IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

High Court Case No: A47/2011
In the matter between

and

ROGERS AJ

1. This is an appeal from a judgment given by the Cape Town Magistrate's Court. By his order the magistrate set aside a warrant of execution which the appellant ("Eatwell") had taken out against the respondent ("LDC').

3. In June 2010 LDC withdrew its action and tendered costs, allegedly on the basis that Eatwell had been placed under debt review. Eatwell's costs were taxed on 10 July 2010 in a sum of R5 018,50. When Eatwell sought payment of the taxed costs, LDC claimed that the amount of R5 018,50 had been discharged by set-off against the sum of R10 000 that she admittedly owed LDC.

7. This preliminary defence in turn gave rise to an argument by LDC that by virtue of the alleged cession Eatwell had not enjoyed standing to obtain the warrant of execution. This counter-argument was not raised in a replying affidavit but only in argument before the magistrate. In pronouncing judgment the magistrate said that the papers did not support Eatwell's argument that a cession had been concluded. There was no basis for that finding. Eatwell's version was undisputed on the papers, and she had the evidence afforded by the signed deed of cession.

12. On appeal Mr Basson also made submissions to the effect that the alleged term was implausible or could not mean what Eatwell said. Again, none of this was raised in the papers in the court below.

18.	I concur and it is so ordered.

16 August 2011