IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MBOMBELA
CASE NO: 525/2023
In the application between:
ZODWA MARIA MGWENYA FIRST APPLICANT
ETHEL MGWENYA SECOND APPLICANT
and
NMI DURBAN SOUTH MOTORS (PTY) LTD
t/a GARDEN CITY MOTORS MBOMBELA FIRST RESPONDENT
THE SHERIFF, NELSPRUIT SECOND RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by email. The date and time for hand -down is deemed to be
11:00 on 30 May 2025.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/ NO
30 May 2025 ____ ________________________
DATE SIGNATURE
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JUDGMENT
Moleleki AJ
[1] This is an application to stay the execution of prayer 3 of the judgment and
order dated 15 December 2023 pending the finalisation of an action against the First
Respondent under Case Number: 833/2023 and that costs be paid in the event of
opposition of this application.
[2] The application is opposed by the First Respondent.
Common cause facts
[3] Facts relevant to these proceedings are as follows: On 15 July 2022 the First
Applicant’s motor vehicle , a 2018 Mercedez Benz C200, was delivered to the First
Respondent’ workshop for repairs. Later that same day, the First Applicant was
informed that the motor vehicle was hijacked whilst one of the First Respondent’s
employees was test -driving it. As a result, the First Applicant was offered a courtesy
car by the First Respondent pending investigation. Following the investigation, the
First Respondent concluded that it was not liable towards the First Applicant for any
loss stemming from the hijacking incident of her motor vehicle.
[4] The First Respondent demanded its courtesy car back from the First Applicant
without success. The First Respondent ultimately instituted a rei vindicatio application
against the First Applicant to get its courtesy car back. The rei vindicatio application
was granted in favour of the First Respondent with costs . It is the taxed costs stemming
from these proceedings in the amount of R131 799.81 , which the First Applicant seeks
to have the execution of , stayed.
[5] Aggrieved by the First Respondent’s decision to not accept liability for the loss
of her motor vehicle, the First Applicant instituted a delictual claim under Case
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Number: 833/2023 (the main action), for the payment of the motor vehicle’ s value,
which amount ed to R537 139.99. The First Applicant’s attorneys served a notice of
intention to amend the particulars of claim. On the same day, the First Respondent’s
attorneys sent a notice of attachment to the First Applicant’s attorneys on 10 July 2024,
whereas it bears a court date stamp of 20 June 2024. In turn, the First Applicant’s
attorneys sent a letter to the First Respondent’ attorneys requesting a stay of execution
of the cost order , which request was declined.
Stay of proceedings
[6] It is trite that an application for a stay of proceedings and/or execution of court
orders is provided for in Rule 45A of the Uniform Rules of Court , which provides that
a court may suspend the execution of any order for such period as it may deem fit.
[7] With reference to case law, courts in applying the requirements of Rule 45A for
the stay of execution of orders or court proceedings have stated that the general
principle is to grant a stay of execution where real and substantial justice requires it ,
or where injustice would otherwise result. The court will be guided by considering the
factors usually applicable to interim interdicts, except where the applicant is not
asserting a right, but is attempting to avert injustice. The court must be satisfied that :
7.1 The Applicant has a well -grounded apprehension that the execution is taking
place at the instance of the Respondent; and
7.2 Irreparable harm will result if execution is not stayed and the Applicant
ultimately succeeds in establishing a clear right.1
[8] Irreparable harm will invariably result if there is a possibility that the underlying
causa may ultimately be removed, i.e. where the underlying causa is the subject -
matter of an ongoing dispute between the parties. The court is not concerned with the
merits of the underlying dispute – the sole enquiry is simply whether the causa is in
dispute.2
1 Gois t/a Shakespeare’s Pub v Van Zyl and Others 2011(1) SA 148 (LC) para 37 .
2 Ibid.
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[9] In the present matter the First Applicant is attempting to avert an injustice. That
injustice, according to the First Applicant would come about in that her main action
against the First Respondent would not be adjudicated by a court. The First Applicant
contends further that the First Respondent is intent on attaching her right of action,
which the First Respondent contends is necessitated by the First Applicant’ s inability
to satisfy payment of a duly taxed bill of costs. This, according to the First Appl icant,
would be unjust, considering that the First Respondent is a big corporation.
[10] Effectively, the First Applicant’s contention is that a decision in the main
application in her favour might or will ameliorate the burden to pay the taxed costs.
The First Applicant is not suggesting that those costs be set aside but that they only
be stayed until the matter is wholly finalised. The First Applicant asserts that she would
suffer irreparable harm if execution took place at this stage without waiting for a
favourable decision in the main action. The First Respondent on the other hand
maintain s that the First Applicant is unable to satisfy the court order and it has no other
means of securing payment of that debt.
[11] Rule 45A affords the court a discretion of the widest kind and imposes no
procedural or other limitations nor does it fetter on the power it confers. In an
application of this nature, an applicant is seeking an indulgence based on the
apprehension of injustice. Although the Rul e provides that the grounds on which a
court may exercise the discretion are that the causa of a judgment is being impugned
or that execution of the judgment is being sought for improper reasons . The court’s
discretion under Rule 45A cannot, however, be li mited only to these circumstances. In
exercise of its discretion, a court must stay a writ of execution where real and
substantial justice requires such a stay.3
[12] The First Applicant has no intention to challenge the taxed bill of costs. This
may well suggest that the causa of the First Respondent ’s judgment is not in dispute.
However, there is a possibility that the First Applicant’s debt to the First Respondent
might be paid up in full consequentially. I am alive to the fact that a stay of execution
is not to be had on flimsy grounds merely to acco mmodate an alternative payment
3 Road Accident Fund v Strydom 2001 (1) SA 292 (C) at 304G -H.
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plan by the judgment debtor (the First Applicant herein). Of significance is that the
court’s exercise of its discretion is fact specific. That being so, the First Respondent
has a right to redeem the judgment debt and should therefore, not be frustrated from
pursuing further avenues of debt recovery. I am therefore not willing to grant the relief
in wider terms as prayed for by the First Ap plicant. The decision I am called upon to
make must strike a balance between the First Applicant’s interests on the on e hand,
and those of the First Respondent on the other.
[13] It cannot be disputed that the decision of the court in the main action may have
the effect for which the First Applicant contends. There is a suggestion that the First
Respondent might be indebted to the First Applicant. This is a case where related
proceedings are yet to be determined in future, which may have some ameliorating
effect on the order sought to be executed , in that, such amount is in excess of the
amount of the cost order. In the result, prejudice and an injustice may be prevented.
[14] I am of the view , therefore , that the First Applicant laid a proper foundation for
contending that an injustice would result if execution was not stayed pending the
decision in the main action. Consequently, it would be in the interest of justice in the
peculiar circumstances of this case to grant a stay.
Costs
[15] Costs in respect of this application shall be costs in the cause. It would be fair
and reasonable that costs be deferred until the main case is decided. A party who is
ultimately successful at the hearing of the main case, will be entitled to the costs of
this application.
Order
[16] In the premise, I make the following order:
1 The application for the suspension of execution of prayer 3 of the judgment of
Gumede AJ , dated 15 December 2023 , is granted insofar as it relates to the
attachment by the First Respondent of the First Applicant’s right to an action that she
launched in Case Number: 833/2023, pending the finalisation of the main case .
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2 The c osts of this application shall be costs in the cause .
________________________
M R MOLELEKI AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVI SION, MBOMBELA
Appearances
For the Plaintiff : Mr. Simon Maelane
T G Mbatha Attorneys Incorporated
Mbombela
For the Defendant : Ms RJL Miranda
Barkers
Umhlanga
C/O Du Toit Smuts & Partners
Mbombela
Matter heard on: 8 May 2025
Judgment delivered on: 30 May 2025