Tshiya Infrastructure Development (Pty) Ltd and Another v Standard Bank of SA Ltd and Another (5175/2017) [2017] ZAFSHC 228 (9 November 2017)

Tshiya Infrastructure Development (Pty) Ltd and Another v Standard Bank of SA Ltd and Another (5175/2017) [2017] ZAFSHC 228 (9 November 2017)

The applicants do not challenge the validity of the default judgment or the underlying causa, nor do they seek rescission or reinstatement of the agreements. The instalment sale agreements have been cancelled, and the vehicles belong to the first respondent. The applicants' concerns about the sale price and potential loss of a tender do not constitute sufficient grounds for a stay of execution, as the respondent is entitled to enforce its judgment and mitigate damages. The court must balance the rights of both parties, and in these circumstances, it is neither just nor equitable to grant a stay or suspension of execution.

Citation
[2017] ZAFSHC 228
Parties
Applicant: Tshiya Infrastructure Development (Pty) Ltd; Applicant: Thabiso Johannes Khofu; Respondent: Standard Bank of SA Ltd; Respondent: Sheriff of District of Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 November 2017
Case Number
5175/2017
Procedural Posture
Stay Application / Application for Stay of Execution After Default Judgment
Outcome
Application dismissed with costs.
Judges
Molitsoane
Legal Topics
Stay of Execution, Instalment Sale Agreement, Default Judgment, Suretyship
Civil Procedure Banking and Finance Stay of Execution Instalment Sale Agreement Default Judgment Suretyship

Case Brief

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Parties

Tshiya Infrastructure Development (Pty) Ltd

Applicant

Thabiso Johannes Khofu

Applicant

Standard Bank of SA Ltd

Respondent

Sheriff of District of Bloemfontein

Respondent

Procedural Posture

Stay Application / Application for Stay of Execution After Default Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to a stay of execution of the sale of attached vehicles after default judgment.
  2. 2 Whether the applicants have established real and substantial injustice warranting a stay of execution.
  3. 3 Whether the applicants' failure to attack the underlying causa or seek rescission affects entitlement to relief.

Ratio Decidendi

The applicants do not challenge the validity of the default judgment or the underlying causa, nor do they seek rescission or reinstatement of the agreements. The instalment sale agreements have been cancelled, and the vehicles belong to the first respondent. The applicants' concerns about the sale price and potential loss of a tender do not constitute sufficient grounds for a stay of execution, as the respondent is entitled to enforce its judgment and mitigate damages. The court must balance the rights of both parties, and in these circumstances, it is neither just nor equitable to grant a stay or suspension of execution.

Court Disposition

Application dismissed with costs.

Orders

  • The application for stay of execution is dismissed with costs.