Stratford and Another v Stone and Others (1163/11) [2011] ZAWCHC 72 (15 March 2011)

Stratford and Another v Stone and Others (1163/11) [2011] ZAWCHC 72 (15 March 2011)

The court found that although Stratford signed the settlement agreement as surety and co-principal debtor, he was not a party to the arbitration proceedings nor cited in the application to make the award an order of court. Clause 11 of the settlement agreement merely recorded his suretyship and did not create a direct judgment against him. The contract of suretyship is accessory and does not render Stratford directly liable under the court order. Therefore, the writs of execution issued against him were invalid, and the respondents were not entitled to proceed directly to execution without instituting separate action against him.

Citation
[2011] ZAWCHC 72
Parties
Applicant: Ivor Charles Stratford; Applicant: Sheila Margaret Stratford; Respondent: Ashley Wayne Stone; Respondent: Ashley Wayne Stone, N.O.; Respondent: Brent Stuart N.O.; Respondent: Charles Stuart Mackay-Davidson, N.O.; Respondent: The Sheriff of the High Court, Wynberg North
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 March 2011
Case Number
1163/11
Procedural Posture
Urgent Application / Application to Set Aside Writs of Execution
Outcome
Application granted; writs of execution set aside; attached property to be released; costs awarded against first to fourth respondents.
Judges
JHM Traverso
Legal Topics
Writ of Execution, Suretyship, Arbitral Award Enforcement, Settlement Agreement
Civil Procedure Commercial and Corporate Writ of Execution Suretyship Arbitral Award Enforcement Settlement Agreement

Case Brief

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Parties

Ivor Charles Stratford

Applicant

Sheila Margaret Stratford

Applicant

Ashley Wayne Stone

Respondent

Ashley Wayne Stone, N.O.

Respondent

Brent Stuart N.O.

Respondent

Charles Stuart Mackay-Davidson, N.O.

Respondent

The Sheriff of the High Court, Wynberg North

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Writs of Execution

Legal Issues

  1. 1 Whether writs of execution issued against the applicants were valid and enforceable.
  2. 2 Whether Stratford was bound by the arbitral award and subsequent court order despite not being a cited party to the arbitration.
  3. 3 Whether the respondents were entitled to proceed directly to execution against Stratford without instituting separate action.

Ratio Decidendi

The court found that although Stratford signed the settlement agreement as surety and co-principal debtor, he was not a party to the arbitration proceedings nor cited in the application to make the award an order of court. Clause 11 of the settlement agreement merely recorded his suretyship and did not create a direct judgment against him. The contract of suretyship is accessory and does not render Stratford directly liable under the court order. Therefore, the writs of execution issued against him were invalid, and the respondents were not entitled to proceed directly to execution without instituting separate action against him.

Court Disposition

Application granted; writs of execution set aside; attached property to be released; costs awarded against first to fourth respondents.

Orders

  • The warrants of execution issued by this Court on 17 November 2010 and 1 December 2010 against the first applicant under Case Number 23604/2009 are hereby set aside.
  • All the property of the applicants attached pursuant to the aforesaid warrants must be released forthwith by the Sheriff.