The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
In this appeal, the first respondent filed a suit in the lower court against the appellants claiming damages for trespass on his access road and a permanent injunction from blocking the access road. Court awarded him damages and in enforcing it a warrant of attachment was issued of the appellants’ property with his school properties. The same was purchased by the second respondent by auction despite the attempt to block the sale. The grounds of appeal are premised on failure to evaluate evidence and to nullify the illegal sale.
A company was in an earlier judgment ordered to pay specific damages for loss of business resulting from unlawful impounding of vehicles. Adjunct to that case, this case was an application for a decree by arrest and sending to prison of the Managing Director of the company. This is permitted in law as a way of executing and enforcing a judgment debt.
The applicants contended that they had appealed that judgment and hence he could not be arrested. The High Court held that the only application before the Court of Appeal was one to extend the time to file Notice of Appeal. Further a judgment debtor needs to show good cause as to why an application to execute a judgment should not be granted. The filing of an application to extend the time within which to file a Notice of Appeal is not good cause because there is already a judgment in their favour and they should be able to execute.
The court granted the application to send the Managing Director to prison unless the company paid the damages as ordered. However, the court did hold that the carrying out of the application should await the result of the appeal as carrying out the order may prejudice the appeal.
The applicant filed to the court an application for the execution of the decree by attachment and sale of the judgment debtor’s property.
The issue was whether an appeal can prevent the execution of an order.
The court noted that in any civil proceedings, where the notice of appeal has been lodged in accordance with rule 83, an appeal shall not operate as a stay of execution of the decree or order appealed from except so far as the high court or tribunal may order, nor shall execution of a decree be stayed by reason of an appeal having been preferred from the decree order but the court may upon good cause shown, order stay of execution of such decree or order. The court may, upon good cause shown order stay of execution of the decree or order. It is only where there is an order for order for stay of execution that a trial court is estopped from issuing an execution order.
The execution process has two stages. The first stage is the issuance of an executive order and the second stage is the enforcement of that order which is normally done in the registry or other designed officer in the registry.
The courts took into consideration the fact that there was no order or stay of execution and concluded that it could make an order for execution despite the pendency of an appeal suit.
Execution order was granted
The case dealt with an application by a decree holder to appoint a receiver to execute a judgment instead of a court broker.
The court held that appointment of a receiver is neither automatic nor a matter of right but is granted where there is no other effective away of executing a debt. The court held that the applicant did not provide reasons as to why a receiver would be able to execute the judgment better than a court broker. The court held that the court broker could be an effective route and hence a receiver should not be appointed. Both a receiver and court broker are accountable to the court so the court broker will be able to execute the debt effectively. Only when the court broker cannot execute effectively, can a receiver who is a disinterested third party be appointed.
The application was rejected.