Minister of Justice And Costitutional Development v Herman and Another (67151/2013) [2013] ZAGPPHC 378 (19 December 2013)

Minister of Justice And Costitutional Development v Herman and Another (67151/2013) [2013] ZAGPPHC 378 (19 December 2013)

The court found that there were no prospects of success in the respondent's intended appeal, as previously determined in the judgment dismissing leave to appeal. The prejudice claimed by the respondent, namely loss of income, could be remedied by reinstatement and a claim for lost income should he succeed on appeal,...

Source-derived case information.

Citation
[2013] ZAGPPHC 378
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 Appeal / Application for Leave to Execute Judgment Under Rule 49(11) After Dismissal of Leave to Appeal
Outcome
Leave to execute the judgment is granted. Costs awarded to the applicant, excluding 20% of costs relating to the replying affidavit.
Judges
S P Mothle
Legal Topics
Leave to Execute Judgment, Sheriff Removal, Rule 49 11, Costs Award
Civil Procedure Administrative Law Leave to Execute Judgment Sheriff Removal Rule 49 11 Costs Award

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Parties

Minister of Justice and Constitutional Development

Applicant

John Herman

Respondent

Nkwadi Simon Maremane

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the suspension of the execution of the judgment should be uplifted under Rule 49(11).
  2. 2 Whether the applicant is entitled to execute the judgment pending finalisation of the respondent's application for leave to appeal.
  3. 3 Whether the respondent will suffer prejudice if leave to execute is granted.

Ratio Decidendi

The court found that there were no prospects of success in the respondent's intended appeal, as previously determined in the judgment dismissing leave to appeal. The prejudice claimed by the respondent, namely loss of income, could be remedied by reinstatement and a claim for lost income should he succeed on appeal, making the provision of security unnecessary. The prejudice to the government from further delay was considered greater. The court held that it was just and equitable to grant leave to execute the judgment. Regarding costs, the court found that the applicant improperly introduced new matter in the replying affidavit and that a punitive costs order was not justified. Costs were...

Court Disposition

Leave to execute the judgment is granted. Costs awarded to the applicant, excluding 20% of costs relating to the replying affidavit.

Orders

  • Prayer 1 of the order granted by the Honourable Mr Justice Mothle on 6 November 2013 under case number 6751/2013 shall not be suspended pending the finalisation of the First Respondent’s application for leave to appeal against the judgment.
  • Pending the 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.