Nedbank Ltd v Phihlela, Nedbank Ltd v Phihlela (46832/10, 43433/10) [2011] ZAGPPHC 177 (1 September 2011)

Nedbank Ltd v Phihlela, Nedbank Ltd v Phihlela (46832/10, 43433/10) [2011] ZAGPPHC 177 (1 September 2011)

The court held that the filing of an application for leave to appeal does not suspend the operation of the summary judgments granted for the return of vehicles. The applicant is entitled to execute the writs of execution and have the vehicles attached and returned. The respondent's refusal to comply with the orders constitutes contempt of court. The only way to ensure compliance is to grant the rules nisi as requested by the applicant, calling upon the respondent to show cause why he should not be committed for contempt. Costs are awarded to the applicant on an attorney and client scale.

Citation
[2011] ZAGPPHC 177
Parties
Plaintiff: Nedbank Limited; Defendant: Ngoanakgoro Johannes Phihlela
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 September 2011
Case Number
46832/10, 43433/10
Procedural Posture
Urgent Application / Application for Execution Pending Leave to Appeal
Outcome
Application granted. Orders made in terms of prayers 1, 1.1, 1.2 and 2 of the amended draft order marked 'X'. Costs awarded to the applicant on an attorney and client scale.
Judges
Southwood
Legal Topics
Rule 49 11, Summary Judgment, Contempt of Court, Execution of Judgment
Civil Procedure Rule 49 11 Summary Judgment Contempt of Court Execution of Judgment

Case Brief

Summary, issues, holding and outcome

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Parties

Nedbank Limited

Plaintiff

Ngoanakgoro Johannes Phihlela

Defendant

Procedural Posture

Urgent Application / Application for Execution Pending Leave to Appeal

Legal Issues

  1. 1 Whether the filing of an application for leave to appeal suspends the operation of summary judgments granted for the return of vehicles.
  2. 2 Whether the applicant is entitled to execute the writs of execution pending the respondent's application for leave to appeal.
  3. 3 Whether the respondent's non-compliance constitutes contempt of court.

Ratio Decidendi

The court held that the filing of an application for leave to appeal does not suspend the operation of the summary judgments granted for the return of vehicles. The applicant is entitled to execute the writs of execution and have the vehicles attached and returned. The respondent's refusal to comply with the orders constitutes contempt of court. The only way to ensure compliance is to grant the rules nisi as requested by the applicant, calling upon the respondent to show cause why he should not be committed for contempt. Costs are awarded to the applicant on an attorney and client scale.

Court Disposition

Application granted. Orders made in terms of prayers 1, 1.1, 1.2 and 2 of the amended draft order marked 'X'. Costs awarded to the applicant on an attorney and client scale.

Orders

  • The applicant is permitted to execute the writs of execution on the summary judgments pending the respondent's application for leave to appeal.
  • The respondent is called upon to show cause why he should not be committed for contempt of court.