Kwinana and Associates (Gauteng) Inc. v Forensic Institution (Pty) Ltd and Another (10069/10) [2014] ZAGPPHC 234 (23 April 2014)
The court found that the appeal against the judgment of Ranchod J had not been withdrawn or abandoned and was therefore still pending. The agreement between the parties to discontinue the proceedings before Ranchod J and refer the matter to trial was improper and did not have the effect of terminating the appeal....
Source-derived case information.
- Citation
- [2014] ZAGPPHC 234
- Parties
- Applicant: Kwinana and Associates (Gauteng) Inc.; Respondent: Forensic Institution (Pty) Ltd; Respondent: Sheriff Pretoria East
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 10069/10
- Procedural Posture
- Urgent Application / Application to Set Aside Writ of Execution Pending Appeal
- Outcome
- Application granted; writ of execution suspended pending outcome of appeal.
- Judges
- BAM
- Legal Topics
- Stay of Execution, Pending Appeal, Writ of Execution, Abandonment of Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kwinana and Associates (Gauteng) Inc.
Applicant
Forensic Institution (Pty) Ltd
Respondent
Sheriff Pretoria East
Respondent
Procedural Posture
Urgent Application / Application to Set Aside Writ of Execution Pending Appeal
Legal Issues
- 1 Whether the writ of execution issued on the judgment of Ranchod J should be suspended pending the outcome of the appeal.
- 2 Whether the applicant has abandoned or failed to prosecute the appeal, resulting in its lapse.
- 3 Whether the procedure followed by the parties to discontinue the proceedings before Ranchod J was lawful.
Ratio Decidendi
The court found that the appeal against the judgment of Ranchod J had not been withdrawn or abandoned and was therefore still pending. The agreement between the parties to discontinue the proceedings before Ranchod J and refer the matter to trial was improper and did not have the effect of terminating the appeal. Consequently, the writ of execution issued on the judgment of Ranchod J must be suspended pending the outcome of the appeal. The application was urgent, and the applicant was entitled to relief suspending the writ and costs.
Court Disposition
Application granted; writ of execution suspended pending outcome of appeal.
Orders
- The writ of execution issued on the judgment of Ranchod J is suspended pending the outcome of the appeal.
- The applicant is awarded costs.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 10069/10
Date: 23 April 2014
Not reportable
Not of interest to other judges
In the matter between:
KWINANA AND ASSOCIATES (GAUTENG) INC................................................. Applicant
And
FORENSIC INSTITUTION (PTY) LTD …................................................. First Respondent
SHERIFF PRETORIA EAST …............................................................. Second Respondent
JUDGMENT
BAM J
1. The applicant, on an urgent basis, applied for an order setting aside the writ of execution under case number 10069/2010 pending the outcome of the appeal set down for 15 October 2014. The application is opposed by the first respondent.
2. The applicant's case is based on the allegation that the said writ of execution was unlawfully issued in that the appeal against the judgment dated 3 September 2010 in terms of which the said writ had been issued, is still pending.
3. The salient facts are the following:
(i) On 3 September 2010 judgment was granted by Ranchod J against the applicant in the amount of R819 218,25 in favour of the first respondent;
(ii) Leave to appeal was granted on 26 November 2010;
(iii) On 11 April 2011 the applicant applied for date to be allocated for the hearing of the appeal. Subsequently, about a year later, the Registrar allocated the date of 15 October 2014.
(iv) The first respondent then instituted action against the applicant for payment of R1 628 285,37 for professional services rendered.
(v) The latter action proceeded to trial, and on 29 November 2012 Kubushi J, under case number 10069/2010 delivered her judgment.
(vi) In the judgment, (par [3], Khubushi J referred to the judgment of Ranchod J and remarked that the matter came before her on the same cause of action as well as the same amount. Ranchod J, however, only granted an order in the amount referred to in (i) above.
(vii) Kubushi J further stated, (par [6), that she was informed by the parties that despite leave to appeal having been granted by Ranchod J, the parties "agreed that the appeal proceedings be discontinued and the whole matter, including the claims decided by Ranchod J, be referred to the trial court for determination."
(viii) In pars [7] to [10] of the judgment, Khubushi J found that the procedure followed by the parties was "improper" and that the judgment of Ranchod J could only be set aside on appeal.
4. On 10 March 2014 the first respondent issued a writ of execution, reflecting the balance of R246 591,66, on the first respondent's version (page 45 par 17), "due in terms of the motion court judgment/' (That is the judgment of Ranchod J.)
5. It was the first respondent's case (par 45 of the answering affidavit), that the applicant has abandoned the appeal against the judgment of Ranchod J in the motion court and that the applicant failed to prosecute its appeal, which has now lapsed.
6. I am in respectful agreement with Kubushi J that the procedure followed by the parties to agree that the proceedings before Ranchod J should be discontinued is wrong in law.The appeal against the judgment of Ranchod J was clearly not withdrawn or abandoned and is therefore still pending.
7. It follows that the writ of execution issued on the judgment of Ranchod J, albeit for a lesser amount, is suspended pending the outcome of the appeal.
8. In my view the application is indeed urgent, and the applicant is entitled to the relief sought, that is to suspend the writ of execution and costs.
9. Order made on 15 April 2014.
A J BAM JUDGE OF THE HIGH COURT
22 April 2014