Ndaba v Mhlambi (AR 267/10) [2011] ZAKZPHC 14 (4 April 2011)

Ndaba v Mhlambi (AR 267/10) [2011] ZAKZPHC 14 (4 April 2011)

The court held that the enforcement of a costs order, whether by writ of execution or Section 65 proceedings, does not constitute the prosecution of a new cause of action and is not subject to the defence of lis pendens. The original judgment settled the rights and obligations between the parties, and subsequent enforcement procedures are distinct from the original dispute. Section 65 E (4) does not preclude the institution of Section 65 proceedings after a writ has been issued; it only affects the entitlement to costs in connection with the warrant if a nulla bona return is made. The Magistrate was correct in dismissing the plea of lis pendens and in finding that the Durban Magistrates'...

Citation
[2011] ZAKZPHC 14
Parties
Appellant: Vincent Delani Ndaba; Respondent: Joseph Jamela Mhlambi
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
4 April 2011
Case Number
AR 267/10
Procedural Posture
Civil Appeal / Appeal From Magistrates' Court Decision
Outcome
Appeal dismissed with costs.
Judges
K. Swain, J. Ploos van Amstel
Legal Topics
Lis Pendens, Warrant of Execution, Section 65 Magistrates Court Act, Taxed Costs, Jurisdiction, Nulla Bona Return
Civil Procedure Lis Pendens Warrant of Execution Section 65 Magistrates Court Act Taxed Costs Jurisdiction Nulla Bona Return

Case Brief

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Parties

Vincent Delani Ndaba

Appellant

Joseph Jamela Mhlambi

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates' Court Decision

Legal Issues

  1. 1 Whether the pending warrant of execution in the Orange Free State High Court bars the respondent from recovering taxed costs via Section 65 M proceedings in the Durban Magistrates' Court.
  2. 2 Whether the plea of lis pendens precludes the respondent from instituting Section 65 A (1) proceedings in the Magistrates' Court.
  3. 3 Whether Section 65 E (4) of the Magistrates' Court Act prevents the respondent from instituting Section 65 proceedings after a writ has been issued.

Ratio Decidendi

The court held that the enforcement of a costs order, whether by writ of execution or Section 65 proceedings, does not constitute the prosecution of a new cause of action and is not subject to the defence of lis pendens. The original judgment settled the rights and obligations between the parties, and subsequent enforcement procedures are distinct from the original dispute. Section 65 E (4) does not preclude the institution of Section 65 proceedings after a writ has been issued; it only affects the entitlement to costs in connection with the warrant if a nulla bona return is made. The Magistrate was correct in dismissing the plea of lis pendens and in finding that the Durban Magistrates'...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the respondent's costs.