Mgwenya and Another v NMI Durban South Motors (Pty) Ltd t/a Garden City Motors Mbombela and Another (525/2023) [2025] ZAMPMBHC 44 (30 May 2025)

Mgwenya and Another v NMI Durban South Motors (Pty) Ltd t/a Garden City Motors Mbombela and Another (525/2023) [2025] ZAMPMBHC 44 (30 May 2025)

The court found that the applicants had established a proper foundation for the contention that an injustice would result if execution of the cost order was not stayed pending the outcome of the main action. Although the applicants did not intend to challenge the taxed bill of costs, there was a possibility that the debt might be paid in full depending on the outcome of the main action. The court exercised its discretion under Rule 45A, noting that the decision must balance the interests of both parties and that related proceedings may have an ameliorating effect on the order sought to be executed. The court concluded that it would be in the interests of justice to grant a stay of...

Citation
[2025] ZAMPMBHC 44
Parties
Applicant: Zodwa Maria Mgwenya; Applicant: Ethel Mgwenya; Respondent: NMI Durban South Motors (Pty) Ltd t/a Garden City Motors Mbombela; Respondent: The Sheriff, Nelspruit
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
30 May 2025
Case Number
525/2023
Procedural Posture
Stay Application / Application for Stay of Execution Pending Finalisation of Main Action
Outcome
Application for stay of execution granted in part.
Judges
M R Moleleki
Legal Topics
Stay of Execution, Rei Vindicatio, Irreparable Harm, Court Discretion Under Rule 45a, Costs in the Cause
Civil Procedure Delict Stay of Execution Rei Vindicatio Irreparable Harm Court Discretion Under Rule 45a Costs in the Cause

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Parties

Zodwa Maria Mgwenya

Applicant

Ethel Mgwenya

Applicant

NMI Durban South Motors (Pty) Ltd t/a Garden City Motors Mbombela

Respondent

The Sheriff, Nelspruit

Respondent

Procedural Posture

Stay Application / Application for Stay of Execution Pending Finalisation of Main Action

Legal Issues

  1. 1 Whether the execution of the cost order should be stayed pending the finalisation of the main action.
  2. 2 Whether the applicant will suffer irreparable harm if execution proceeds before the main action is decided.
  3. 3 Whether the court should exercise its discretion under Rule 45A to suspend execution.

Ratio Decidendi

The court found that the applicants had established a proper foundation for the contention that an injustice would result if execution of the cost order was not stayed pending the outcome of the main action. Although the applicants did not intend to challenge the taxed bill of costs, there was a possibility that the debt might be paid in full depending on the outcome of the main action. The court exercised its discretion under Rule 45A, noting that the decision must balance the interests of both parties and that related proceedings may have an ameliorating effect on the order sought to be executed. The court concluded that it would be in the interests of justice to grant a stay of...

Court Disposition

Application for stay of execution granted in part.

Orders

  • The application for the suspension of execution of prayer 3 of the judgment of Gumede AJ, dated 15 December 2023, is granted insofar as it relates to the attachment by the First Respondent of the First Applicant’s right to an action launched in Case Number: 833/2023, pending the finalisation of the main case.
  • The costs of this application shall be costs in the cause.