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[2011] ZAGPPHC 177
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Nedbank Ltd v Phihlela, Nedbank Ltd v Phihlela (46832/10, 43433/10) [2011] ZAGPPHC 177 (1 September 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: 46832/10
Date:
2011-09-01
In
the application between:
Nedbank
Limited
.........................................................................................
Plaintiff/Respondent
and
Ngoanakgoro
Johannes
Phihlela
................................................................
Defendant/Applicant
And
in the application between:
Case
Number: 43433/10
Nedbank
Limited
..........................................................................................
Plaintiff/Respondent
And
Ngoanakgoro
Johannes
Phihlela
.................................................................
Defendant/Applicant
Judgment
Southwood
J
[1]
These are applications in terms of Rule 49(11) that the applicant be
permitted to execute the writs of execution on the summary
judgments
granted under case numbers 46832/10 and 43433/10 pending the
respondent's application for leave to appeal against the
judgment and
order dismissing the respondent's application to rescind the summary
judgments.
[2]
It is clear from the provisions of Rule 49(11) that the filing of the
notice of application for leave to appeal against the
judgment and
order dismissing the respondent's application for rescission of the
summary judgments does not have the effect of
suspending the summary
judgments granted for the return of the vehicles - see MV Snow Delta:
Seeva Ship Ltd v Discount Tonnage
Ltd
2000 (4) SA 476
(SCA) para 6;
SAB Lines (Pty) Ltd v Cape Tex Engineering Works (Pty) Ltd
1968 (2)
SA 535
(C) at 537C-F. These orders therefore still stand and the
applicant may execute upon them. The applicant is therefore entitled
to have the vehicles attached by the sheriff and returned to it. If
the respondent refuses to comply with these orders he will be
in
contempt of court as pointed out in the judgment refusing the
application for rescission. Any advice that the filing of the
notice
of application for leave to appeal suspends the operation of the
summary judgments is clearly wrong. The respondent is therefore
obliged to comply with these orders forthwith.
[3]
The applicant applies for an order calling upon the respondent to
show cause why he should not be committed for contempt of
court. It
seems to me that this is the only way that the respondent will be
brought to his senses. Prima facie the applicant has
shown that it
obtained orders against the respondent, the respondent is aware of
these orders and the respondent is deliberately
not complying with
the orders. In view of the urgency of the matter I am prepared to
grant the rules nisi requested by the applicant.
[4]
The applicant is entitled to the costs of these applications and such
costs should be taxed on the scale as between attorney
and client.
[5]
An order is made in terms of prayers 1, 1.1, 1.2 and 2 of the amended
draft order which is marked 'X'.
B.R.
SOUTHWOOD
JUDGE
OF THE HIGH COURT
CASE
NO: 46832/10 and 43433/10
HEARD
ON: 1 September 2011
FOR
THE APPLICANT: ADV. J.P. VAN DER BERG
INSTRUCTED
BY: Van Heerden's Inc.
FOR
THE RESPONDENT: ADV. TSHABUNGWA
INSTRUCTED
BY: Tumi Mokwena Inc.
DATE
OF JUDGMENT: 1 September 2011