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2024
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[2024] ZALMPPHC 140
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Independent Development Trust v Bakone Pride (Pty) Ltd and Another (6740/2024) [2024] ZALMPPHC 140 (14 October 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 6740/2024
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE
14/10/2024
SIGNATURE
In
the matter between:
INDEPENDENT
DEVELOPMENT TRUST
Applicant
and
BAKONE
PRIDE (PTY) LTD
First Respondent
JNM
CONSTRUCTION (PTY) LTD
Second Respondent
JUDGEMENT
Gaisa
AJ
INTRODUCTION
[1]
This is an urgent application, Part A,
brought by the Independent Development Trust (IDT) seeking to stay
the execution of an order
granted against it on 3 September 2024
under case number 6740/2024. The order in question was granted in
favour of the respondents
in the applicant's absence. The applicant
also seeks rescission of that order in Part B of this application.
[2]
The matter concerns a dispute arising from
a construction contract for the Seleteng Community Library project.
The respondents obtained
a default judgment against the applicant for
payment of R2,309,113.16. The applicant contends that this amount is
not fully due
and payable, and that it has a
bona
fide
defence to the claim.
URGENCY
[3]
The applicant has made out a case for
urgency. There is a real risk that the respondents may proceed to
execute the order imminently,
given their refusal to grant an
indulgence to suspend execution. If execution proceeds, a substantial
amount of public funds may
be paid out prematurely, which the
applicant argues may not be recoverable if it succeeds in its
rescission application. The potential
prejudice to the public purse
justifies hearing this matter on an urgent basis.
LEGAL FRAMEWORK FOR
STAY OF EXECUTION
[4]
Rule
45A of the Uniform Rules of Court allows the court to suspend the
operation and execution of any order for such period as it
deems fit.
As stated in
Stoffberg
N.O and Another v Capital Harvest (Pty) Ltd
[1]
this rule is a restatement of the courts' common law discretionary
power to regulate its own process. The guiding principle is
that
execution will be suspended where real and substantial justice
requires it.
[5]
The basic principles for granting a stay of
execution, as outlined in many cases before the courts are:
5.1.
a court will grant a stay where real and
substantial justice requires it or where injustice would otherwise
result.
5.2.
the court will be guided by factors usually
applicable to interim interdicts.
5.3.
the applicant must show a well-grounded
apprehension of execution and that irreparable harm will result if
execution is not stayed.
5.4.
irreparable harm will usually result if
there's a possibility the underlying causa may be removed.
[6]
Furthermore,
as stated in
Van
Rensburg NO and Another v Naidoo NO and Others, Naidoo NO and Others
v Van Rensburg NO and Others
:
[2]
“
[51]
Apart from the provisions of Uniform rule 45A a court has inherent
jurisdiction, in appropriate circumstances, to order a stay
of
execution or to suspend an order. It might, for example, stay a sale
in execution or suspend an ejectment order. Such discretion
must be
exercised judicially. As a general rule, a court will only do so
where injustice will otherwise ensue.”
ANALYSIS
[7]
Applying these principles to the present
case, I find that the applicant has demonstrated sufficient grounds
for a stay of execution:
[8]
Prima facie right
:
8.1.
The applicant has shown a
prima
facie
right by demonstrating reasonable
prospects of success in its rescission application. It has provided a
plausible explanation for
its default, namely that it was engaging
with the respondents on potential settlement and had filed an
answering affidavit, albeit
late due to a diarising error.
8.2.
More importantly, the applicant has raised
potentially meritorious defences to the respondents' claim, including
disputes over the
amounts claimed and work allegedly not approved by
the client department.
[9]
Irreparable harm
:
The applicant faces a
real risk of irreparable harm if the stay is not granted. A
substantial amount of public funds (over R700,000)
is in dispute. If
this amount is paid out and the applicant later succeeds in its
rescission application and defence of the main
claim, it may not be
recoverable. This potential loss of public funds constitutes
irreparable harm.
[10]
Balance of convenience
:
The balance of
convenience favours granting the stay. While the respondents have an
interest in prompt payment for work allegedly
completed, this must be
weighed against the public interest in ensuring proper adjudication
of claims involving state funds. The
prejudice to the respondents in
a temporary delay in payment is outweighed by the potential prejudice
to the public purse if funds
are paid out prematurely and later found
not to be due and cannot be recovered.
[11]
No alternative remedy
:
The applicant has no
other satisfactory remedy. A mere application for rescission does not
automatically stay execution of the order.
Without a stay, the
applicant would be compelled to pay out funds that may later be found
not to be due, with no guarantee of recovery.
[12]
While it is not necessary to determine the
merits of the rescission application conclusively at this stage, I am
satisfied that
the applicant has shown reasonable prospects of
success. The explanation for the default appears to be reasonable,
and the defences
raised do not appear, at this stage, to be frivolous
or vexatious.
[13]
The disputes over the amounts claimed and
work allegedly not approved raise complex factual issues that
arguably should not have
been determined on motion proceedings.
CONCLUSION
[14]
Having regard to all the circumstances, I
am satisfied that it is in the interests of justice to grant the stay
of execution pending
the hearing of the rescission application. This
will preserve the
status quo
and prevent potentially irrecoverable public funds from being paid
out prematurely, while still allowing for the full merits of
the
dispute to be properly adjudicated.
ORDER
1.
This application is enrolled and heard as an urgent application in
terms of Rule 6(12) and the ordinary
prescribed time limits, forms,
and services provided in the Rules are dispensed with.
2.
Pending the final determination of PART B of this application:
2.1
The execution of the order granted on 3 September 2024 under case
number 6740/2024 is hereby stayed.
3.
The costs of this application are reserved for determination in the
rescission application.
N. GAISA
ACTING JUDGE OF THE
HIGH COURT,
POLOKWANE; LIMPOPO
DIVISION
APPEARANCES
FOR THE
APPLICANTS
: Adv. Mampa
EMAIL
:
adv.mampa@gmail.com
:
Mmakola Matsimela Attorneys
:
solly@mmakolamatsimela.co.za
FOR THE
RESPONDENTS
: Adv.Goosen
EMAIL
:
: C
de Villiers Attorneys
:
caroline@cdvlaw.co.za
:
Du Toit Swanepoel Steyn & Spruyt Attorneys
:
ina@dtsss.co.za
DATE OF
HEARING : 26 September
2024
DATE OF JUDGEMENT :
14 October 2024
This
judgment is handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 14 OCTOBER 2024.
[1]
(21302021)
[2021] ZAWCHC 37
(2 March 2021)
[2]
(155/09,
455/09)
[2010] ZASCA 68
;
[2010] 4 All SA 398
(SCA) ;
2011 (4) SA 149
(SCA) (26 May 2010)