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[2017] ZAWCHC 149
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Arangies and Another v Business Partners Ltd (3547/2006) [2017] ZAWCHC 149 (15 December 2017)
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case number 3547/2006
LEONARD
ARANGIES FIRST
APPLICANT
BEN
KNOETZEN SECOND
APPLICANT
And
BUSINESS PARTNERS
LTD RESPONDENT
JUDGMENT DELIVERED ON 15
DECEMBER 2017
THULARE AJ
[1] This is an
application for the setting aside of a warrant of execution issued in
favour of the respondent against the applicants.
The applicants also
seek an order condoning their non-compliance with time frames after
they were granted an opportunity to bring
this application, arising
out of their urgent application to restrain the respondent from
proceeding with a section 65 enquiry
of the Magistrates’ Court
Act, 1944, in Stellenbosch.
[2]
The respondent opposes both applications. The respondent’s case
is that the applicants’ are only galvanized into
action when
the respondent takes action in furtherance of execution of the
judgment, and that the applicants are involved in dilatory
tactics
employed to stave off execution, which constitutes abuse of process.
Should the court find that the writ is invalid or
unenforceable for
any reason, then the respondent’s alternative is a conditional
counter-application for the revival of the
judgment granted in its
favour and to the extent necessary for the issue of a new writ
pursuant thereto.
The
applicants’ application for condonation was granted and
argument on the application for setting aside the warrant of
execution was heard.
[3] On 8 August 2006
summary judgment was granted against both applicants, as sureties and
co-principal debtors, jointly and severally
the one to pay the other
to be absolved, for payment of sums of money and interest, plus costs
on attorney and client scale. Gaduron
Trading 1014 (Pty) Ltd
(Gaduron), which was the first defendant in that application and
against which judgment was also granted,
is not a party to the
current application.
[4]
A writ of execution was issued by the Registrar of this Court on 2
May 2007. At that time, the chosen
domicilium
citandi et executandi (domicilium)
of
Gaduron, which was type written on the writ of execution, was at B.
Street, Stellenbosch and/or […] O Street, Schuilplaats,
Stellenbosch. The
domicilium
of the first
applicant was type written as […] O. Street, Schuilplaats,
Stellenbosch and that of the second applicant was
type written as […]
M Street, Brackenfell. The writ bore the official date stamp of the
Registrar of this Court, a stamp
of Mr T Yalezo indicating his office
as Registrar of this Court and his signatures.
[5] Correspondence from
the respondent’s attorneys to the respondent on 15 May 2007
indicated that the progress report for
that day was that the
respondent’s attorneys had instructed the sheriff to attach the
movable assets and not to remove. The
respondent relies on this
correspondence as evidential material to indicate that it did take
steps to execute the writ and that
it did not sit back for nine
years. The respondent cannot trace the sheriff’s return in this
regard. Not only is there a
new sheriff in Stellenbosch, but the
sheriff’s office informed the respondent that returns are only
kept on their systems
and archives for five years. The respondent’s
submission is that the writ was executed between 2 May and 31 August
2007.
[6] On 2 October 2007,
the applicants made a payment of R220 000-00 to the respondent after
the applicants had sold their store,
and the applicants sought to
negotiate that the payment be in full and final settlement of the
total judgment debt. The respondent
refused the applicants’
request for the amount paid to be a full and final settlement, and
advised the applicant’s
accordingly.
[7]
On 5 February 2016, an amended writ was issued by the Registrar. The
only alterations that happened in those amendments were
the change of
the
domicilium
of
Gaduron and both applicants. “
No
1 Drostdy Centre”
was
endorsed in handwriting on top of B. Street, and B. Street was
deleted with a stroke of a pen in relation to Gaduron. “
No
[…] M. Street, Stellenbosch”
was
endorsed in handwriting on top of, and […] O. Street,
Schuilplaats, Stellenbosch was deleted with a stroke of a pen in
respect of first applicant. “
No
[…] G. Close, La Rochelle, Bellville”
was
endorsed in handwriting on top of, and 13 Magnolia Street,
Brackenfell was deleted with a stroke of a pen. On top of the three
amendments only, appears the official date stamp of the Registrar of
this Court, and the signature of Pieterson as Registrar of
this
Court.
[8] The applicants raised
two issues. Firstly, the applicants rely on superannuation of a
judgment after three years from the date
on which it was pronounced,
where the judgment creditor did not proceed with execution steps. The
second issue is whether an issued
writ of execution remains in force
if the judgment became superannuated. As the applicants put the
second issue differently, it
was whether the superannuation of a
judgment is the exception to the rule that a writ of execution may be
executed at any time
without being renewed until judgment has been
settled in full.
[9] At the time of the
judgment and the issue of the writ, Rule 66 of the Uniform Rules of
Court read as follows:
“
66
Superannuation
(1)
After the expiration of three years from the
day whereon a judgment has been pronounced, no writ of execution may
be issued unless
the debtor consents to the issue of the writ or
unless the judgment is revived by the court on notice to the debtor,
but in such
a case no new proof of the debt shall be required. In the
case of judgment for periodic payments, the three years shall run, in
respect of any payment, from the due date thereof.
(2)
Writs of execution of a judgment once issued
remain in force, and may, subject to the provisions of subparagraph
(ii) of paragraph
(e) of sub-section (2) of section three of the
Prescription Act, 1943 (Act 18 of 1943), or subparagraph (ii) of
paragraph (a) of
section 11 of the Prescription Act, 1969 (Act 66 of
1969), at any time be executed without being renewed until judgment
has been
satisfied in full.”
[10] Rule 66(1) is
capable of an interpretation that superannuation determined the time
during which a writ of execution may be
issued, and that once the
writ had been issued within three years, superannuation could be
avoided. If it was that simple, it would
follow that because judgment
was obtained on 8 August 2006 and the writ was issued on 6 June 2007,
the writ was issued within three
years of the judgment and that as a
result the respondent had avoided superannuation.
[11]
Counsel for the applicants’, Mr Montzinger, referred this court
to authorities to the effect that a warrant of execution,
even though
issued within three years, unless it was acted upon within the
determined time period, that issue could not save a
judgment from
superannuation [
Rigg
v Strydom
1914 CPD
583
;
Bezuidenhout v
Deyzel
1915 CPD
458].
Both authorities dealt with the position in the magistrates’
courts.
[12] Interpreting section
63 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944)
which is almost in similar terms to
Rule 66(1), the court said the
following in
Absa Bank Ltd v Snyman
2015 (4) SA 329
(SCA) at
paras 14 and 15:
“
[14] …
In the case of a judgment sounding in money, the result was that the
execution sale had to occur within that period.
I agree with the
author DE van Loggerenberg of
Jones
& Buckle The Civil Practice of the Magistrates’ Courts in
South Africa
10
ed (2012) vol 1, in his commentary on s 63, that the later cases also
reflect the correct interpretation of this section. Purely
on the
basis of logic the legislature’s intent could hardly have been
that a judgment creditor can delay execution of a judgment
indefinitely as long as he or she had obtained a warrant of execution
within three years and caused it to be reissued on a regular
basis
thereafter. Secondly, the legislature must be presumed to have been
aware of the law, as represented by these later decisions,
when the
Magistrates’ Courts Act was
promulgated in 1944. Thirdly, the
Afrikaans text, which was signed by the executive, renders the
position even clearer. It provides:
“
Ten
uitvoerlegging teen goedere kan nie uit hoofde van ‘n vonnis
geskied
na
verloop van drie jaar vanaf datum waarop dit gefel is … nie …”
[My emphasis.]
[15] Properly
construed,
s 63
therefore provides that a judgment sounding in money
becomes superannuated, unless the execution sale takes place within
three
years of that judgment. Hence the date on which the warrant of
execution is issued is of no consequence. It goes without saying
that
rule 36(5)
cannot change the meaning of s 63 of the Act. It follows
that the date of reissue of a warrant under this rule cannot avoid
superannuation
once the three- year period from the date of judgment
elapses. In this context it is equally of no consequence. Extension
can only
occur by order of court, …”
[13] If this was a matter
from the magistrates’ courts, Mr Motzinger’s argument on
the first argument of superannuation
would have merit. The warrant
under the judicial spotlight in search for justice in this matter,
however, is the one issued in
the High Court. The matter, in my view,
turns on the effect of Rule 66(2) on Rule 66(1), as both then read.
Section 11(a)(ii)
of the
Prescription Act, 1969
, to which
Rule 66(2)
refers, provides as follows:
“
11
Periods of prescription of debts
The periods of prescription of
debts shall be the following:
(a)
thirty years in respect of – …
(ii) any judgment debt;”
As I understand
Rule
66(2)
, a writ of execution issued by the Registrar of a High Court
remains in force and may be executed at any time without being
renewed
until the judgment has been satisfied in full for as long as
that debt has not prescribed.
[14] In
Western
Assurance Co. v Caldwell’s Trustee
1918 AD 262
at 271 it is
said:
“
Every
Court has an inherent right to prevent an abuse of its process in the
form of frivolous or vexatious litigation (Reichel v
Magrath,
14 AC
665).
”
At 272 the court
proceeded as follows:
“
This
inherent right to prevent vexatious litigation has been recognized
and freely exercised in South Africa. It is the principle
which
underlies the interference of our Courts with lawsuits where the
costs of prior proceedings remain unpaid. In some cases
such
interference has been expressly confined within the limits of that
principle (e.g.
Van
Ryn Mines v Cooper
,
1911 T.P.D.) 37. In others it has been extended without definite
reference thereto (e.g.
Thacker
v Fourie
,
14 SC 123)
, --- but without discussion of or reliance upon any other
principle. This inherent right has also been exercised in regard to
litigation
which was calculated, as and when prosecuted, to hamper
the administration of justice (
Attorney-General
re Jefferson v Raynor
,
27 NLR 1.
45).”
At 274 the court
continued:
“
It is a
power, however, which, as was said by Lord HERSCHELL, ought to be
sparingly exercised, and only in very exceptional cases.”
While, at 275 the court
said:
“
Thus
LINDLEY, L.J., in the case of
in
re Payne
(23
Ch. D. 288)
said: ‘We must act on principle, and the principle
is that a person ought not to be harassed by vexatious litigation.’”
[15]
Rule 66(2)
provide
that the time limit within which execution of a writ issued by the
Registrar is to be concluded is 30 years. In my understanding
of
Rule
66(1)
, the judgment would become superannuated by the effluxion of
time for want of execution if the writ was not issued within three
years. In my view, against the background of the terminology employed
in both
Rule 66(1)
and
66
(2) as they read then, it is not advisable
to lay down a general rule in the manner prayed for by the
applicants, to wit, in the
sense that a judgment of a High Court
superannuates after three years from the date in which it was
pronounced, where the judgment
creditor did not proceed with
execution steps within those three years if the writ was issued
within that period. In my view, the
circumstances of each case must
be investigated, ventilated and pronounced upon before a decision can
be arrived at.
[16]
The applicants’ prayers amount to the respondent being placed
in a far worse position than a litigant who did not at
all issue a
writ within three years of a judgment, whose judgment would have
superannuated in terms of
Rule 66(1).
Rule 66(1)
required of a
judgment creditor who wanted to issue a writ after three years of the
date of judgment to explain the reasons for
the delay to the debtor,
who might consent to the issue of the writ, or to explain such
reasons for the delay to the court, which
might revive the judgment
after hearing the debtor on such application by the creditor. The
applicants simply ask for this court
to slam its doors in the face of
the respondent through their claim of superannuation, and by
extension suggesting that the respondent
is vexatious. They seek
condemnation of the respondent without the respondent even being
afforded an opportunity to be heard on
the reasons for their delay.
The
audi alteram
partem rule
is a
sacred rule of our law (
Sachs
v Minister of Justice; Diamond v Minister of Justice
1934
AD 11
at 38) and should not be denied lightly. The applicants seek to
gain an advantage to which in law, but for the delay, they are not
entitled, to wit, that of a blanket denial of the respondent to
exercise its benefits, privileges and rights provided by law.
[17] Fairness of court
processes, which processes include execution of judgments, in my
view, includes appropriate time periods
within which various steps
have to be taken. It includes an honest and straightforward but
also reasonable, acceptable and
just assertion of arrangements of
conduct to complete and finalise court processes. The conduct of the
litigants should be reasonable
and justifiable. There has to be
safeguards against injustices. Those in whose favour judgments have
been granted and who unduly
delay execution for unexplained long
periods of time, must face up to the fact that undue delay is at
their own risk if it amounts
to impediment of progress in the
administration of justice.
[18] It follows that, in
my view, a litigant cannot just sit back, abuse the process of court
by an undue long delay of the execution
of a writ simply because such
writ remain in force for 30 years. The reasons for the long delay
would assist the court in determining
whether the delay is reasonable
and justifiable. Where there has been a considerable lapse of time
between the date of judgment
and the execution of the writ, it is in
the discretion of the court to allow such execution [
Bernstein v
Bernstein
1948 (2) SA 205
(W)]. In
Molala v Minister of Law
and Order and Another
[1993] 3 All SA 255
(W) the court said at
258:
“
The
approach which I am bound to apply is therefore not simply whether
more than a reasonable time has elapsed. It should be assessed
whether a facility which is undoubtedly available to a party was
used, not as an aid to the airing of disputes and in that sense
moving towards the administration of justice, but knowingly in such a
fashion that the manner of exercise of that right would cause
injustice. The issue is whether there is behavior which oversteps the
threshold of legitimacy. Nor, in the premises, can plaintiff
be
barred simply because defendants were prejudiced. The increasingly
difficult position of the defendants is a factor which may
or may not
assist in justifying an inference that plaintiff’s intentions
were directed to causing or to increasing such difficulties.
But the
enquiry must remain directed towards what plaintiff intended, albeit
in part by way of
dolus
eventualis
.
The increase in defendants’ problems is, secondly, a factor
insofar as the Court, on an overall view of the case, is to
exercise
a discretion about how to deal with a proven abuse of process.”
[19] Around 15 May 2007
the respondent and their attorneys were already in discussion with
the office of the sheriff around the
process of execution in relation
to the judgment. The sheriff was instructed to attach but not to
remove the movable assets. The
writ was also before the Registrar on
6 June 2007. The facts also show that the parties were in discussion
around the satisfaction
of the judgment. Amongst others it was agreed
that the proceeds of the sale of the business, Gaduron, would be
used, and in fact
R220 000-00 was paid on 2 October 2007 to the
respondent, as part of the satisfaction of the judgment. There are no
facts to sustain
a conclusion that the respondent at any stage
abandoned the part of the judgment that remained unsatisfied.
[20] In my view, there
was an amendment and not a re-issue of the writ. Issue includes
receipt of court process by the Registrar
from the litigant who is
filing; allocation of a case number and/or registration of that
process under the case number on the court
registers; signature and
stamping of such documents by the Registrar as acknowledgement of
legal industry; and handing back the
process to an appropriate court
official for further attention; and where appropriate, archiving of
the duplicate originals in
the court records. The writ was already
issued on 2 May 2007. Only the addresses of the applicants were
amended on 5 February 2016.
[21] The respondent
sought amendment of the writ in relation to the addresses of both
applicants, in order to pursue execution of
the judgment. The
inescapable conclusion is that amongst others, the applicants changed
addresses in relation to both their places
for purposes of service of
court processes from the date on which the writ was issued. There is
no indication that the applicants
kept the respondent informed of
their change of address at all times in the nine years they are
complaining of. It cannot safely
be said that the respondent was at
all times aware of where to find both applicants in furtherance of
execution of the judgment.
A fugitive from justice cannot, when
found, be heard to claim a benefit from the period of his hiding.
[22] I am not persuaded
that the judgment granted in favour of the respondent superannuated.
I am also not persuaded that the respondent’s
pursuit of the
satisfaction of the judgment amounts to abuse of court process under
the circumstances. Where the judgment remained
unsatisfied and the
debtors changed addresses without any indication that he informed his
creditors, and the debtor did not contemporaneous
with the granting
of judgment have sufficient means to satisfy a judgment, the debtor
cannot be heard to complain of undue delay
in execution of a writ, to
which such debtor is contributory.
[23] For these reasons I
make the following order:
1.
The application to set aside the writ
of execution issued by the Registrar on 2 May 2007 is dismissed with
costs.
…………………………………………………………
DM THULARE
ACTING JUDGE OF THE HIGH
COURT