Minister of Justice And Constitutional Development v Herman and Another (67151/2013) [2013] ZAGPPHC 485 (19 December 2013)

Minister of Justice And Constitutional Development v Herman and Another (67151/2013) [2013] ZAGPPHC 485 (19 December 2013)

The court found that there were no prospects of success in Herman's intended appeal, as previously determined in the judgment dismissing leave to appeal. The prejudice claimed by Herman, namely loss of income, could be remedied by reinstatement and a claim for lost income if he succeeded on appeal, making security unnecessary. The prejudice to the government from delay was more significant. The introduction of new matter in the replying affidavit by the Minister was improper, but did not justify a punitive costs order. The court concluded that it was just and equitable to grant leave to execute the judgment order and awarded costs against Herman, excluding 20% of costs related to the...

Citation
[2013] ZAGPPHC 485
Parties
Applicant: Minister of Justice and Constitutional Development; Respondent: John Herman; Respondent: Nkwadi Simon Maremane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 December 2013
Case Number
67151/2013
Procedural Posture
Leave to Execute / Application for Leave to Execute Judgment Order Under Rule 49(11) Following Dismissal of Leave to Appeal.
Outcome
Leave to execute the judgment order is granted. Costs awarded against the First Respondent, excluding 20% of costs related to the replying affidavit.
Judges
S P Mothle
Legal Topics
Leave to Execute, Rule 49 11, Sheriff Removal, Costs Award
Civil Procedure Leave to Execute Rule 49 11 Sheriff Removal Costs Award

Case Brief

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Parties

Minister of Justice and Constitutional Development

Applicant

John Herman

Respondent

Nkwadi Simon Maremane

Respondent

Procedural Posture

Leave to Execute / Application for Leave to Execute Judgment Order Under Rule 49(11) Following Dismissal of Leave to Appeal.

Legal Issues

  1. 1 Whether the suspension of the execution of the judgment should be lifted under Rule 49(11).
  2. 2 Whether the applicant is entitled to execute the judgment order pending appeal.
  3. 3 Whether the respondent will suffer prejudice if execution is granted.

Ratio Decidendi

The court found that there were no prospects of success in Herman's intended appeal, as previously determined in the judgment dismissing leave to appeal. The prejudice claimed by Herman, namely loss of income, could be remedied by reinstatement and a claim for lost income if he succeeded on appeal, making security unnecessary. The prejudice to the government from delay was more significant. The introduction of new matter in the replying affidavit by the Minister was improper, but did not justify a punitive costs order. The court concluded that it was just and equitable to grant leave to execute the judgment order and awarded costs against Herman, excluding 20% of costs related to the...

Court Disposition

Leave to execute the judgment order is granted. Costs awarded against the First Respondent, excluding 20% of costs related to the replying affidavit.

Orders

  • Prayer 1 of the order granted on 6 November 2013 under case number 67151/2013 shall not be suspended pending finalisation of the First Respondent's application for leave to appeal.
  • Pending finalisation of the First Respondent's application for leave to appeal or the appeal itself, the Applicant is granted leave to execute prayer 1 of the order.