West Dunes Properties 142 (Pty) Ltd v Subtinix (Pty) Ltd and Another (94789/2019) [2021] ZAGPPHC 869 (15 November 2021)

West Dunes Properties 142 (Pty) Ltd v Subtinix (Pty) Ltd and Another (94789/2019) [2021] ZAGPPHC 869 (15 November 2021)

The court held that section 18(1) and (3) of the Superior Courts Act does not empower it to grant relief that goes beyond the upliftment of the suspension of the operation and execution of the original order pending appeal. The applicant's request for an order compelling the respondents to pay funds into trust was...

Source-derived case information.

Citation
[2021] ZAGPPHC 869
Parties
Applicant: West Dunes Properties 142 (Pty) Ltd; Respondent: Subtinix (Pty) Ltd; Respondent: Hendrick Ramokgoto Morua
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 November 2021
Case Number
94789/2019
Procedural Posture
Urgent Application / Section 18(1) and (3) Application Following Judgment and Pending Leave to Appeal
Outcome
Application dismissed; each party to pay its own costs; conduct of respondents' legal representatives referred to the Legal Practice Council for investigation.
Judges
E van der Schyff
Legal Topics
Section 18 Application, Suspension of Execution, Trust Account Funds, Variation of Court Order
Civil Procedure Commercial and Corporate Section 18 Application Suspension of Execution Trust Account Funds Variation of Court Order

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Parties

West Dunes Properties 142 (Pty) Ltd

Applicant

Subtinix (Pty) Ltd

Respondent

Hendrick Ramokgoto Morua

Respondent

Procedural Posture

Urgent Application / Section 18(1) and (3) Application Following Judgment and Pending Leave to Appeal

Legal Issues

  1. 1 Whether section 18(1) and (3) of the Superior Courts Act permits the court to order payment of funds into trust pending appeal when the original order cannot be enforced.
  2. 2 Whether the applicant is entitled to alternative relief beyond the upliftment of suspension of the original order under section 18.
  3. 3 Whether the conduct of the respondents' attorneys in paying out funds contrary to undertakings constitutes a breach of ethical duty.

Ratio Decidendi

The court held that section 18(1) and (3) of the Superior Courts Act does not empower it to grant relief that goes beyond the upliftment of the suspension of the operation and execution of the original order pending appeal. The applicant's request for an order compelling the respondents to pay funds into trust was not competent under section 18, as it sought to create a new obligation rather than enforce the existing order. The court noted that, had it been aware of the prior payment of funds, it might have granted a different order, but it was now restrained from varying the order due to the pending appeal. The conduct of the respondents' attorneys in failing to disclose the payment of...

Court Disposition

Application dismissed; each party to pay its own costs; conduct of respondents' legal representatives referred to the Legal Practice Council for investigation.

Orders

  • The application is dismissed.
  • Each party is liable for their own costs.