North-West Development Corporation (NWDC) v Mohlahlo and Another (J1827-18) [2018] ZALCJHB 205 (7 June 2018)
The court held that it is not competent to allow execution against property to proceed while a rescission application is pending, as this would undermine the effectiveness of the rescission proceedings and potentially render them academic. The dismissal of the stay application would deprive the court seized with the...
Source-derived case information.
- Citation
- [2018] ZALCJHB 205
- Parties
- Applicant: North-West Development Corporation (NWDC); Respondent: Abiel Mohlahlo; Respondent: Sheriff of Mahikeng, Mr H.C. Ackerman (N.O.)
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J1827-18
- Procedural Posture
- Stay Application / Interlocutory Application for Stay of Execution Pending Rescission Proceedings
- Outcome
- Application for stay of execution granted; costs awarded against the applicant.
- Judges
- B Whitcher
- Legal Topics
- Stay of Execution, Rescission of Judgment, Costs Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
North-West Development Corporation (NWDC)
Applicant
Abiel Mohlahlo
Respondent
Sheriff of Mahikeng, Mr H.C. Ackerman (N.O.)
Respondent
Procedural Posture
Stay Application / Interlocutory Application for Stay of Execution Pending Rescission Proceedings
Legal Issues
- 1 Whether execution proceedings should be stayed pending the outcome of a rescission application.
- 2 Whether the applicant has provided sufficient security for the stay of execution.
- 3 Whether costs should be awarded against the applicant.
Ratio Decidendi
The court held that it is not competent to allow execution against property to proceed while a rescission application is pending, as this would undermine the effectiveness of the rescission proceedings and potentially render them academic. The dismissal of the stay application would deprive the court seized with the rescission application of its powers and leave no live dispute between the parties. The applicant had provided sufficient security, and the sale in execution scheduled for 6 June 2018 was suspended. However, given the history of the matter, the applicant was ordered to pay the first respondent's costs occasioned by the application.
Court Disposition
Application for stay of execution granted; costs awarded against the applicant.
Orders
- The bond of security put up on 18 April 2018 and the new bond filed with this application is sufficient.
- Pending finalisation of the rescission / declaratory application currently pending before this court, further execution proceedings, including the sale in execution scheduled for 6 June 2018, are suspended and stayed.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: J 1827-18
Not Reportable
In the matter between:
NORTH-WEST DEVELOPMENT CORPORATION (NWDC) Applicant
and
ABIEL MOHLAHLO First Respondent
SHERIFF OF MAHIKENG
MR H.C. ACKERMAN (N.O.) Second Respondent
Heard: 5 June 2018
Order delivered: 6 June 2018
Reasons for Order: 7 June 2018
JUDGMENT
WHITCHER J
[1] On 6 June 2018 I delivered the following order:-
1. The bond of security put up on 18 April 2018 and the new bond filed with this application is sufficient.
2. Pending finalisation of the rescission / declaratory application that is currently pending before this court, it is hereby ordered that:-
2.1 Further execution proceedings, including the sale in execution scheduled for 6 June 2018 is hereby suspended and stayed.
2.2 Applicant to pay First Respondent’s costs occasioned by this application.
2.3 Reasons for this order will be delivered later this week.
[2] I granted the Order because in my view it is not competent to allow execution against property to be carried out in light of a pending application for rescission of judgment upon which the warrant of execution is based.
[3] I am of the view that the dismissal of this application will render the pending application for rescission of judgment to be of no force or effect. I would also be usurping the court, of its powers, that may be seized with the application for rescission of judgment if I were to exercise my discretion against the Applicant in that, by refusing this application, I would directly be rendering the application for rescission worthless, which I am not empowered to do in these proceedings. The court dealing with the application for rescission would be merely called upon to pronounce upon abstract or academic issues as there will no longer be any issues between the parties (Coin Security Group (Pty) Ltd v SA National Union for Security Officers 2001(2) SA 872 (SCA) at 875A-D; Port Elizabeth Municipality v Smith 2002 (4) SA 241 (SCA) at 246I-247A).
[4] However, though I have granted the application, I nonetheless feel that, considering the history of this matter, the Applicant should pay the First Respondent’s costs occasioned by this application.
________________________________
B Whitcher
Judge of the Labour Court of South Africa
Appearances:
For the applicant
Instructed by
For the respondent