Sambo v Milns

• Judge: Margo J
• Judgment Date: 26 September 1972
• Citation: 1973 (1) SA 451 (T)
• Hearing Date: 09 September 1972
• Court: Transvaal Provincial Division

Margo, J.:

The applicant was the successful plaintiff in an action against the respondent in this Court, in which damages were claimed for G personal injuries consequent on a shooting incident. Judgment was granted in the applicant's favour for R15 384 and costs. The respondent has noted an appeal to the Appellate Division, and the applicant now applies for leave to execute on his judgment.

The application is supported by affidavits by the applicant's attorneys, H in which reference is made to two newspaper reports and to a statement by a Press reporter on admissions alleged to have been made by the respondent in the course of an interview. It is said that the Press reporter declines to make an affidavit and that he should be made to testify viva voce under subpoena. The substance of the newspaper reports and of the reporter's statement is that the respondent has declared that he cannot meet the judgment, that he has received a bill from his attorneys for R10 000 for costs, which he cannot pay, and

Margo J

that he cannot afford to prosecute the appeal. From these alleged admissions the inference has been drawn on behalf of the applicant that the respondent did not authorize the noting of the appeal; that the A respondent has no intention of proceeding with it; that the appeal has been noted merely for the purpose of gaining time; and that there is a substantial risk that the respondent will attempt meanwhile to dispose of his assets to the prejudice of the applicant.

In the respondent's answering affidavit, the alleged admissions to the Press reporter are denied, as are the relevant portions of the two newspaper reports. The respondent avers, and in this he is supported by B his attorneys, that the noting of the appeal was duly authorized by him. He says that he intends to prosecute the appeal to the final determination thereof, and he denies that he has noted it merely to gain time. He says,

'Ek wil dit duidelik stel dat ek geen begeerte het om enige van my bates te verkoop om die applikant te benadeel nie.'

C Whether or not he intends to dispose of his assets for any other reason is not stated. He denies that he has received a bill for R10000 for his costs, and that denial is corroborated by his attorneys. The respondent does not deny the allegation that he cannot meet the judgment or the costs. Nor does he allege that execution at this stage would cause him D hardship or irreparable harm if he were later to succeed in the appeal. On this aspect he avers merely that, if execution were to be allowed now and if the appeal were to succeed, he would suffer irreparable harm because the applicant would then not be able to restore him to his previous position by repaying the money: this point overlooks the rule that leave to execute is conditional on the provision of proper security de restituendo.

E Mr. Israel, for the applicant, conceded that there was a conflict of fact which could not be resolved on the affidavits, and he therefore did not press for viva voce evidence to be taken from the Press reporter under subpoena. The applicant's case therefore remains one based on F hearsay. However, Mr. Israel contended that, in respect of a judgment sounding in money, the general rule is that the onus rests on the party appealing against such judgment to show why execution should be suspended, and that the respondent had not raised any grounds at all in justification of such suspension. Mr. Harms, for the respondent, argued that the onus rests on the applicant to show why leave should be granted G to execute pending the appeal, and it became common cause between counsel that this application should be determined by deciding where the onus lies.

In support of his submission on the general rule, Mr. Israel relied on Kallenbach and Others v Hardwood Timber Co., 1922 W.L.D. 173: Skinner H v. Shapiro (11), 1924 W.L.D. 174; Rand Daily Mails Ltd. v Johnston, 1928 W.L.D. 85. These cases certainly support counsel's submission, but it must be remembered that they were all decided on the basis of sec. 36 of the (Transvaal) Administration of Justice Proclamation, 14 of 1902, as adapted by the changes effected by sec. 103 of the South Africa Act, 1909. Sec 36, as so adapted, provided as follows:

'36. It shall be lawful for the Witwatersrand Local Division of the Supreme Court to direct that the judgment decree or order appealed against shall be carried into execution or that execution thereof shall be suspended pending the said appeal as to such Court may in each case appear to be most consistent with

Margo J

real and substantial justice. And in case such judgment decree or order shall be carried into execution the party respondent shall before the execution... enter into good and sufficient security to be approved by the Registrar... for the due performance of such judgment decree or order as the Appellate Division or the Transvaal Provincial Division... shall think fit to make; and in case the execution... shall be suspended pending the said appeal the party appellant shall enter into A good and sufficient...