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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT)

Case Number: 46832/10

Date: 2011-09-01

In the application between:

Nedbank Limited.........................................................................................Plaintiff/Respondent

and

Ngoanakgoro Johannes Phihlela................................................................ Defendant/Applicant

And in the application between:

Case Number: 43433/10

Nedbank Limited..........................................................................................Plaintiff/Respondent

And

Ngoanakgoro Johannes Phihlela.................................................................Defendant/Applicant

Judgment

Southwood J

[1] These are applications in terms of Rule 49(11) that the applicant be permitted to execute the writs of execution on the summary judgments granted under case numbers 46832/10 and 43433/10 pending the respondent's application for leave to appeal against the judgment and order dismissing the respondent's application to rescind the summary judgments.

[2] It is clear from the provisions of Rule 49(11) that the filing of the notice of application for leave to appeal against the judgment and order dismissing the respondent's application for rescission of the summary judgments does not have the effect of suspending the summary judgments granted for the return of the vehicles - see MV Snow Delta: Seeva Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 476 (SCA) para 6; SAB Lines (Pty) Ltd v Cape Tex Engineering Works (Pty) Ltd 1968 (2) SA 535 (C) at 537C-F. These orders therefore still stand and the applicant may execute upon them. The applicant is therefore entitled to have the vehicles attached by the sheriff and returned to it. If the respondent refuses to comply with these orders he will be in contempt of court as pointed out in the judgment refusing the application for rescission. Any advice that the filing of the notice of application for leave to appeal suspends the operation of the summary judgments is clearly wrong. The respondent is therefore obliged to comply with these orders forthwith.

[3] The applicant applies for an order calling upon the respondent to show cause why he should not be committed for contempt of court. It seems to me that this is the only way that the respondent will be brought to his senses. Prima facie the applicant has shown that it obtained orders against the respondent, the respondent is aware of these orders and the respondent is deliberately not complying with the orders. In view of the urgency of the matter I am prepared to grant the rules nisi requested by the applicant.

[4] The applicant is entitled to the costs of these applications and such costs should be taxed on the scale as between attorney and client.

[5] An order is made in terms of prayers 1, 1.1, 1.2 and 2 of the amended draft order which is marked 'X'.

B.R. SOUTHWOOD

JUDGE OF THE HIGH COURT

CASE NO: 46832/10 and 43433/10

HEARD ON: 1 September 2011

FOR THE APPLICANT: ADV. J.P. VAN DER BERG

INSTRUCTED BY: Van Heerden's Inc.

FOR THE RESPONDENT: ADV. TSHABUNGWA

INSTRUCTED BY: Tumi Mokwena Inc.

DATE OF JUDGMENT: 1 September 2011

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