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[2014] ZAGPPHC 234
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Kwinana and Associates (Gauteng) Inc. v Forensic Institution (Pty) Ltd and Another (10069/10) [2014] ZAGPPHC 234 (23 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 10069/10
Date:
23 April 2014
Not
reportable
Not
of interest to other judges
In
the matter between:
KWINANA
AND ASSOCIATES (GAUTENG)
INC.
................................................
Applicant
And
FORENSIC
INSTITUTION (PTY) LTD
….................................................
First Respondent
SHERIFF
PRETORIA EAST
….............................................................
Second Respondent
JUDGMENT
BAM
J
1.
The applicant, on an urgent basis,
applied for an order setting aside the writ of execution under case
number 10069/2010 pending
the outcome of the appeal set down for 15
October 2014. The application is opposed by the first respondent.
2.
The applicant's case is based on the
allegation that the said writ of execution was unlawfully issued in
that the appeal against
the judgment dated 3 September 2010 in terms
of which the said writ had been issued, is still pending.
3.
The salient facts are the following:
(i)
On 3 September 2010 judgment was granted
by Ranchod J against the applicant in the amount of R819 218,25 in
favour of the first
respondent;
(ii)
Leave to appeal was granted on 26
November 2010;
(iii)
On 11 April 2011 the applicant applied
for date to be allocated for the hearing of the appeal. Subsequently,
about a year later,
the Registrar allocated the date of 15 October
2014.
(iv)
The first respondent then instituted
action against the applicant for payment of R1 628 285,37 for
professional services rendered.
(v)
The latter action proceeded to trial,
and on 29 November 2012 Kubushi J, under case number 10069/2010
delivered her judgment.
(vi)
In the judgment, (par [3], Khubushi J
referred to the judgment of Ranchod J and remarked that the matter
came before her on the
same cause of action as well
as
the same amount. Ranchod J, however, only granted an order in the
amount referred to in (i) above.
(vii)
Kubushi J further stated, (par
[6), that she was informed by the parties that despite leave to
appeal having been granted by Ranchod
J, the parties "agreed
that the appeal proceedings be discontinued and the whole matter,
including the claims decided by Ranchod
J, be referred to the trial
court for determination."
(viii)
In pars [7] to [10] of the judgment,
Khubushi J found that the procedure followed by the parties was
"improper" and that
the judgment of Ranchod J could only be
set aside on appeal.
4.
On 10 March 2014 the first respondent
issued a writ of execution, reflecting the balance of R246 591,66, on
the first respondent's
version (page 45 par 17), "due in terms
of the motion court judgment/' (That is the judgment of Ranchod J.)
5.
It was the first respondent's case (par
45 of the answering affidavit), that the applicant has abandoned the
appeal against the
judgment of Ranchod J in the motion court and that
the applicant failed to prosecute its appeal, which has now lapsed.
6.
I am in respectful agreement with
Kubushi J that the procedure followed by the parties to agree that
the proceedings before Ranchod
J should be discontinued is wrong in
law.The appeal against the judgment of Ranchod J was clearly not
withdrawn or abandoned and
is therefore still pending.
7.
It follows that the writ of execution
issued on the judgment of Ranchod J, albeit for a lesser amount, is
suspended pending the
outcome of the appeal.
8.
In my view the application is indeed
urgent, and the applicant is entitled to the relief sought, that is
to suspend the writ of
execution and costs.
9.
Order made on 15 April 2014.
A
J BAM JUDGE OF THE HIGH COURT
22
April 2014