ZIYAMBI
AJA:
[1]
This
is an appeal against a judgment of the High Court staying execution
of a judgment granted to the appellant.
THE
BACKGROUND FACTS
[2]
On 29 August 2012 the appellant and the first respondent concluded a
'foreign currency denominated lease' agreement (“the lease
agreement”) in terms of which the first respondent hired from the
appellant certain earthmoving and other equipment as described in the
schedule to the lease agreement. The lease was to expire on 28
September 2014. The second and third respondents executed unlimited
guarantees in terms of which they bound themselves as sureties and
co-principal debtors together with the first respondent for the due
performance by the latter of the terms of the lease.
[3]
It is common cause that the first respondent having breached the
conditions of the lease agreement by its failure to pay monthly
rentals, the appellant issued summons out of the High Court claiming
US$88,225.14 being arrear rentals as at the date of summons. On 10
September 2014, no appearance having been entered to defend, default
judgment was obtained against all three respondents for the sum
claimed, interest and costs as well as the return of the property
hired.
[4]
It is also common cause that on the 22 October 2014, the respondent
made payment to the appellant of US$50 000.00 followed, on 3 and 4
March 2015, by further payments of US$30,000.00 and US$8,000.00,
respectively, making a total of US$88,000.00.
[5]
The above payments were appropriated by the appellant, not to the
satisfaction of the judgment debt, but to arrear rentals which had
arisen after the date of summons. Thereafter, according to the
appellant, an amount of US$88 000.00 which included a residual
payment in terms of the lease remained outstanding. The appellant
claimed that it was empowered by clause 7 of the lease agreement to
appropriate the payments in the manner that it did. Clause 7
provides:
“The
lessor may appropriate at his sole discretion, any payments received
from the lessee to any indebtedness due by the lessee to the lessor,
the lessee waives his rights to appropriate payments to any other
debt or account of his choice.”
Therefore,
using the judgment obtained in the High Court,
the appellant caused a writ of execution to be issued and instructed
the Sheriff to recover the judgment debt. On 26 January 2015, 7 buses
and 2 trailers belonging to the respondent were attached in
execution. The amount to be recovered was stated to be US$ 92,773.14
being the total of the judgment debt and costs.
[6]
The threat of removal and sale of the property attached for the
recovery of the amount stated in the writ drove the respondents to
seek from the High Court an order for the stay of execution of the
judgment.
In
its founding affidavit the first respondent averred that with the
payment of US$88 000.00, the principal amount claimed in the summons
had been fully paid and that what remained was the sum of $225.00,
interest on the judgment debt which was yet to be calculated and
costs which were still to be taxed. The respondents stood ready and
willing to discharge these balances, which they claimed were
relatively nominal, as soon as they were advised of the quantum
thereof. However, when the respondents enquired as to the
outstanding balance, the appellant' s legal practitioners presented
them with a 'deed of settlement' which required the respondents
to acknowledge, and undertake to repay in fixed instalments, a total
sum of US$138,225.14. That sum included arrear rentals as at 20
January 2015 and the 'residual value for the leased equipment'.
Failure by the respondents to sign the deed of settlement would
result in the goods attached being removed and sold. It was averred
that the goods attached have an estimated value of US$1 million.
[7]
The respondents averred that the appellant's conduct in seeking to
sell the attached goods when the debt had been substantially
satisfied, save for the paltry sum of US$225.00 as well as costs and
interest which had not been determined, was unlawful, unjust and
oppressive. The removal of the vehicles would greatly disrupt the
business of the first respondent since the buses are used for the
transportation of fare paying passengers in the course of the first
respondent's business.
Further,
the execution was not for the bona
fide
purpose of recovering the amount due in terms of the judgment of the
court since the judgment had been satisfied, save for the small
amounts which the respondent had tendered to pay upon being advised
of the quantum thereof. It was therefore unlawful for the appellant
to use the warrant of execution to compel the respondents to sign the
deed of settlement.
ISSUES
[8]
The two issues raised in the grounds of appeal are: whether the court
erred when it determined that the appellant was obliged to apportion
the respondents' payment of US$88 000.00 towards the settling
of the judgment debt; and secondly, whether the court erred in its
determination that once the appellant had issued summons for a stated
amount, the payments made by the respondent could not be apportioned
to any debt which arose after the date of issue of the summons.
However, this being an application for the discretionary remedy of a
stay of execution of one of its judgments, the question before the
court a
quo
was whether the respondents had alleged circumstances which persuaded
it to exercise its discretion in favour of the latter.
[9]
Mr Magwaliba
took the point, which was strongly resisted by Mr Mpofu,
that the appeal was invalid since it was an appeal against a decision
reached in the exercise of the court's discretion and no allegation
was made in the grounds of appeal that “the exercise of the
discretion was so outrageous in its defiance of logic that no
reasonable judicial officer applying his or her mind to the facts
could arrive at such a decision”. This point, raised in
limine
was, in our view, correctly withdrawn by counsel. However, whilst a
failure to allege gross error or misdirection would not in my view
render the appeal a nullity, the substance of the application as well
as the order granted was a stay of execution of a judgment of the
High Court. Such an order is granted by the court in the exercise of
its inherent power to suspend the execution of its orders in
appropriate circumstances.
The decision as to what in any given case is an appropriate
circumstance is made by the court after consideration of facts placed
before it. In exercising this inherent power the court exercises a
judicial discretion. Any attack, therefore, on a decision made in the
exercise of such discretion must necessarily be aimed at the manner
of the exercise of the Court's discretion. Thus, while I agree with
Mr Mpofu
that such 'incantation' is unnecessary, it must appear in the
grounds of appeal that an improper or incorrect exercise of the
court's discretion is what is being put in issue. None of the
grounds of appeal is directed against the propriety or otherwise of
the exercise of the court's discretion.
[10]
The general rule governing an appellate court in an appeal against an
order made by a lower court in the exercise of its judicial
discretion is that:
“It
is not enough that the appellate court considers that if it had been
in the position of the primary court, it would have taken a different
course. It must appear that some error has been made in exercising
the discretion. If the primary court acts upon a wrong principle, if
it allows extraneous or irrelevant matters to guide or affect it, if
it mistakes the facts, if it does not take into account some relevant
consideration, then its determination should be reviewed and the
appellate court may exercise its own discretion in substitution…”
As
already observed, it was not the appellant's case that the court
had, for any of the reasons set out above, exercised its discretion
improperly. The issues raised on appeal show that the appellant
disagreed with the decision of the court that the money paid by the
respondents after the judgment was entered was to be applied to the
settlement of the judgment debt. But as shown above, mere
disagreement with the reasons given by the court
a quo
for its decision is insufficient justification for interference by
this Court with the decision of the lower court made in the exercise
of its discretion. Not only was no attack made by the appellant on
the manner of exercise by the court of its discretion in the matter,
but the learned Judge properly considered and assessed the facts
placed before her before arriving at what, in my opinion, is a
well-considered decision.
[11]
Accordingly, no basis having been established for interference by
this Court with the judgment of the court a
quo,
the appeal must be, and it is hereby, dismissed with costs.
HLATSHWAYO
JA: I
agree
PATEL
JA: I
agree
Gill,
Godlonton & Gerrans,
appellant's legal practitioners
Hove
& Associates,
respondents' legal practitioners.
1.
Supra
at [3]
2.
Herbstein
& Van Winsen:
the Civil Practice of the High Courts of South Africa 5th
ed. Vol2 at p 1087; Mupini
v Makoni 1993
(1) ZLR 80 (S) at 83
3.
Barros
and Anor v Chimphonda
1999 (1) ZLR 58 (S) @ 62F-63A
