Urgent application

16 January 2023 19:00 by Merilyn Kader

In Ndevu and Another v Westonaria South Property Holding (Pty) Ltd t/a Westonaria South and Others [2022] JOL 53978 (GP), urgent application for stay of execution, clear right was established that an irreparable harm will result.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Civil procedure - Urgent application – stay of execution – interim interdict: A group of 116 persons in Ndevu and Another v Westonaria South Property Holding (Pty) Ltd t/a Westonaria South and Others [2022] JOL 53978 (GP) occupying a government sector housing development brought an urgent application to stay the execution of an eviction order pending the finalisation of an application for leave to appeal. As the application for the leave to appeal was delivered about four days after the 15-day period prescribed by r 49 had expired, the applicants applied for condonation for the late filing of the application for leave.

The applicants’ submissions satisfied the court that the matter qualified as urgent.

The requirements for a stay of execution were set out by the court. A court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result. The court will be guided by factors usually applicable to interim interdicts, except where the applicant is not asserting a right, but attempting to avert injustice. The court must be satisfied that the applicant has a well-grounded apprehension that the execution is taking place at the instance of the respondents and irreparable harm will result if execution is not stayed and the applicant alternatively succeeds in establishing a clear right. The court is not concerned with the merits of the underlying dispute.

Considering each of the requirements for the interdict sought, the court found that the applicants had made out a case for the relief in question.

Merilyn Rowena Kader
Legal Editor at LexisNexis