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[REPORTABLE]

IN THE HIGH COURT OF SOUTH AFRICA

CAPE OF GOOD HOPE PROVINCIAL DIVISION

Case No: 1129/02

In the matter between:

ROBERT ANTHONY BOLTON COOPER Applicant

and

DIANE HENDERSON FEINSTEIN Respondent

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THIS JUDGEMENT DELIVERED ON 20 APRIL 2005

________________________________________________________________

NDITA AJ:

[1] This is an opposed application in terms of Rule 45A of the Uniform Rules of Court for an interdict pendete lite. The Applicant seeks an order suspending the writ of execution pending final determination of an action in which the Applicant seeks to recover certain monies which were allegedly loaned and advanced to the Respondent.

[2] The Applicant is an adult male businessman of No 12 Comrie Road, Camps Bay, Cape Town. The Respondent is an adult female businesswoman currently residing at 20 River Court, New Jersey, U.S.A, but owns property within the Republic of South Africa and was resident in the country.

[3] The application is for the suspension of the warrant of execution against the applicant on the basis that the debt has automatically set-off an amount of R540 00, 00 due by the Respondent to the Applicant.

[4] Advocate Tredoux appeared for the Applicant, while Advocate Howie represented the Respondent in court.

[5] Facts which are common cause

(i) On 16 October 1998, the Applicant instituted proceedings against the Respondent under Case No: 13741/98, in which he sought an order authorizing him to attach the Respondent’s undivided half share in certain immovable property known as erf 11470, The Orchard, Somerset West, Cape Town.

2. The said application was dismissed with costs on 2 March 1999.

3. On 31 May the Respondent’s Bill of Costs was taxed in an amount of R45 535, 00 (forty five thousand five hundred and thirty five rand). A warrant of execution was issued for the recovery of the costs. The warrant of execution has been suspended pending the institution of this application in terms of Rule 45 (A) of the Uniform Rules of Court alternatively Common Law for an order suspending the execution of the said order of costs.

4. The Applicant admits being indebted to the Respondent in the aforesaid amount as a consequence of the aforegoing facts and circumstances. The Applicant, however, contends that the amount of the taxed bill was set-off against the amount which the Respondent owed him arising out of the loan and applies, in these proceedings, for an order suspending the writ of execution.

5. The specific form of protection which the applicant seeks is that the warrant of execution issued against the Respondent be suspended and that the Responded be interdicted from taking any steps to execute same, pending the determination of an action by the applicant for the payment of a sum of R540 000, 00 (five hundred and forty thousand rand) due to the Applicant for ancillary relief.

[6] Summary of Essential Facts

The general background to the matter is that the court is being asked to order the stay of the writ of execution pending the determination of the action where the Applicant claims for the recovery a sum of R540 000, 00 allegedly loaned and advanced to the Respondent, and deposited into the Respondent’s account in Barclays Bank, PLC International Centre, Richmond Upon-Thames, Surrey, United Kingdom. Although the Respondent admits that she was the “sole signatory and beneficiary” of the said account, she denies that the money was loaned to her. Instead she contends that the money was loaned to one Yehuda who was married to her daughter, Nicky.

[7] In pursuance of the alleged debt, on 06 February 1998, the Applicant obtained an order authorizing the arrest of the Respondent tamquam suspectus de fuga. The order was executed upon the Respondent as a result of which he was duly apprehended at the airport. Independently, and unbeknown the Applicant, one van Seters also caused the Respondent to be arrested on similar grounds. Van Seters, the Applicant and the Respondent negotiated a settlement that was agreed to by both parties. A settlement was reached because the Respondent was desirous of securing her release from the arrest and contains a specific provision to the effect that the Respondent denies liability to either the Applicant or van Seters in any amount and on any basis whatsoever. The Respondent was released from custody and the arrest settled on the following terms:

“1. An amount of R100 000, 00 (one hundred thousand rand) would be paid to the Applicant and van Seters after the Respondent was no longer present in the boundaries of the Republic of South Africa. Payment of the sum of R200 000,00 (two hundred thousand rand), as referred to, is made in full and final settlement of any indebtedness on the part of the Respondent to either the Applicant herein whatsoever cause arising, now or in the future.

2. The Respondent had no assets of her own as at 9 February 1998, save for clothing, personal effects and kitchen utensils.

3. In the event that it is established that the statement above is not correct, payment will be made without prejudice to the right of the Applicant to proceed against the Respondent for the balance of their alleged claims”.

[8] It transpired, however, that the Applicant was on 9 February 1998 the registered owner of an undivided half share in a certain immovable property, erf 11470, the Orchard, Diaz Street, Somerset West, Cape Town. Whereas the Respondent admits that she was the registered owner of the property, she maintains that this was only as a nominee and that the property in question therefore did not comprise an asset in her estate. The Applicant was therefore entitled to proceed against the Respondent for the balance of the claim and on 16 October 1998 the Applicant instituted proceedings against the Respondent under case number 13741/1998 in which he sought an order authorizing him to attach the Respondent’s undivided half share in the said property ad fundandam jurisdictionem. The application was dismissed with costs on the basis that it was unnecessary for the property to be attached.

[9] On 31 May 2002 the Respondent’s bill of cost was taxed in the amount of R45 535,00 (forty five thousand five hundred and thirty five rand). The Applicant, however, contends that the amount of the taxed bill was set-off against the amount which the Respondent owed him arising out of the loan and applies in these proceedings for the suspension of the writ of execution.

[10] The Applicant avers that the balance of convenience favours him in that:-

1. The Respondent has taken more than three years to cause her bill of costs to be taxed, and she clearly does not regard the matter as being urgent.

2. The costs are substantial and the Applicant will be unable to recover the costs in the event he is ultimately successful in his action as the Respondent refuses to divulge her address.

[11] The Applicant further avers that he will suffer irreparable harm in the event that he has to pay the Respondent costs in the interim in that:

1. He will have to take steps in order to free considerable resources in order to pay the costs, and in so doing relinquish investments and dispose of assets.

2. In so doing, he will sustain irreparable harm because, in the event that he is successful in the main action and is able to recover anything from the respondent (which is unlikely as she is established overseas) he would not be able to recoup these losses.

[12] It has been argued on behalf of the Respondent that the application, wherein it is the Applicant’s contention that he is entitled to rely on the automatic set-off of its costs liability as a basis upon which to obtain the stay of the warrant of execution, has no merit. Furthermore, it has been submitted that the Applicant enjoys no prospect of success in his intended trial action because his alleged claim, which forms the subject matter, has prescribed.

[13] From the onset I need to state that this court is not called upon to decide whether there has been a set-off or not, or whether the Applicant’s claim has prescribed. It would be incompetent for this court to do so and would also be pre-empting the decision of the trial court. The narrow issue before court is whether it would be just and equitable to grant the relief sought by the Applicant in the circumstances of this case. The Applicant, in order to secure such relief, needs to establish that the prospects of success in the future action favour him and that, as such, he is entitled to relief.

[14] The pleaded basis for the relief is that, so the Applicant claims, if proved, are liquidated amounts, and that set-off would operate ex tunc. Both parties have admitted that a set-off was an issue for the main trial. However, in considering whether the Applicant has established a prima facie case, though open to some doubt for the relief sought, for a wholesome approach I need to refer to the pleaded set-off.

[15] It is settled law that, to consider the question of set-off the reciprocal debts must be liquidated and, in the instant case, the claim is indeed sounding in money. A court can consider setting aside the writ of execution on the basis of a set-off if an agreement exists in which the Respondent acknowledges his indebtedness to the Applicant in the amount equal to or in excess of R45 000 (forty five thousand rand). (See Tierfontein Boedery (EDM) BIC v Weber 1973 (4) SA 445).

[16] In the instant case, although the plaintiff alleges the set-off of the costs, such assertion is strenuously opposed by the Respondent on the basis that the Applicant’s claim has prescribed. It appears from the papers that the Applicant’s claim might have prescribed but, whether or not the running of prescription has been interrupted by the Respondent’s absence from the Republic of South Africa is a matter to be decided in the main action. I am in the circumstances and based on the pleaded set-off unable to assess what the Applicant’s prospects of success in the main action are. This factor should in any event be looked at with the issue of whether or not the Applicant has established a prima facie case of sufficient cogency in the sense understood in applications for interim interdictory relief.

[17] It is trite law that a court has inherent jurisdiction to order a stay of the warrant of execution and suspend the operation of an order granted by it subject to the discretion being exercised judicially. (See Erasmus Superior Court Practice, B1-330). Courts will, as a general rule, grant a stay of execution where real and substantial injustice will otherwise be done. The test has been succinctly laid down in Dumah V Klerksdorp Town Council 1951 (4) SA 519 (T) as follows:

“The court must consider what would be just and equitable as between the parties and, if it considers that, regard being had to that factor, the execution must be stayed, then it is proper to exercise its discretion in favour of the stay”.

[18] In particular circumstances it has been held that the court could, in the determination of the factors to be taken into account in the exercise of its discretion under Rule 45A, borrow from the requirements of an interdict. (See Erasmus v Sentraalwes Kooperasie BPK 1997 (4) B All SA 303 O at 307 and Road Accident Fund v Strydom 2001 (1) SA 292 (C). Similarly, it has been held that:

“The fact that the claim for costs has been extinguished by set-off is a grant for staying execution in respect of those costs, but application for leave to suspend execution has been, however, refused pending a rise in the property market, further litigation or the realization by an executor of the debtor’s estate.” (my emphasis)

(See Herbstein and Van Wissen, The Civil Practice of the Supreme Court of South Africa, 4th ed. (Cape Town: Juta &Co., 1997 p. 808.))

[19] It appears from what the learned authors discuss that the circumstances in which courts will grant or refuse the application for suspension of writ of execution vary from case to case depending on circumstances of the each case. There is therefore no hard and fast rule.

[20] I now turn to consider the cogency of the application. The Applicant in the present case has, since 1999, been aware that the Respondent had been awarded costs in the sum of R45 535,00 (forty five thousand five hundred and thirty five rand). He was legally represented and was obviously aware of the consequences of such an order. Thus he noted an appeal against the costs order. He served the notice of appeal on the Respondent’s attorneys Miller, Katz and Traub on 29 April 1999. The Applicant failed to prosecute the appeal without issuing any notice of withdrawal. Furthermore, from at least April 1998, the Applicant had knowledge that the Respondent was half-owner of the immovable property situated at 15 Diaz Street, Somerset West. The property had at all material times existed within this Court’s jurisdiction, and this Court itself dismissed an application by the applicant to attach same in order to found or confirm jurisdiction. The Applicant has argued that the Respondent was at all times outside the Republic of South Africa and as such he could not institute action. It is undisputed that the Respondent submitted in writing to the jurisdiction of this Court on 5 November 1998 in respect of an action which the Applicant wished to institute in respect of the debt which forms the subject matter of this application. In fact, the Applicant confirms in his replying affidavit that this Court had, at all material times, jurisdiction. Similarly, the Respondent’s erstwhile attorneys, Miller Gruss Katz and Traub, confirm in their letter dated 5 November 1998 that they would have accepted service of summons. All the factors mentioned contribute in negating any cogency the application might have had.

[[21] The Applicant avers in his founding affidavit, signed on 18 February 2003, as follows:

“I have instructed my legal representatives to issue summons against the Respondent to obtain (a) an order declaring that a set-off occurred and (b) an order directing the Respondent to pay the balance to me, and (c) the usual and ancillary relief”.

[22] This Application was heard for the first time before Traverso, DJP on 10 March 2003 and the matter was set down for 30 November 2004, when it was eventually heard. It is expected that, if the Applicant seriously intended to pursue litigation in respect of the set-off, to have done so by the time he brought an action for the interim relief. See the judgment of Van Wyk J in Juta & Co. Ltd and Legal Financial Publishing Co (Pty) Ltd 1969 (4) SA 443C, wherein it was established the principle that an application for an interdict pendete lite from its very nature required the maximum expedition on the part of the applicant. It was held as follows:

“This decision also has a bearing on the issue of whether the Court should, in the circumstances, allow the applicant to proceed with application for an interdict pendete lite. If one bears in mind the long delays, for which no explanation has been given, that as far December the applicant had numerous clear cases of copying in its possession, according to the letter written by the applicant, and that up to now no action has been instituted, it seems that the applicant has erred in selecting this method, namely, an application for an interdict pendete lite, but even if it was the appropriate procedure at the time, the applicant has by reason of the facts stated above, forfeited its rights to temporary relief. Had it issued summons at the time when the motion proceedings was instituted, the trial would already have taken place … There is such a thing as tyranny of litigation, and a court of law should not allow a party to drag out the proceedings unduly…”

[23] The Applicant in the instant case has not explained the delay in not only launching the interdict proceedings, but also his failure to take expeditious steps as was expected of him to bring the main action to trial. In the circumstances, I am not convinced that the Applicant has established a case of sufficient cogency for an interim interdictory relief.

[24] In his notice of motion the Applicant prays for an order staying the execution directing him within ten (10) days to institute proceedings in which he claims the R540 00, 00 (five hundred and forty thousand rand) and a declaratory order that the taxed costs owing to the Respondent have been set-off against the amount owed.

[25] Furthermore, this is in stark contrast with what he earlier states in his founding affidavit that he had issued instructions to his attorneys to issue summons. It may well be that the Applicant has excellent prospects in the main action but in my view, in the present case, he has not established a prima facie right, even though open to some doubt to the relief he is seeking. Where a party seeks to suspend the operation of a court process pending litigation, (in the instant case the writ of execution), to establish a prima facie case, such party should demonstrate a serious intention to pursue the pending litigation.

[26] Even if the applicant had established the requisites for an interdict, I cannot shut my eyes to the Applicant’s failure to press on with the main action for more than three years and failing to prosecute the appeal he had noted. (See the judgment of Holmes J in Limbada v Dwarka 1957 (3) SA 60 (N)). That, in my opinion, is sufficient ground for doubting whether the applicant has a genuine claim. (See also Chopra v Avalon Cinemas SA (Pty) Ltd & another 1974 at 469).

[27] Because the Applicant has failed to establish a prima facie case for the relief sought, it would therefore be pointless to consider whether the balance of convenience favoured him or whether the claim has prescribed or not.

As in Cohen v Cohen 1979 (3) SA 423 D, I am not convinced that in the instant case I should grant a stay of execution merely because litigation concerning rights under an agreement is pending, more so that the Applicant has not established a prima facie right to the relief he is seeking. Therefore I am of the view that the application must fail.

[28] Accordingly I make the following order. The application is dismissed with costs.

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NDITA AJ

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