Practice – Judgments and orders – Application for stay of execution of judgment pending appeal to Supreme Court – Court having jurisdiction to determine matter in terms of its inherent jurisdiction where dictates of real and substantial justice required it.
The first respondent filed a notice of appeal to the Supreme Court against the orders and judgment of this court dated 20 August 2018 wherein the court granted the applicant’s conditional counter-application. Shortly after the filing of the appeal by the first respondent, the applicants thereafter launched an application for leave to be granted to put the order dated 20 August 2018 into operation pending the appeal process.
In support of the application, a detailed founding affidavit deposed to by Mr. van der Plas was filed together with a number of supporting affidavits. The application was duly opposed by the first respondent and an answering affidavit of Mr. Koujo was filed in support of this opposition.
The crisp question for determination in the matter in casu is thus whether on the facts at hand, a proper case is made out to grant leave to put the order to execute the judgment into operation pending the appeal process.
This rule was premised on a principle of the common law to the effect that the noting of an application for leave to appeal, suspended the ‘execution’ of the order. Applications for leave to execute judgments of this court pending appeal, are governed by the provisions of Rule 121 (2). Rule 121(2) of the Rules of the High Court.
Mr. Heathcote argued on behalf of the applicants that the first respondent did not put up any case for potential of irreparable harm or prejudice and leave to execute should be granted. He pointed out that the first respondent, apart from a sweeping statement by the first respondent that he will suffer ‘massive and irreparable harm’, he failed to advance a single primary fact for such a statement.
Mr. Heathcote submitted that in contrast with the first respondent, the applicants made out a clear case for ‘massive and irreparable harm’ or prejudice should leave to execute be refused. He submitted that this was factually demonstrated in the founding affidavit of Mr. van der Plas.
Mr. Namandje contended that the applicants’ case is based on the wrong assumption that the judgment of this court in August 2018 resulted in a restoration of the first and second applicants mining claims. He argued that the applicants are defending this court’s acceptance of the irregular affidavit filed after close of pleadings and in which affidavit the third respondent stated under oath that the first applicant’s application for mining claims were still under consideration. However, he argued that whether or not the mining claims were granted, the fact remains that the cancellation of the first respondent’s claims was reviewed and set aside and the order on the counter application did not put any life in the alleged claims of the first applicant as the matter was simply referred back to the decision-maker.
It was argued that the majority of the allegations made on behalf of the applicants relates to the prejudice or irreparable harm to be suffered by the second applicant but that the second applicant as already alluded to did not apply for mining claim not does it have any. The allegations of prejudice and irreparable harm are therefore irrelevant and thus inadmissible.
It was further argued that the first respondent duly applied for mining claims and was granted such mining claims. Third parties were contractually recruited to undertake mining activities and it would suffer irreparable harm and prejudice if the first respondent were dislodged from the mining area, while awaiting the outcome of the appeal to the Supreme Court. Mr. Namandje submitted that it would be against all notions of justice if the first respondent were to be denied the right to undertake its mining activities when he has filed an appeal as the appeal enjoys excellent prospect of success.
Held – From the onset, there is very little contained in the answering affidavit of the first respondent in opposition to the application. In the answering affidavit of the first respondent, he indicated that he will suffer irreparable harm if the application is granted in favor of the applicants. The first respondent did not elaborate on the nature of or the potentiality of irreparable harm or prejudice.
Held – No documentation was presented to this court as to the nature of the potential prejudice or harm that the first respondent will suffer.
Held further – It not apparent how and why the respondent will be severely prejudiced should execution be granted. If the Wightman case is applied to the facts of this matter, there is clearly no real, genuine and bona fide dispute of fact that exists as the first respondent who raised the dispute in his answering affidavit did not address the facts said to be disputed.
Held – A court dealing with an application for leave to execute must caution itself against the temptation to deal with the application as if it was the appeal court, for this would have the undesirable effect of pre-judging the outcome of the appeal.
Held further – In my view, counsel for the first respondent remained unable during the hearing to demonstrate that there are prospects of success on appeal on the grounds raised. I do not believe that another court might come to a different conclusion on the grounds raised.