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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case No: 18103/2021

In the matter between:

CLAREMART AUCTIONEERS (PTY) LTD Applicant

and

WILHELMUS ANTONIUM VAN BEUREN First Respondent

PARAGON CPT (PTY) LTD Second Respondent

NANDE INGRID MABONA Third Respondent

TSM INC Fourth Respondent

THE SHERIFF OF THE HIGH COURT, CAPE TOWN Fifth Respondent

Heard: 3 July 2025
Delivered: Electronically on 30 July 2025

Summary: Application for stay of warrant of execution. The applicant sought an
undertaking from the first and second respondents that they would not execute. The
respondents refused to make such an undertaking. The applicant instituted an urgent
application for a s tay of execution. The respondents provided an undertaking after
the application was instituted. Stay of execution granted. Respondents ordered to
pay the costs of the application.

ORDER


1. The Warrant of Execution issued by the Registrar of this court on 04 June
2025 and executed on 09 June 2025, is hereby stayed pending the outcome
of the applicant’s application for leave to app eal or any subsequent appeal
proceedings.

2. The first and the second respondents are ordered to pay the costs of this
application jointly and severally including the costs of counsel on a party and
party scale B.


JUDGMENT
___________________________________________________________________

LEKHULENI J:

Introduction

[1] This is an application in which the applicant seeks an order that the execution
of a judgment handed down by Fortuin J on 19 February 2025 be stayed pending the
determination of an application for leave to appeal in respect of that judgment and
any appeal proceedings following thereafter. The applicant also seeks an order that
all warrants of execution issued aga inst the applicant pursuant to the impugned
judgment be stayed pending the determination and outcome of the applicant’s

application for leave to appeal or any subsequent appeal proceedings. In addition,
the applicant seeks an order that the first and second respondents be ordered to pay
the costs of this application. The third, fourth, and fifth respondents did not take part
in these proceedings. Accordingly, references to the respondents in this judgment
refer only to the first and second respondents.

Factual Background

[2] The main application giving rise to the judgment of Fortuin J against the
applicant was pronounced in October 2021. In that application, the first and second
respondents sought an order declaring the sale agreement concluded in Janu ary
2018 in respect of Erf 1[...], situated in Delft, between the first and third respondent
to be invalid and not binding against the first and second respondents. The property
in question was sold at an auction by the applicant, who is also an auctioneer. The
first respondent attended the auction and submitted the highest bid, and the property
was subsequently sold to him. After the auction, the first respondent entered into a
nomination agreement with the second respondent. This agreement allowed the first
respondent to replace himself with the second respondent as a purchaser of the
property, which is a company of which the first respondent is the sole shareholder.

[3] The third respondent, Ms Mabona, was the seller of the property. She was,
however, not the registered owner of the property. She purchased the property from
the registered owner; however, at the time of the auction, it had not yet been
transferred or registered in her name. The transaction was accordingly going to be a
back-to-back registrat ion, in that it first had to be registered from the registered
owner to the third respondent, and then from the third respondent into the name of
the second respondent. The fourth respondent was appointed as the transferring
attorneys. However, before the property could be registered in the name of the

attorneys. However, before the property could be registered in the name of the
second respondent, it was discovered that Ms Mabona had constructed structures
on the property without obtaining any municipal planning consent or approved plans.
The structures built by t he third respondent on the property were unlawful and did
not comply with fire regulations.

[4] Subsequent thereto, the respondents cancelled the contract and demanded
refund of the sum of R180,000. This amount included the sum paid by the first
respondent to the applicant, which comprised ten percent of the purchase price, as
well as the auctioneer’s commission and VAT. During October 2021, the first and
second respondents instituted the main application to declare the sale invalid,
alternatively cancel it, and sought repayment of the sum of R180,000 . On 4
November 2024, the application was argued before Fortun J. After considering the
matter, on 19 February 2025, Fortuin J handed down judgment and found on various
grounds that the sale agreement entered into between the first and the third
respondent was invalid. The court ordered the applicant to repay the amount of
R180,000, together with interest thereon, to the respondents.

[5] Thereafter, the applicant filed its application for leave to appeal the judgment
on 17 March 2025. The application for leave to appeal was delivered two days late.
The applicant asserted that Fortuin J’s judgment, delivered electronically to the
parties, recorded an incorrect case number, and the confusion surrounding the case
number, as reflected in the judgment, caused the application for leave to appeal to
be filed out of time. According to the applicant, the reasons for the late filing of the
application for leave to appeal were not only due to the incorrect case number on the
judgment, but also because their counsel was involved in a trial and had to undergo
a medical procedure during that time. To this end, a separate affidavit was filed
together with the application for leave to appeal, in which the reasons for the late
filing were explained.

[6] Notwithstanding the application for leave to appeal, the first respondent
enforced the judgment of Fortuin J by issuing a warrant of execution against the
applicant. The warrant was served and executed against the applicant on 9 June

applicant. The warrant was served and executed against the applicant on 9 June
2025. The Sheriff of Cape Town West, the fifth respondent, attached several
movable assets of the applicant. On 11 June 2025, before launching this application,
the applicant sent a letter to the respondents’ attorney s seeking an undertaking that
the respondents would not pursue execution and would stay the warrant pending the
outcome of the application for leave to appeal. In the correspondence, the
applicant’s attorney also advised that if such an undertaking was not provided or was
denied, the applicant would be compelled to bring an urgent application to seek the

same relief. On 12 June 2025, the respondents ’ attorneys replied and refused to
provide such an undertaking. The att orneys for the respondent expressed the
intention to proceed with the execution of the applicant’s movable assets once the
inventory from the sheriff was received.

[7] On 17 June 2025, the applicant launched this application on an urgent basis
and had it served upon the respondents. The application was set down for hearing
on 3 July 2025. On 25 June 2025, the attorney for the respondents sent a letter to
the applicant, stating that, in the interest of reaching a cost-effective resolution and
without admitting to any part of the applicant’s application, the first and second
respondents were willing to provide an irrevocable guarantee that no further
execution steps would be taken while awaiting the outcome of the applicant’s
application for condonation and leave to appeal.

[8] On 27 June 2025, the respondents’ attorney further sent an email to the
applicant’s attorneys in which it was asserted that, for the avoidance of doubt, the
tender made on 25 June 2025 was made on record. It was further sta ted in that
correspondence that the applicant had approached the court on an urgent basis, and
that the urgency had already fallen away in light of the respondents’ irrevocable
undertaking.

[9] On 27 June 2025, the applicant’s attorney requested reasons from the
respondents’ attorneys for their initial refusal of the undertaking, thereby forcing the
applicant to approach the court on an urgent basis. Furthermore, the applicant’s
attorney inquired as to why the first and second respondents should not make a
tender for the wasted costs. On 30 June 2025, a further letter was addressed to the
respondents’ attorneys, noting that it was because of the respondents’ unreasonable
conduct and refusal of the initial undertaking that necessitated the application. To
this end, Ms Theron, counsel for the applicant in the present matter, implored the

this end, Ms Theron, counsel for the applicant in the present matter, implored the
court to grant the order postulated in paragraph 1 of this judgment.

[10] The respondents, on the other hand, contend that the application is entirely of
the applicant’s own making. Mr Van Reenen, counsel for the respondents , submitted
that the applicant launched its application for leave to appeal late and did not appear

to appreciate that, as a matter of law, a late application for leave to appeal does not
stay the execution of the judgment sought to be appealed. The respondent s also
asserted that they did not agree to stop execution of the judgment they obtained and
were under no obligation whatsoever to agree not to execute the judgment.
Furthermore, no formal appl ication for condonation was filed for the late filing of the
application for leave to appeal.

[11] According to the respondents, the affidavit explaining the delay in filing the
application for leave to appeal was inadequate. The respondents believed tha t the
applicant’s dilatory conduct was the cause of this entire application. The first and
second respondents asserted that it is unreasonable for the applicant to seek costs
from them, especially since they have made an undertaking not to execute. The
respondents opined that on 25 June 2025; after considering the applicant’s
application for the suspension of the warrant of execution, they made an irrevocable
undertaking not to execute upon the judgment pending the hearing of the application
for leave to appeal.

[12] The respondents contended that, notwithstanding their irrevocable tender, the
applicant insisted on its application and sought a cost order against them. The
respondents averred that the application was not urgent, considering the
undertaking, and proposed that the issue of costs stand over for later determination.

Issues to be decided

[13] This court is tasked to determine two issues. First, whether the judgment
granted on 19 February 2025, and the subsequent warrant of execution, should be
suspended while the applicant seeks leave to appeal. Secondly, whether the
respondents should be ordered to pay the costs of this application.

Discussion

[14] For clarity, I will address the disputed issues sequentially. I turn to consider
whether the judgment and the subsequent warrant of execution should be
suspended or not.

Should the Warrant of Execution be suspended?

[15] Section 18(1) and 18(3) of the Superior Courts Act 10 of 2013 and Rule 45A
of the Uniform Rules of Court addres s the issues surrounding the suspension of an
order. Section 18(1) and 18(3) of the Superior Courts Act provides:

(1) Subject to subsections (2) and (3), and unless t he court under exceptional
circumstances orders otherwise, the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application or appeal.
(2) …

(3) A court may only order otherwise as contemplated in subsection (1) or (2), if
the party who applied to the court to o rder otherwise, in addition proves on a
balance of probabilities that he or she will suffer irreparable harm if the court
does not so order and that the other party will not suffer irreparable harm if the
court so orders.’

[16] Rule 45A of the Uniform Rules of Court grants this court a wide discretion to
suspend an order for execution, which is limited only by the consideration that it must
be exe rcised judicially. A court is empowered to, on good cause shown, stay any
warrant of execution. Execution is a court process, and the court has inherent power
to control its own process, subject to the Rules of Court. ( Cohen v Cohen 1979 (3)
SA 420 (R) at 423D-C). Execution should generally be allowed unless the applicant
for a stay shows that real and substantial justice requires that such a stay should be
granted. (Rood v Wallach 1904 TS 257 at 259; Graham v Graham 1950 SA 655 (T)
at 657 and 658).

[17] Circumstances can arise where a stay of execution as sought here should be
granted on the basis of real and substantial justice. Thus, where injustice would
otherwise be caused, the court has the power and would, generally speaking, grant
relief. (Strime v Strime 1983 (4) SA 850 (C) at 423B ). The authorities discussed

hereinabove are clear: the court will grant a stay of execution where a real and
substantial injustice would otherwise eventuate.

[18] In the present matter, it is not in dispute tha t the applicant seeks to appeal the
court’s judgment. It is also common cause that the application for leave to appeal
has been filed, though 2 days after the cut -off date. It is now trite that if an
application for leave to appeal had not been served with in the prescribed time in
terms of the Rules of Court and if no condonation for the non -compliance had been
granted, then the judgment against which leave to appeal is sought is not suspended
despite the filing of such an application for leave to appeal. ( Panayiotou v Shoprite
Checkers (Pty) Ltd and Others 2016 (3) SA 110 (GJ)). However, in my view , the
inquiry does not end there.

[19] I must emphasi se that, from the factual background discussed above, the
respondents’ conduct leading up to the launch of t his application is relevant to the
consideration of the disputed issues in this matter. As previously mentioned , the
application for leave to appeal was filed on 17 March 2025. Condonation for the late
filing of the application for leave to appeal was soug ht, and a separate affidavit was
filed in support of that application. The applicant has given reasons for the late filing
of its application for leave to appeal. I pause to mention that it is not for this court to
adjudicate that application. It is expect ed that the merits of that application, as well
as the application for leave to appeal, will be dealt with in the appropriate forum in
due course.

[20] However, from the documents filed, it is abundantly clear that the first and the
second respondents knew that the applicant intended to exercise its right to apply for
leave to appeal the impugned judgment. The respondents were aware that the
applicant filed its application for leave to appeal, as well as an affidavit explaining the

applicant filed its application for leave to appeal, as well as an affidavit explaining the
delay in applying for leave to appeal. Despite the delivery of the application for leave
to appeal and the affidavit in support of the condonation application, the respondent
proceeded to issue a warrant of execution against the applicant. Whilst I accept that
an application for leave to appeal filed out of time does not suspend the execution of
the judgment, in my view, the conduct of the respondent in this case was improper
and unacceptable. The respondents’ surreptitious issuing of the warrant of execution

without any prior wa rning, notwithstanding the application for leave to appeal, in my
view, was not justified. The respondents proceeded to execute against the movables
of the applicant, notwithstanding their knowledge that the applicant was appealing
the judgment, which is the substratum of the warrant.

[21] What I find very concerning is that, prior to the launch of this application, the
applicant’s attorney addressed a written request to the attorneys of the first and
second respondents, asking for an undertaking that the execution of the warrant
would be stayed pending the outcome of the application for leave to appeal. The first
and second respondents’ attorney refused to provide the undertaking, indicating that
they intended to proceed with the execution against the app licant’s movable assets.
This led the applicant to institute an urgent application for a stay of execution. The
respondents only provided the applicant with the necessary undertaking that they will
not proceed to execute after the applicant launched the pr esent application. The
applicant would not have launched this application if the respondents had given an
undertaking promptly or timeously.

[22] At the time the undertaking was provided, costs had already been incurred, as
the applicant had already laun ched this application in this court. In addition, the
respondents’ undertaking was not unconditional. The applicant was compelled to
come to court to seek a stay of execution. This court bears the duty to ensure that
both procedural and substantive justice are served. To this end, I share the views
expressed by the court in Infusion Social Club Camps Bay (Pty) Ltd v Camps Bay
Investment Trust (Pty) Ltd and Another (20608/2024)[2024] ZAWCHC 288 (30
September 2024) para 44, where the court noted that even in adversarial litigation
such as the present matter, litigant must conduct themselves with due regard to the
procedural rights of their adversaries, and when, by design, they fail to do so, it may

procedural rights of their adversaries, and when, by design, they fail to do so, it may
be acting unlawfully, which the court is entitled, indeed enjoined, to redress.

[23] As discussed above, t he applicant displayed its intention to appeal the
impugned judgment. From the documents filed, the sheriff of the court has attached
several movable assets of the applicant. If thos e assets are sold in execution , and
the applicant succeeds in its appeal proceedings, the applicant would suffer
substantial prejudice. In Knoop NO v Gupta (Execution) 2021 SA 135 (SCA) at

139D, t he Supreme Court of Appeal held that ‘the immediate execution of a court
order, when an appeal is pending and the outcome of the case may change as a
result of the appeal, has the potential to cause enormous harm to the party that is
ultimately successful’. In my opinion, t he failure to suspend the warrant of execution
will result in irreparable loss to the applicant.

[24] I am also mindful that the respondent s have tendered an irrevocable
undertaking that no further execution will take place pending the outcome of the
leave to appeal and, if leave to appeal is granted, the final determination of the
appeal. On a conspectus of all the facts placed before this court, I am of the view
that the applicant’s application to stay the execution of the warrant must succeed.

[25] I am cognisant that the applicant is also applying for the suspension of the
judgment of the court that authorised execution against the applicant. In my view, the
suspension of the warrant would serve the same purpose.

Should the respondents be ordered to pay the costs of this application?

[26] As previously mentioned , the applicant sought an undertaking from the
respondents that they will not proceed with execution before approaching this court
on an urgent basis, and that undertaking was refused. The applicant was compelled
to institute this application to suspend th e warrant pending the outcome of the
application for leave to appeal. The respondent made an irrevocable undertaking not
to execute long after the applicant launched the application. The respondents’
undertaking was conditional, and they did not tender the costs incurred in bringing
the application.

[27] The respondents were warned that if a tender was not made , the applicant
would bring and application to court . In my view , the costs incurred by the applicant
in bringing this application must be borne by the respondents. This also includes the

in bringing this application must be borne by the respondents. This also includes the
costs incurred for the hearing of this matter. If the respondent s tendered the costs of
the application, it would have been unnecessary fo r the applicant to proceed with
application on 3 July 2025 . Bereft of such tender, the applicant was compelled to
appear and argue the matter.

Order

[28] Given all these considerations, the following order is granted.

28.1 The Warrant of Execution issued by the Registrar of this court on 04
June 2025 and executed on 09 June 2025, is hereby s tayed pending
the outcome of the applicant’s application for leave to appeal or any
subsequent appeal proceedings.

28.2 The first and the second respondent s are ordered to pay the costs of
this application jointly and severally, including the costs of counsel on a
party and party scale-B.


_________________________
LEKHULENI J
JUDGE OF THE HIGH COURT


APPEARANCES

For the Applicant: Adv Theron
Instructed by: Cluver Markotter Attorneys

For the Respondents: Adv Van Reenen
Instructed by: Lionel Murray Schwormstedt & Louw