Hack Stupel and Ross Attorneys v Kgang

The respondent borrowed money from Ms Joyce Vilakazi and defaulted on a written acknowledgment of debt. After default judgment was obtained in the magistrates’ court, various payments were made over many years. Acting for Vilakazi, the appellant attorneys caused writs of execution to be issued, ultimately leading to the attachment and sale in execution of the respondent’s immovable property. The respondent later approached the Pretoria High Court to rescind the warrant of execution and set aside the sale. Due to delays and subsequent transfers of the property, he amended his relief to claim damages equal to the market value of the property. The High Court ordered the appellant attorneys to pay R63 000 as damages, holding that the sale in execution was wrongful. The attorneys appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court order was set aside and replaced with an order dismissing the application with costs.

The case reaffirms fundamental procedural principles in South African civil litigation, particularly that damages are generally not claimable in motion proceedings and must be properly pleaded and proved. It underscores the limits of judicial intervention, the prohibition on judges gathering evidence independently, and the requirement that litigants place sufficient admissible evidence before court to establish liability and quantum.