Judgment: 25 January 2019

For the applicant: Advocate D.L Williams

Instructed by: GJJ Van der Merwe Attorneys

For first respondent: Advocate Nyangiwe

Instructed by: Nkadimeng Attorneys