Mahon v Mahon and Others (14918/2008) [2009] ZAWCHC 106 (29 July 2009)

Mahon v Mahon and Others (14918/2008) [2009] ZAWCHC 106 (29 July 2009)

The court held that the right to execute a provisional sentence derives from the common law and is not precluded by Rule 8 or Rule 45. The history and practice of provisional sentence in South African law support the immediate execution of provisional sentence upon the provision of adequate security de restituendo. The applicant's argument that execution must wait until the provisional sentence becomes a final judgment is inconsistent with both the theory and practice of provisional sentence. The constitutional challenge based on section 34 was rejected, as the procedure is an extraordinary remedy with safeguards for defendants, including the requirement of security and the availability...

Citation
[2009] ZAWCHC 106
Parties
Applicant: Brian Robert Mahon; Respondent: Iola Mahon; Respondent: Minister of Justice and Constitutional Development; Respondent: Sheriff for the Magisterial District of Cape Town; Respondent: Registrar of the High Court of the Cape of Good Hope
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 July 2009
Case Number
14918/2008
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
HJ Erasmus
Legal Topics
Provisional Sentence, Writ of Execution, Security De Restituendo, Section 34 Right to Fair Hearing, Reading Down, Avoidance Principle
Civil Procedure Constitutional Law Provisional Sentence Writ of Execution Security De Restituendo Section 34 Right to Fair Hearing Reading Down Avoidance Principle

Case Brief

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Parties

Brian Robert Mahon

Applicant

Iola Mahon

Respondent

Minister of Justice and Constitutional Development

Respondent

Sheriff for the Magisterial District of Cape Town

Respondent

Registrar of the High Court of the Cape of Good Hope

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether Rule 8 of the Uniform Rules of Court permits execution of a provisional sentence before it becomes a final judgment.
  2. 2 Whether the writ of execution issued by the Registrar was lawful under the Rules and common law.
  3. 3 Whether Rule 8 is unconstitutional to the extent that it prevents defendants from entering the principal case without satisfying provisional sentence and taxed costs.

Ratio Decidendi

The court held that the right to execute a provisional sentence derives from the common law and is not precluded by Rule 8 or Rule 45. The history and practice of provisional sentence in South African law support the immediate execution of provisional sentence upon the provision of adequate security de restituendo. The applicant's argument that execution must wait until the provisional sentence becomes a final judgment is inconsistent with both the theory and practice of provisional sentence. The constitutional challenge based on section 34 was rejected, as the procedure is an extraordinary remedy with safeguards for defendants, including the requirement of security and the availability...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed.
  • The applicant must pay the costs of the first respondent, including the costs occasioned by the employment of two counsel.