Mgwenya and Another v NMI Durban South Motors (Pty) Ltd t/a Garden City Motors Mbombela and Another (525/2023) [2025] ZAMPMBHC 44 (30 May 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
CASE NO: 525/2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED YES/NO
DATE
30 May 2025
SIGNATURE
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.
JUDGMENT
[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 Number:
833/2023 (the main action), for the payment of the motor vehicle’s
value,
which amounted 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]
[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
Applicant,
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 maintains
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 Rule
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 limited 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 accommodate an alternative payment 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 Applicant. The
decision I am called upon to make must
strike a balance between the
First Applicant’s interests on the one 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.
2
The costs of this application shall be costs in the cause.
M R MOLELEKI AJ
ACTING JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION,
MBOMBELA
Appearances
|
For
|
Mr.
|
|
|
T G
|
|
|
Mbombela
|
|
For
|
Ms RJL
|
|
|
Barkers
|
|
|
Umhlanga
|
|
|
C/O
|
|
|
Mbombela
|
|
Matter
|
8 May
|
|
Judgment
|
30 May
|
[1]
Gois
t/a Shakespeare’s Pub v Van Zyl and Others
2011(1)
SA 148 (LC) para 37.
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